<PAGE>
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): May 27, 1999
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 333-44299 36-4202202
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
Incorporation) Identification Number)
-------------------------------------
500 West Monroe Street
Chicago, IL 60661
(principal executive offices)
(312) 441-7000
Item 2. ACQUISITION OR DISPOSITION OF ASSETS
On May 27, 1999, a single series of certificates, entitled Commercial
Mortgage Pass-Through Certificates, Series 1999 PH-1 (the "Certificates"), was
issued pursuant to a pooling and servicing agreement dated as of May 1, 1999
(the "Pooling and Servicing Agreement"), attached hereto as Exhibit 4.1, among
Heller Financial Commercial Mortgage Asset Corp. (the "Depositor") as depositor,
First Union National Bank, as Master Servicer, Lennar Partners, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee and ABN Amro Bank N.V.,
as fiscal agent. The Certificates consist of eighteen classes identified as the
"Class A-1 Certificates," the "Class A-2 Certificates," the "Class X
Certificates," the "Class B Certificates," the "Class C Certificates," the
"Class D Certificates," the "Class E Certificates," the "Class F Certificates,"
the "Class G Certificates," the "Class H Certificates," the "Class J
Certificates," the "Class K Certificates," the "Class L Certificates," the
"Class M Certificates," the "Class N Certificates," the "Class R-I
Certificates," the "Class R-II Certificates," and the "Class R-III
Certificates," respectively, and were issued in exchange for, and 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 190
fixed rate, multifamily and commercial mortgage loans (the "Mortgage Loans")
having, as of the close of business on May 1, 1999 (the "Cut-off Date"), an
aggregate principal balance of $1,009,736,304, after taking into account all
payments of principal due on the Mortgage Loans on or before such date, whether
or not received.
The Class A-1 Certificates have an initial Class Principal Balance of
$204,000,000. The Class A-2 Certificates have an initial Class Principal Balance
of $535,631,000. The Class X
<PAGE>
Certificates have an initial Class X Notional Amount of $1,009,736,304. The
Class B Certificates have an initial Class Principal Balance of $22,719,000. The
Class C Certificates have an initial Class Principal Balance of $20,195,000. The
Class D Certificates have an initial Class Principal Balance of $53,011,000. The
Class E Certificates have an initial Class Principal Balance of $12,622,000. The
Class F Certificates have an initial Class Principal Balance of $37,865,000. The
Class G Certificates have an initial Class Principal Balance of $17,670,000. The
Class H Certificates have an initial Class Principal Balance of $35,341,000. The
Class J Certificates have an initial Class Principal Balance of $20,195,000. The
Class K Certificates have an initial Class Principal Balance of $7,573,000. The
Class L Certificates have an initial Class Principal Balance of $15,146,000. The
Class M Certificates have an initial Class Principal Balance of $7,573,000. The
Class N Certificates have an initial Class Principal Balance of $20,195,304.
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of Business Acquired Not applicable.
(b) Pro Forma Financial Information Not applicable.
(c) Exhibits.
Exhibit No.
of Item 601 of
Exhibit No. Regulation S-K Description
- ----------- -------------- -----------
4.1 4 Pooling and Servicing Agreement dated as of
May 1, 1999 among Heller Financial Commercial
Mortgage Asset Corp. as Depositor, First
Union National Bank, as Master Servicer,
Lennar Partners, Inc., as Special Servicer,
LaSalle Bank National Association, as
Trustee, and ABN Amro Bank N.V., as Fiscal
Agent.
2
<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.
Dated: June 15, 1999
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
By: /s/ Robert S. Kukulka
--------------------------------
Name: Robert S. Kukulka
Title: Senior Vice President
<PAGE>
- --------------------------------------------------------------------------------
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.,
AS DEPOSITOR,
AND
FIRST UNION NATIONAL BANK,
AS MASTER SERVICER,
AND
LENNAR PARTNERS, INC.,
AS SPECIAL SERVICER,
AND
LASALLE BANK NATIONAL ASSOCIATION,
AS TRUSTEE,
AND
ABN AMRO BANK N.V.,
AS FISCAL AGENT
POOLING AND SERVICING AGREEMENT
DATED AS OF MAY 1, 1999
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999 PH-1
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C> <C>
ARTICLE I. DEFINITIONS.....................................................................................4
Section 1.1. Definitions..................................................................................4
Section 1.2. Certain Calculations in Respect of the Mortgage Pool........................................45
Section 1.3. Interpretation..............................................................................46
ARTICLE II. DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES.................................................46
Section 2.1. Conveyance of Mortgage Loans................................................................46
Section 2.2. Acceptance by Trustee.......................................................................49
Section 2.3. Sellers'Repurchase of Mortgage Loans for Document Defects and Breaches of Representations
and Warranties...........................................................................50
Section 2.4. Representations and Warranties..............................................................51
Section 2.5. Conveyance of Interests.....................................................................52
ARTICLE III. THE CERTIFICATES...............................................................................52
Section 3.1. The Certificates............................................................................52
Section 3.2. Registration................................................................................53
Section 3.3. Transfer and Exchange of Certificates.......................................................53
Section 3.4. Mutilated, Destroyed, Lost or Stolen Certificates...........................................60
Section 3.5. Persons Deemed Owners.......................................................................60
Section 3.6. Book-Entry Certificates.....................................................................60
Section 3.7. Notices to Clearing Agency..................................................................61
Section 3.8. Definitive Certificates.....................................................................61
ARTICLE IV. ADVANCES.......................................................................................62
Section 4.1. P&I Advances by Master Servicer.............................................................62
Section 4.2. Servicing Advances..........................................................................63
Section 4.3. Advances by Trustee and Fiscal Agent........................................................64
Section 4.4. Evidence of Nonrecoverability...............................................................64
Section 4.5. Advance Interest............................................................................65
Section 4.6. Merger or Consolidation of Fiscal Agent....................................................102
Section 4.7. Limitation on Liability of the Fiscal Agent and Others.....................................102
Section 4.8. Indemnification of Fiscal Agent............................................................103
ARTICLE V. COLLECTION ACCOUNT; DISTRIBUTION ACCOUNT; CERTAIN TRUSTEE REPORTS..............................65
Section 5.1. Collection Account..........................................................................65
Section 5.2. Application of Funds in the Collection Account..............................................68
Section 5.3. Distribution Account; Excess Interest Distribution Account; Interest Reserve Account........70
Section 5.4. Trustee Reports; Access to Information......................................................72
Section 5.5. Trustee Tax Reports.........................................................................76
ARTICLE VI. DISTRIBUTIONS..................................................................................76
Section 6.1. Distributions Generally.....................................................................76
Section 6.2. REMIC I.....................................................................................77
Section 6.3. REMIC II....................................................................................78
</TABLE>
i
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<CAPTION>
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Section 6.4. REMIC III...................................................................................82
Section 6.5. Allocation of Realized Losses and Expense Losses............................................87
Section 6.6. Appraisal Reductions........................................................................87
Section 6.7. Compliance with Withholding Requirements....................................................88
ARTICLE VII. CONCERNING THE TRUSTEE AND THE FISCAL AGENT....................................................88
Section 7.1. Duties of Trustee and the Fiscal Agent......................................................88
Section 7.2. Certain Matters Affecting the Trustee and the Fiscal Agent..................................90
Section 7.3. Trustee and the Fiscal Agent Not Liable for Certificates or Interests or Mortgage Loans.....91
Section 7.4. Trustee and Fiscal Agent May Own Certificates...............................................92
Section 7.5. Eligibility Requirements for Trustee and Fiscal Agent.......................................92
Section 7.6. Resignation and Removal of Trustee and Fiscal Agent.........................................92
Section 7.7. Successor Trustee or Fiscal Agent...........................................................94
Section 7.8. Merger or Consolidation of Trustee .........................................................94
Section 7.9. Appointment of Co-Trustee, Separate Trustee or Custodian...................................95
Section 7.10. Authenticating Agents.......................................................................96
Section 7.11. Indemnification.............................................................................97
Section 7.12. Fees and Expenses of Trustee and Fiscal Agent...............................................98
Section 7.13. Collection of Moneys........................................................................98
Section 7.14. Notification to Holders.................................................................... 99
Section 7.15. Representations and Warranties of Trustee and Fiscal Agent................................. 99
Section 7.16. Fiscal Agent Termination Event.............................................................101
Section 7.17. Procedure Upon Termination Event..................................ERROR! BOOKMARK NOT DEFINED.
Section 7.18. Impact of Year 2000 Compliance.............................................................103
ARTICLE VIII. ADMINISTRATION AND SERVICING OF MORTGAGE LOANS................................................104
Section 8.1. Servicing Standard; General Powers and Duties..............................................104
Section 8.2. Collection of Mortgage Loan Payments.......................................................107
Section 8.3. Collection of Taxes, Assessments and Similar Items; Servicing Accounts and Reserve
Accounts................................................................................107
Section 8.4. Sub-Servicing Agreements...................................................................109
Section 8.5. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage..............111
Section 8.6. Enforcement of Due-On-Sale Clauses; Assumption Agreements; Subordinate Financing...........113
Section 8.7. Realization Upon Defaulted Mortgage Loans..................................................115
Section 8.8. Trustee to Cooperate; Release of Mortgage Files............................................118
Section 8.9. Documents, Records and Funds in Possession of Master Servicer or Special Servicer to be Held
for Trustee for the Benefit of Certificateholders.......................................119
Section 8.10. Servicing Compensation.....................................................................119
Section 8.11. Master Servicer Reports; Account Statements................................................122
Section 8.12. Annual Statement as to Compliance..........................................................122
Section 8.13. Annual Independent Public Accountants'Servicing Report.....................................122
Section 8.14. Certain Reports Regarding the Mortgage Loans and the Mortgaged Properties..................123
Section 8.15. Certain Available Information and Related Rights of the Master Servicer and the Special
Servicer................................................................................126
</TABLE>
ii
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<TABLE>
<CAPTION>
<S> <C> <C>
Section 8.16. Rule 144A Information......................................................................128
Section 8.17. Inspections; Collection of Financial Statements............................................128
Section 8.18. Modifications, Waivers, Amendments, Extensions and Consents................................129
Section 8.19. Title to REO Property......................................................................133
Section 8.20. Management of REO Property.................................................................135
Section 8.21. Additional Obligations of the Master Servicer..............................................137
Section 8.22. Representations, Warranties and Covenants of the Master Servicer and the Special Servicer..138
Section 8.23. Merger or Consolidation....................................................................141
Section 8.24. Resignation of Master Servicer or Special Servicer.........................................142
Section 8.25. Assignment or Delegation of Duties by Master Servicer or the Special Servicer..............142
Section 8.26. Limitation on Liability of Master Servicer, Special Servicer and Others....................143
Section 8.27. Indemnification; Third-Party Claims........................................................143
Section 8.28. Tax Reporting..............................................................................145
Section 8.29. Certain Special Servicer Reports...........................................................145
Section 8.30. Qualification to Service...................................................................147
Section 8.31. Sale of Defaulted Mortgage Loans and REO Properties........................................147
Section 8.32. Operating Adviser; Elections...............................................................149
Section 8.33. Duties of Operating Adviser................................................................150
Section 8.34. Exchange Act Reporting.....................................................................151
ARTICLE IX. DEFAULT.......................................................................................151
Section 9.1. Events of Default..........................................................................151
Section 9.2. Trustee to Act; Appointment of Successor...................................................154
Section 9.3. Notification to Certificateholders.........................................................155
Section 9.4. Waiver of Events of Default................................................................155
ARTICLE X. PURCHASE AND TERMINATION OF THE TRUST.........................................................156
Section 10.1. Termination of Trust.......................................................................156
Section 10.2. Procedure Upon Termination of Trust........................................................158
Section 10.3. Additional Trust Termination Requirements..................................................158
ARTICLE XI. RIGHTS OF CERTIFICATEHOLDERS..................................................................159
Section 11.1. Limitation on Rights of Holders............................................................159
Section 11.2. Access to List of Holders..................................................................160
Section 11.3. Acts of Holders of Certificates............................................................161
ARTICLE XII. REMIC ADMINISTRATION..........................................................................161
Section 12.1. REMIC Administration.......................................................................161
Section 12.2. Prohibited Transactions and Activities.....................................................166
Section 12.3. Liability with Respect to Certain Taxes and Loss of REMIC Status...........................167
Section 12.4. Modifications of Mortgage Loans............................................................167
ARTICLE XIII. MISCELLANEOUS PROVISIONS......................................................................167
Section 13.1. Binding Nature of Agreement................................................................167
Section 13.2. Entire Agreement...........................................................................167
Section 13.3. Amendment..................................................................................168
</TABLE>
iii
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<TABLE>
<CAPTION>
<S> <C> <C>
Section 13.4. GOVERNING LAW..............................................................................169
Section 13.5. Notices....................................................................................169
Section 13.6. Severability of Provisions.................................................................169
Section 13.7. Indulgences; No Waivers....................................................................169
Section 13.8. Headings Not to Affect Interpretation......................................................169
Section 13.9. Benefits of Agreement......................................................................169
Section 13.10. Special Notices to the Rating Agencies.....................................................170
Section 13.11. Counterparts...............................................................................171
Section 13.12. Intention of Parties.......................................................................172
Section 13.13. Recordation of Agreement...................................................................173
</TABLE>
iv
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<TABLE>
<CAPTION>
EXHIBITS
<S> <C> <C>
Exhibit A-1 Form of Class A-1 Certificate.................................................................A-1
Exhibit A-2 Form of Class A-2 Certificate.................................................................A-2
Exhibit A-3 Form of Class B Certificate...................................................................A-3
Exhibit A-4 Form of Class C Certificate...................................................................A-4
Exhibit A-5 Form of Class D Certificate...................................................................A-5
Exhibit A-6 Form of Class E Certificate...................................................................A-6
Exhibit A-7 Form of Class F Certificate...................................................................A-7
Exhibit A-8 Form of Class G Certificate...................................................................A-8
Exhibit A-9 Form of Class H Certificate...................................................................A-9
Exhibit A-10 Form of Class J Certificate..................................................................A-10
Exhibit A-11 Form of Class K Certificate..................................................................A-11
Exhibit A-12 Form of Class L Certificate..................................................................A-12
Exhibit A-13 Form of Class M Certificate..................................................................A-13
Exhibit A-14 Form of Class N Certificate..................................................................A-14
Exhibit A-15 [reserved]...................................................................................A-15
Exhibit A-16 Form of Class R-I Certificate................................................................A-13
Exhibit A-17 Form of Class R-II Certificate...............................................................A-14
Exhibit A-18 Form of Class R-III Certificate..............................................................A-15
Exhibit A-19 Form of Class X Certificate..................................................................A-16
Exhibit B-1 Form of Initial Certification of Trustee......................................................B-1
Exhibit B-2 Form of Final Certification of Trustee........................................................B-2
Exhibit C Form of Request for Release...................................................................C-1
Exhibit D-1 Form of Transferor Certificate for Transfers of Definitive Privately
Offered Certificates........................................................................D-1-1
Exhibit D-2A Form I of Transferee Certificate for Transfers of Definitive Privately Offered
Certificates...............................................................................D-2A-1
Exhibit D-2B Form II of Transferee Certificate for Transfers of Definitive Privately Offered
Certificates...............................................................................D-2B-1
Exhibit D-3A Form I of Transferee Certificate for Transfers of Interests in Book-Entry
Privately Offered Certificates.............................................................D-3A-1
Exhibit D-3B Form II of Transferee Certificate for Transfers of Interests in Book-Entry
Privately Offered Certificates.............................................................D-3B-1
Exhibit E Form of Transferor Certificate for Transfers of REMIC Residual Certificate....................E-1
Exhibit F Form of Transfer Affidavit and Agreement for Transfers of REMIC Residual
Certificates..................................................................................F-1
Exhibit G Form of Monthly Certificateholder Report......................................................G-1
Exhibit H-1 Comparative Financial Status Report...........................................................H-1
Exhibit H-2 Delinquent Loan Status Report.................................................................H-2
Exhibit H-3 Historical Loan Modification Report...........................................................H-3
Exhibit H-4 Historical Loss Estimate Report...............................................................H-4
Exhibit H-5 REO Status Report.............................................................................H-5
Exhibit H-6 Watch List ...................................................................................H-6
Exhibit H-7 Operating Statement Analysis..................................................................H-7
Exhibit H-8 NOI Adjustment Worksheet .....................................................................H-8
Exhibit H-9 CSSA Reports .................................................................................H-9
Exhibit H-10 CSSA Reports ................................................................................H-10
Exhibit H-11 CSSA Reports ................................................................................H-11
</TABLE>
v
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<TABLE>
<CAPTION>
<S> <C> <C>
Exhibit I Mortgage Loan Report..........................................................................I-1
SCHEDULES
Schedule I HFCF Loan Schedule..............................................................................I
Schedule II PMCF Loan Schedule.............................................................................II
Schedule III Interest Reserve Loans........................................................................III
Schedule IV Letter of Credit Loans.........................................................................IV
</TABLE>
vi
<PAGE>
THIS POOLING AND SERVICING AGREEMENT is dated and effective as
of May 1, 1999 (this "AGREEMENT") among HELLER FINANCIAL COMMERCIAL MORTGAGE
ASSET CORP., as depositor (the "DEPOSITOR"), FIRST UNION NATIONAL BANK, as
master servicer (the "MASTER SERVICER"), LENNAR PARTNERS, INC., as special
servicer (the "SPECIAL SERVICER"), LASALLE BANK NATIONAL ASSOCIATION, as trustee
(the "TRUSTEE") of the trust created hereby (the "TRUST") and ABN AMRO BANK
N.V., as fiscal agent (only in its capacity as a party required to make Advances
pursuant to Article IV hereof) (the "FISCAL AGENT").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire certain
Mortgage Loans from Heller Financial Capital Funding, Inc., as seller ("HFCF"
and, in such capacity, the "SELLER"), and the remaining Mortgage Loans from
Prudential Mortgage Capital Funding, LLC ("PMCF" and, in such capacity, also a
"SELLER"), and, as of such date, the Depositor will be the owner of the Mortgage
Loans and the other property being conveyed by it to the Trustee for inclusion
in the Trust. On the Closing Date, the Depositor hereby creates the Trust and
appoints the Trustee to serve as trustee of the Trust. On the Closing Date, the
Depositor will acquire (i) the REMIC I Regular Interests and the Class R-I
Certificates as consideration for its transfer to the Trust of the Mortgage
Loans (excluding the right to Excess Interest in respect of the Anticipated
Repayment Date Loans) and the other property constituting the Trust described in
the definition of "REMIC I"; (ii) the REMIC II Regular Interests and the Class
R-II Certificates as consideration for its transfer of the REMIC I Regular
Interests to the Trust; and (iii) the REMIC III Certificates as consideration
for its transfer of the REMIC II Regular Interests and the assets comprising the
grantor trust to the Trust. The Depositor has duly authorized the execution and
delivery of this Agreement to provide for the foregoing and the issuance of (a)
the REMIC I Regular Interests and the Class R-I Certificates representing in the
aggregate the entire beneficial ownership of REMIC I, (b) the REMIC II Regular
Interests and the Class R-II Certificates representing in the aggregate the
entire beneficial ownership of REMIC II and (c) the REMIC III Certificates
representing in the aggregate the entire beneficial ownership of REMIC III, with
the Class N Certificates representing both an interest in REMIC III and the
entire beneficial ownership of the assets of the grantor trust. All covenants
and agreements made by the Depositor and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust are for the benefit
of the Holders of the Certificates. The parties hereto are entering into this
Agreement, and the Trustee is accepting the trusts created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
1
<PAGE>
REMIC I
As provided herein, the Trustee will make the election
described in Section 12.1 hereof for the segregated pool of assets consisting of
the Mortgage Loans (excluding the right to Excess Interest in respect of the
Anticipated Repayment Date Loans) and certain related assets to be treated for
federal income tax purposes as a real estate mortgage investment conduit (a
"REMIC" and, such particular segregated pool of assets, "REMIC I"). The REMIC I
Regular Interests will be designated as the "regular interests" in REMIC I and
the Class R-I Certificates will be designated as the sole class of "residual
interests" in REMIC I.
A separate uncertificated REMIC I Regular Interest will be
issued with respect to each Mortgage Loan. Each REMIC I Regular Interest will
represent the right to receive principal corresponding to the initial Stated
Principal Balance of a related Mortgage Loan and interest thereon at a
remittance rate (the "REMIC I REMITTANCE RATE") equal to the Net Mortgage Rate
of the related Mortgage Loan in effect. For purposes of Treasury regulation
Section 1.860G-1 (a)(4)(iii), the "latest possible maturity date" for each REMIC
I Regular Interest shall be the Rated Final Distribution Date. The Class R-I
Certificates will represent the sole class of residual interests in REMIC I for
purposes of the REMIC Provisions and will have no principal balances and no
remittance rate, but will be entitled to receive on each Distribution Date any
portion of the Available Distribution Amount for such Distribution Date not
otherwise deemed distributed on the REMIC I Regular Interests.
REMIC II
As provided herein, the Trustee will make the election
described in Section 12.1 hereof for the segregated pool of assets consisting of
the REMIC I Regular Interests to be treated for federal income tax purposes as a
separate REMIC (such particular pool of assets, "REMIC II"). The REMIC II
Regular Interests will be designated as representing the "regular interests" in
REMIC II and the Class R-II Certificates will be designated as representing the
sole class of "residual interests" in REMIC II for purposes of the REMIC
Provisions.
Fourteen separate uncertificated REMIC II Regular Interests
will be issued and are designated as the "regular interests" in REMIC II. The
following table irrevocably sets forth the designation, initial remittance rate
(the "REMIC II REMITTANCE RATE") and initial Uncertificated Principal Balance
for each REMIC II Regular Interest. For purposes of Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" of each REMIC II
Regular Interest shall be the Rated Final Distribution Date. The Class R-II
Certificates will have no principal balances and no remittance rate, but will be
entitled to receive on each Distribution Date any portion of the REMIC II
Distribution Amount for such Distribution Date not otherwise deemed distributed
on the REMIC II Regular Interests.
2
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<TABLE>
<CAPTION>
REMIC II REGULAR INTERESTS
- ---------------------------------------------------------------------------------------------------------------
INITIAL REMIC II INITIAL UNCERTIFICATED
DESIGNATION REMITTANCE RATE PRINCIPAL BALANCE
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
A-1 7.272% $204,000,000
- ---------------------------------------------------------------------------------------------------------------
A-2 7.272% $535,631,000
- ---------------------------------------------------------------------------------------------------------------
B 7.272% $22,719,000
- ---------------------------------------------------------------------------------------------------------------
C 7.272% $20,195,000
- ---------------------------------------------------------------------------------------------------------------
D 7.272% $53,011,000
- ---------------------------------------------------------------------------------------------------------------
E 7.272% $12,622,000
- ---------------------------------------------------------------------------------------------------------------
F 7.272% $37,865,000
- ---------------------------------------------------------------------------------------------------------------
G 7.272% $17,670,000
- ---------------------------------------------------------------------------------------------------------------
H 7.272% $35,341,000
- ---------------------------------------------------------------------------------------------------------------
J 7.272% $20,195,000
- ---------------------------------------------------------------------------------------------------------------
K 7.272% $7,573,000
- ---------------------------------------------------------------------------------------------------------------
L 7.272% $15,146,000
- ---------------------------------------------------------------------------------------------------------------
M 7.272% $7,573,000
- ---------------------------------------------------------------------------------------------------------------
N 7.272% $20,195,304
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
REMIC III
As provided herein, the Trustee will make the election
described in Section 12.1 for the segregated pool of assets hereof consisting of
the REMIC II Regular Interests to be treated for federal income tax purposes as
a separate REMIC (such particular pool of assets, "REMIC III"). The REMIC III
Regular Certificates (and, in the case of the Class N Certificates, the Class N
REMIC Interest represented by the Class N Certificates) will be designated as
representing the "regular interests" in REMIC III and the Class R-III
Certificates will be designated as representing the sole class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
Sixteen separate Classes of REMIC III Regular Certificates
will be issued, which will represent in the aggregate thirty separate "regular
interests" in REMIC III. The following table irrevocably sets forth the
designation, the pass-through rate (the "PASS-THROUGH RATE") and the initial
aggregate principal balance (the "CLASS PRINCIPAL BALANCE") for each Class of
REMIC III Regular Certificates. For purposes of Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" of each Class of REMIC
III Regular Certificates shall be the Rated Final Distribution Date. The Class
R-III Certificates will have no principal balances and no pass-through rate, but
will be entitled to receive on each Distribution Date any portion of the REMIC
III Distribution Amount for such Distribution Date not otherwise deemed
distributed on the REMIC III Regular Certificates.
3
<PAGE>
<TABLE>
<CAPTION>
REMIC III REGULAR CERTIFICATES
- ---------------------------------------------------------------------------------------------------------------
INITIAL INITIAL CLASS
DESIGNATION PASS-THROUGH RATE(1) PRINCIPAL BALANCE
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Class A-1 6.50% per annum $204,000,000
- ---------------------------------------------------------------------------------------------------------------
Class A-2 6.847% per annum $535,631,000
- ---------------------------------------------------------------------------------------------------------------
Class X(2) 0.474% per annum $1,009,736,304
- ---------------------------------------------------------------------------------------------------------------
Class B 6.982% per annum $22,719,000
- ---------------------------------------------------------------------------------------------------------------
Class C 7.082% per annum $20,195,000
- ---------------------------------------------------------------------------------------------------------------
Class D 7.246% per annum $53,011,000
- ---------------------------------------------------------------------------------------------------------------
Class E 7.272% per annum $12,622,000
- ---------------------------------------------------------------------------------------------------------------
Class F 7.272% per annum $37,865,000
- ---------------------------------------------------------------------------------------------------------------
Class G 7.272% per annum $17,670,000
- ---------------------------------------------------------------------------------------------------------------
Class H 6.500% per annum $35,341,000
- ---------------------------------------------------------------------------------------------------------------
Class J 6.500% per annum $20,195,000
- ---------------------------------------------------------------------------------------------------------------
Class K 6.500% per annum $7,573,000
- ---------------------------------------------------------------------------------------------------------------
Class L 6.500% per annum $15,146,000
- ---------------------------------------------------------------------------------------------------------------
Class M 6.500% per annum $7,573,000
- ---------------------------------------------------------------------------------------------------------------
Class N 6.500% per annum $20,195,304,000
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS. Whenever used in this Agreement,
including without limitation in the Preliminary Statement, the following words
and phrases, unless the context otherwise requires, shall have the following
meanings:
"ACCOUNTANT" means a person engaged in the practice of
accounting who is Independent and is a member of the American Institute of
Certified Public Accountants.
"ACCRUED CERTIFICATE INTEREST" means with respect to any Class
of REMIC III Regular Certificates (other than the Class X Certificates) for any
Distribution Date, the product of the Certificate Principal Balance of such
Class as of the close of the preceding Distribution Date (or, in the case of the
first Distribution Date, as of the Closing Date) and one-twelfth of the
applicable Pass-Through Rate; and with respect to the Class X Certificates, the
Class X Accrued Certificate Interest. The Accrued
- ------------------------
1 The Pass-Through Rates for the Class A-1, Class A-2, Class H, Class J,
Class K, Class L, Class M and Class N Certificates for each
Distribution Date shall be equal to the Fixed Rates per annum set forth
in the table; provided, in each case, that the Pass-Through Rate will
not exceed the weighted average of the REMIC II Remittance Rates for
such Distribution Date. The Pass-Through Rates for the Class B, Class C
and Class D Certificates for each Distribution Date shall be equal to
the Class B Certificate Rate, the Class C Certificate Rate and the
Class D Certificate Rate, respectively. The Pass-Through Rates for the
Class E, Class F and Class G Certificates for each Distribution Date
shall be equal to the REMIC II Remittance Rate.
2 The Class X Certificates will not have a Principal Amount. Interest
will accrue on the notional amount thereof, at a rate equal to the
weighted average of the REMIC II Remittance Rates minus the weighted
average of the Pass-Through Rates of the classes of certificates that
have Principal Amounts.
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Certificate Interest in respect of each Class of REMIC III Regular Certificates
for each Distribution Date shall accrue on the basis of a 360-day year
consisting of twelve 30-day months.
"ACT" shall have the meaning set forth in Section 11.3.
"ADDITIONAL MASTER SERVICING COMPENSATION" has the meaning set
forth in Section 8.10(a).
"ADDITIONAL SPECIAL SERVICING COMPENSATION" has the meaning
set forth in Section 8.10(b).
"ADDITIONAL TRUST EXPENSE" means any of the following items:
(a) Special Servicing Fees, Liquidation Fees and Workout Fees; (b) Advance
Interest not paid out of Penalty Charges (such amount to be determined only upon
the final resolution or liquidation of the related Mortgage Loan), (c) amounts
paid by the Trust to indemnify the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent or any other Person pursuant to the terms of this
Agreement; (d) the items described in clause (xiii) of Section 5.2(b); (e) to
the extent not covered by indemnification by one of the parties hereto or paid
by a source other than the Trust, any federal, state or local taxes imposed on
the Trust or any of its assets or transactions; and (f) to the extent not
included in the calculation of a Realized Loss and not covered by
indemnification by one of the parties hereto or otherwise, any other
unanticipated cost, liability, or expense of the Trust which the Trust has not
recovered, and in the judgment of the Master Servicer (or, in the case of a
Specially Serviced Mortgage Loan, the Special Servicer) will not recover, from
the related Mortgagor or Mortgaged Property or otherwise.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable pursuant to Section
4.5 to the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent on outstanding Advances made by any such Person out of its own funds.
"ADVANCE RATE" means a per annum rate equal to LIBOR plus
1.25%.
"ADVERSE REMIC EVENT" shall have the meaning set forth in
Section 12.1(j).
"AFFILIATE" means, 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" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANTICIPATED REPAYMENT DATE" means as to any Mortgage Loan the
date prior to the stated maturity thereof that the Mortgage Rate and the rate of
principal amortization increases.
"ANTICIPATED REPAYMENT DATE LOAN" means any Mortgage Loan that
provides for a Balloon Payment on a stated date prior to its Stated Maturity
Date, and provides for an increased
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Mortgage Rate and/or rate of principal amortization following such date if the
Mortgage Loan remains outstanding.
"APPRAISAL" means an appraisal by a Qualified Appraiser that
is prepared in accordance with 12 C.F.R. 225.64.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan
(including without limitation an REO Mortgage Loan), not later than the earliest
of (i) the date 120 days after the occurrence of any delinquency in payment with
respect to such Mortgage Loan if such delinquency remains uncured, (ii) the date
60 days after receipt of notice that a bankruptcy petition has been filed in
respect of the Mortgagor or a receiver is appointed in respect of the related
Mortgaged Property, provided such petition or appointment is still in effect,
(iii) the effective date of any modification to a Money Term of a Mortgage Loan,
other than the extension of the date that a Balloon Payment is due for a period
of less than six months from the initial maturity date, and (iv) the date 30
days following the date the related Mortgaged Property becomes an REO Property.
"APPRAISAL REDUCTION" means, with respect to any Required
Appraisal Loan with respect to which an Appraisal or internal valuation is
performed pursuant to Section 6.6, an amount, calculated as of the first
Determination Date that is at least fifteen days after the date on which the
report in respect of the most recent such Appraisal or internal valuation, as
the case may be, is completed, equal to the excess, if any, of (a) the sum of
(i) the Stated Principal Balance of such Required Appraisal Loan, (ii) to the
extent not previously advanced, all unpaid interest on such Mortgage Loan at a
per annum rate equal to the Mortgage Rate, (iii) all unreimbursed Advances and
interest on Advances at the Advance Rate with respect to such Mortgage Loan, and
(iv) to the extent not previously advanced by the Master Servicer, the Trustee
or the Fiscal Agent, all currently due and unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents in respect of
the related Mortgaged Property or REO Property, as the case may be (in each
case, net of any amounts escrowed for such items), over (b) 90% of the Appraised
Value (net of any prior mortgage liens) of the related Mortgaged Property or REO
Property as determined by such Appraisal or internal valuation, as the case may
be, plus the undrawn balance of any letter of credit held as security for such
Mortgage Loan. Notwithstanding the foregoing, if an internal valuation of the
Mortgaged Property is performed, the Appraisal Reduction will equal the greater
of (A) the amount calculated above and (B) 25% of the Stated Principal Balance
of the Mortgage Loan. Furthermore, if an appraisal is not obtained from an MAI
appraiser or an internal valuation is not performed following the earliest of
the dates described in clauses (i)-(iv) in the definition of "Appraisal Event",
then until such an appraisal is obtained the Appraisal Reduction will equal 25%
of the Stated Principal Balance of the Mortgage Loan. Each Appraisal Reduction
will be reduced to zero as of the date the related Mortgage Loan is brought
current under the then-current terms of the Mortgage Loan for at least three
consecutive months, paid in full, liquidated, repurchased or otherwise disposed
of. An appraisal or internal valuation for any Required Appraisal Loan that has
not been brought current for at least three consecutive months (or paid in full,
liquidated, repurchased or otherwise disposed of) will be updated annually, with
corresponding adjustments to the amount of the Appraisal Reduction.
"APPRAISED VALUE" means, with respect to any Mortgaged
Property or REO Property, the appraised value thereof determined by an Appraisal
of such property or, in the case of an internal valuation performed pursuant to
Section 6.6, the value of such property determined by such internal valuation.
"ASSET STATUS REPORT" has the meaning set forth in Section
8.29(c).
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"ASSIGNMENT OF LEASES" means, with respect to any Mortgage
Loan, any assignment of leases, rents and profits or equivalent instrument,
whether contained in the related Mortgage or executed separately, assigning to
the holder or holders of such Mortgage all of the related Mortgagor's interest
in the leases, rents and profits derived from the ownership, operation, leasing
or disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage,
notice of transfer or equivalent instrument, in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect the transfer of the Mortgage to the Trustee, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering the Mortgage Loans secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
"ASSUMED MONTHLY PAYMENT" means, (a) with respect to any
Balloon Mortgage Loan (other than a Balloon Mortgage Loan that has become an REO
Mortgage Loan) for its Stated Maturity Date (provided that such Mortgage Loan
has not been paid in full, and no other Liquidation Event has occurred in
respect thereof, on or before the end of the Collection Period in which such
Stated Maturity Date occurs) and for any subsequent Due Date therefor as of
which such Mortgage Loan remains outstanding and part of the Trust Fund, if no
Monthly Payment (other than the related delinquent Balloon Payment) is otherwise
due for such Due Date, the scheduled monthly payment of principal and/or
interest deemed to be due in respect thereof for such Due Date equal to the
Monthly Payment (other than any related delinquent Balloon Payment) that would
have been due in respect of such Mortgage Loan on such Due Date if it had been
required to continue to accrue interest in accordance with its terms, and to pay
principal in accordance with the amortization schedule (if any), in effect
immediately prior to, and without regard to the occurrence of, its most recent
scheduled Maturity Date; and (b) with respect to any REO Mortgage Loan, for any
Due Date therefor as of which the related REO Property remains part of the Trust
Fund, the scheduled monthly payment of principal and/or interest deemed to be
due in respect thereof on such Due Date equal to the Monthly Payment (or, in the
case of a Balloon Mortgage Loan described in clause (a) of this definition, the
Assumed Monthly Payment) that was due in respect of the subject Mortgage Loan
for the last Due Date prior to its becoming an REO Mortgage Loan.
"AUTHENTICATING AGENT" means any authenticating agent
appointed by the Trustee pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an
Officer's Certificate on behalf of the Depositor.
"AVAILABLE DISTRIBUTION AMOUNT" means (x) with respect to
REMIC I and any Distribution Date, an amount equal to the aggregate of (a) all
amounts on deposit in the Distribution Account as of the commencement of
business on such Distribution Date (including any deposits or withdrawals
pursuant to Section 5.3.2 ) that represent payments and other collections on or
in respect of the Mortgage Loans and any REO Properties that were received by
the Master Servicer or the Special Servicer through the end of the related
Collection Period (exclusive of any such amounts that were deposited in the
Distribution Account in error, that are payable to the Trustee in respect of
unpaid Trustee Fees, that are Excess Interest or that constitute Yield
Maintenance Charges or Prepayment Premiums) and (b) if and to the extent not
already among the amounts described in clause (a), (i) the aggregate amount of
any P&I Advances made by the Master Servicer, the Trustee or the Fiscal Agent
for such Distribution Date pursuant to Section 4.1 and/or Section 4.3 and (ii)
the aggregate of any Compensating Interest Payments made by the Master Servicer
for such Distribution Date pursuant to
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Section 8.21(b); (y) with respect to REMIC II and any Distribution Date, all
amounts distributed on the REMIC I Regular Interests; and (z) with respect to
REMIC III and any Distribution Date, all amounts distributed on the REMIC II
Regular Interests.
"BALLOON MORTGAGE LOAN" means any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date provides for an amortization schedule extending beyond its Maturity Date.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage
Loan as of any date of determination, the Monthly Payment payable on the
Maturity Date of such Mortgage Loan.
"BANKRUPTCY CODE" means the federal bankruptcy code, as
amended from time to time (Title II of the United States Code).
"BASE INTEREST FRACTION" means, with respect to any principal
prepayment on any Mortgage Loan and with respect to any Class of Certificates, a
fraction (a) whose numerator is the amount, if any, by which (1) the
Pass-Through Rate on such Class of Certificates exceeds (2) the Yield Rate used
in calculating the Yield Maintenance Charge with respect to such principal
prepayment and (b) whose denominator is the amount, if any, by which the (1) the
Mortgage Rate on such Mortgage Loan exceeds (2) the Yield Rate used in
calculating the Yield Maintenance Charge with respect to such principal
prepayment; provided, however, that under no circumstances shall the Base
Interest Fraction be greater than one. If such Yield Rate is greater than or
equal to the lesser of (a) the Mortgage Rate on such Mortgage Loan and (b) the
related Pass-Through Rate, then the Base Interest Fraction shall equal zero.
"BID ALLOCATION": means, with respect to the Master Servicer
and each sub-servicer and the proceeds of any bid pursuant to Section 9.5, the
amount of such proceeds (net of any expenses incurred in connection with the
termination of the servicing rights, obtaining such bid and the transfer of
servicing), multiplied by a fraction equal to (a) the Servicer Fee Amount for
such sub-servicer or the 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 Master Servicer as of such date of determination.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a
beneficial interest in a Class of Certificates, ownership and transfer of which
shall be made through book entries as described in Section 3.6; provided, that
after the occurrence of a condition whereupon book-entry registration and
transfer are no longer authorized and Definitive Certificates are to be issued
to the Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BREACH" has the meaning set forth in Section 2.3(a).
"BUSINESS DAY" means any day other than (i) a Saturday or a
Sunday, (ii) a legal holiday in New York, New York or in any of the principal
cities in which the Trustee, the Master Servicer or the Special Servicer
conducts trust or servicing operations with respect to this Agreement, or (iii)
a day on which banking institutions or savings associations in New York, New
York or in any of the principal cities in which the Trustee, the Master Servicer
or the Special Servicer conducts trust or servicing operations with respect to
this Agreement, are authorized or obligated by law or executive order to be
closed. As used in the meaning of "LIBOR," Business Day means any day on which
dealings in deposits in U.S. dollars are transacted in the London interbank
market.
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"CASH LIQUIDATION" means, as to any defaulted Mortgage Loan
other than an REO Mortgage Loan, the receipt of all related Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries in
connection with a Final Recovery Determination.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.).
"CERTIFICATES" means the Depositor's Series 1999 PH-1
Commercial Mortgage Pass-Through Certificates issued hereunder.
"CERTIFICATE FACTOR" means, with respect to any Class of REMIC
III Regular Certificates, as of any date of determination, a fraction, expressed
as a decimal carried to eight places, the numerator of which is the then-related
Class Principal Balance or Class X Notional Amount, as the case may be, and the
denominator of which is the related initial Class Principal Balance or initial
Class X Notional Amount, as the case may be, as of the Closing Date.
"CERTIFICATE NOTIONAL AMOUNT" means, with respect to any Class
X Certificate as of any date of determination, the then notional principal
amount on which such Certificate accrues interest equal to the product of (a)
the Percentage Interest evidenced by such Certificate, multiplied by (b) the
then Class X Notional Amount. For purposes of the REMIC Provisions, the Class X
Notional Amount may be described as the sum of the Component Notional Amounts of
the Component Interests at such time.
"CERTIFICATE OWNER" means, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Clearing Agency or on the books of a Person
maintaining an account with the Clearing Agency directly or as an indirect
participant, in accordance with the rules of the Clearing Agency.
"CERTIFICATE PRINCIPAL BALANCE" means, 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 Percentage Interest evidenced by such Certificate, multiplied by (b) the
then Class Principal Balance of the Class of Certificates to which such
Certificate belongs.
"CERTIFICATE REGISTER" has the meaning provided in Section
3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant
to Section 3.2.
"CERTIFICATEHOLDER" has the same meaning as "Holder."
"CLASS" means, collectively, all of the Certificates bearing
the same alphabetical or alphanumerical class designation.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS X
CERTIFICATES," "CLASS B CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D
CERTIFICATES," "CLASS E CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G
CERTIFICATES," "CLASS H CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K
CERTIFICATES," "CLASS L CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N
CERTIFICATES," "CLASS R-I CERTIFICATES," "CLASS R-II CERTIFICATES," and "CLASS
R-III CERTIFICATES" mean the Certificates designated as "Class A-1," "Class
A-2," "Class X," "Class B," "Class C," "Class D," "Class E," "Class F," "Class
G," "Class H," "Class J," "Class K," "Class L," "Class M," "Class N," "Class
R-I," "Class R-
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II," and "Class R-III," respectively, on the faces thereof, in
substantially the forms attached hereto as Exhibits A-1 through A-19 hereof.
"CLASS A CERTIFICATES" means the Class A-1 Certificates and
Class A-2 Certificates, collectively.
"CLASS B CERTIFICATE RATE" means, with respect to any
Distribution Date, one-twelfth of (x) the REMIC II Remittance Rate minus (y)
0.29%.
"CLASS C CERTIFICATE RATE" means, with respect to any
Distribution Date, one-twelfth of (x) the REMIC II Remittance Rate minus (y)
0.19%.
"CLASS D CERTIFICATE RATE" means, with respect to any
Distribution Date, one-twelfth of (x) the REMIC II Remittance Rate minus (y)
0.026%.
"CLASS INTEREST SHORTFALL" means, with respect to any Class of
Principal Balance Certificates and any Distribution Date (except the initial
Distribution Date, with respect to which the Class Interest Shortfall for each
such Class will equal zero), the sum of (a) the excess, if any, of (i) all
Distributable Certificate Interest in respect of such Class of Certificates for
the immediately preceding Distribution Date, over (ii) all distributions of
Distributable Certificate Interest made with respect to such Class of
Certificates on the immediately preceding Distribution Date pursuant to Section
6.4, and (b), to the extent permitted by applicable law, interest for the
related Interest Accrual Period accrued at the applicable Pass-Through Rate on
the amount of any such excess described in the immediately preceding clause (a).
With respect to any Class of Principal Balance Certificates, the interest
referred to in clause (b) of the preceding sentence shall accrue on the basis of
a 360-day year consisting of twelve 30-day months.
"CLASS N GRANTOR TRUST INTEREST" means that portion of the
rights represented by the Class N Certificate that evidences beneficial
ownership of the grantor trust assets, as described in Section 12.1(b) hereof.
"CLASS N REMIC INTEREST" means that portion of the rights
represented by the Class N Certificate that evidences a regular interest in
REMIC III, which rights consist of the rights to the distributions described in
Section 6.4 hereof and all other rights of the Holders of the Class N
Certificates other than those comprising the Class N Grantor Trust Interest.
"CLASS PRINCIPAL BALANCE" means the aggregate principal amount
of any Class of Principal Balance Certificates outstanding as of any date of
determination. On each Distribution Date, the Class Principal Balance of each
Class of the Principal Balance Certificates shall be reduced by the amount of
any distributions of principal made thereon on such Distribution Date pursuant
to Section 6.4 and, if and to the extent appropriate, shall be further reduced
on such Distribution Date as provided in Section 6.5.
"CLASS X ACCRUED CERTIFICATE INTEREST" means, with respect to
any Distribution Date, the product of the Class X Notional Amount as of the
close of business on the preceding Distribution Date and one-twelfth of the
Class X Certificate Rate. For purposes of the REMIC Provisions, Class X Accrued
Certificate Interest, with respect to such Class and any Distribution Date, may
be expressed as the sum of the products of the Component Notional Amount of each
Component Interest on such Distribution Date and one-twelfth of the Component
Interest Rate for such Component Interest. Class X
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Accrued Certificate Interest shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
"CLASS X CERTIFICATE RATE" means, with respect to any
Distribution Date, the excess of (x) REMIC II Remittance Rate over (y) the
weighted average of the Pass-Through Rates of the Principal Balance Certificates
(weighted on the basis of their respective Certificate Balances on such
Distribution Date).
"CLASS X CERTIFICATES" means the Class of Certificates,
representing fourteen Classes of "regular interests" in REMIC III within the
meaning of the REMIC Provisions, that is entitled on each Distribution Date to
receive Accrued Certificate Interest for such Class, and Yield Maintenance
Charges and Prepayment Premiums collected during the related period to the
extent set forth in Section 6.4(c), and is designated as Class X on the face
thereof.
"CLASS X NOTIONAL AMOUNT" means the notional principal amount
by reference to which the amount of interest payable to the Holders of the Class
X Certificates is computed and described, which, as of any date of
determination, is equal to the aggregate Class Principal Balances of the
Principal Balance Certificates on such date. For purposes of the REMIC
Provisions, the Class X Notional Amount may be expressed as the sum of the
Component Notional Amounts of all Component Interests of the Class X
Certificates as of the date of determination. The Class X Notional Amount does
not represent a right to receive distributions in respect of amount of principal
from the Trust.
"CLEARING AGENCY" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the 1934 Act, which initially shall
be the Depository.
"CLOSING DATE" means May 27, 1999.
"CODE" means the Internal Revenue Code of 1986, as amended,
any successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent applicable to the Trust or any REMIC Pool
by reason of their proposed effective dates.
"COLLECTION ACCOUNT" has the meaning set forth in Section
5.1(a).
"COLLECTION PERIOD" means, with respect to any Distribution
Date, the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or, in the case of the first
Distribution Date, on the day after the Cut-off Date) and ending on the
Determination Date in the month in which the Distribution Date occurs.
"COMPARATIVE FINANCIAL STATUS REPORT": A report substantially
containing the content described in Exhibit H-1 attached hereto, setting forth,
among other things, the occupancy, revenue, net operating income or net cash
flow, as applicable, and Debt Service Coverage Ratio for each Mortgage Loan on
the related Mortgaged Property as of the last day of the calendar month
immediately preceding the preparation of such report for each of the following
four periods (to the extent such information is available): (i) the most current
available year-to-date, (ii) the most recent twelve months, (iii) the previous
two full fiscal years, and (iv) the "base year" (representing the original
analysis of information used as of the Cut-off Date); provided, however, that
Debt Service Coverage Ratio shall not be calculated for any Mortgaged Property
for which twelve months of operating information is not available (including for
purposes of clause (i)) prepared in accordance with Section 8.14(j). For the
purposes of the Master Servicer's production of any such report that is required
to state information for any period prior to the
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Cut-off Date, the Master Servicer may conclusively rely (without independent
verification), absent manifest error, on information provided to it by the
related Seller, the related Mortgagor or the Special Servicer.
"COMPENSATING INTEREST PAYMENTS" means, with respect to any
Distribution Date, any payments required to be made by the Master Servicer
pursuant to Section 8.21(b) to cover Prepayment Interest Shortfalls.
"COMPONENT INTEREST" means any of the fourteen component
"regular interests" (within the meaning of the REMIC Provisions) comprising the
Class X Certificates, each of which relates to a separate Class of REMIC II
Regular Interests and bears interest at the Component Interest Rate for such
Class on a notional amount equal to the Uncertificated Principal Balance of the
Class of REMIC II Regular Interests related to such Class (its "COMPONENT
NOTIONAL AMOUNT"). The Component Interests are designated as Class A-1X, Class
A-2X, Class BX, Class CX, Class DX, Class EX, Class FX, Class GX, Class HX,
Class JX, Class KX, Class LX , Class MX and Class NX, which interests relate to
REMIC II Regular Interests A-1, A-2, B, C, D, E, F, G, H, J, K, L, M and N
respectively.
"COMPONENT INTEREST RATE" means, with respect to any Component
Interest, the per annum rate equal to the excess of the REMIC II Remittance Rate
for its related Class of REMIC II Regular Interests over the Pass-Through Rate
for the Class of Certificates bearing the same alphabetical designation as such
Component Interest's related Class of REMIC II Regular Interests.
"COMPONENT NOTIONAL AMOUNT" shall have the meaning set forth
in the definition of "Component Interest".
"CONDEMNATION PROCEEDS" means any awards resulting from the
full or partial condemnation or any eminent domain proceeding or any conveyance
in lieu or in anticipation thereof with respect to a Mortgaged Property or REO
Property by or to any governmental or quasi-governmental authority.
"CONTROLLING CLASS" means the most subordinate Class of
Principal Balance Certificates outstanding at any time of determination (or, if
the then Class Principal Balance of such Class of Certificates is less than 25%
of the initial Class Principal Balance thereof and there is a more senior Class
of Principal Balance Certificates then outstanding, the next most subordinate
Class of Principal Balance Certificates). For purposes of determining the
Controlling Class, the Class A Certificates will be treated as a single Class of
Certificates, the Subordinate Certificates will be subordinate to the Class A
Certificates, and each Class of Subordinate Certificates will be subordinate to
each other Class of Subordinate Certificates, if any, with an earlier
alphabetical Class designation. As of the Closing Date, the Controlling Class
will be the Class N Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any
other Person that constitutes a "controlling person" within the meaning of
Section 15 of the Securities Act.
"CORPORATE TRUST OFFICE" means, with respect to the
presentment and surrender of Certificates for the final distribution thereon or
the presentment and surrender of Certificates for any other purpose, the
principal corporate trust office of the Trustee or the New York Presenting
Office (if any). The principal corporate trust office of the Trustee is
presently located at 135 South LaSalle Street, Suite 1625, Chicago, IL 60674,
Attention: Asset-Backed Securities Trust Services Group--Heller Financial
Commercial Mortgage Asset Corp. Series 1999 PH-1, or at such other address as
the Trustee
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may designate from time to time by notice to the Certificateholders, the
Depositor, the Master Servicer and the Special Servicer.
"CORRECTED MORTGAGE LOAN" means any Mortgage Loan that had
been a Specially Serviced Mortgage Loan, has ceased to be such in accordance
with the definition of "Specially Serviced Mortgage Loan" (other than by reason
of a Liquidation Event occurring in respect of such Mortgage Loan or a related
Mortgaged Property becoming an REO Property) and is not the subject of an
existing Servicing Transfer Event.
"CPR" means an assumed constant rate of prepayment each month
(which is quoted on a per annum basis) relative to the then-outstanding
principal balance of a pool of mortgage loans for the life of such mortgage
loans.
"CROSS-COLLATERALIZED MORTGAGE LOANS" means any two or more
Mortgage Loans listed on the Mortgage Loan Schedule that are
cross-collateralized with each other.
"CSSA" means the Commercial Real Estate Secondary Market and
Securitization Association.
"CSSA REPORTS": With respect to the Mortgage Loans, data files
which contain the information substantially in the forms of the CSSA standard
reporting package attached as Exhibits H-9, H-10 and H-11, as the same may be
modified by the CSSA from time to time.
"CURRENT PRINCIPAL DISTRIBUTION AMOUNT" means with respect to
the Mortgage Loans for any Distribution Date, an amount equal to the aggregate
of:
(a) the principal portions of all Monthly Payments (other
than Balloon Payments) and any Assumed Monthly Payments due or deemed due, as
the case may be, in respect of the Mortgage Loans, including without limitation
any REO Mortgage Loans, for their respective Due Dates occurring during the
related Collection Period; and
(b) that portion of all payments (including without
limitation Principal Prepayments and Balloon Payments), Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Repurchase Proceeds, payments of
Substitution Shortfall Amounts, REO Income and other collections that were
received on or in respect of the Mortgage Loans (including without limitation
any REO Mortgage Loans) or received on or in respect of any related REO
Properties, during the related Collection Period and were identified and applied
by the Master Servicer in accordance with Section 1.2 as payments or other
recoveries of principal of such Mortgage Loans, in each case net of any portion
of such amounts that represents (i) a payment or other recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of the
principal portion of any Assumed Monthly Payment deemed due, in respect of any
such Mortgage Loan on a Due Date during or prior to the related Collection
Period or (ii) an early payment (other than in the form of a Principal
Prepayment) of the principal portion of any Monthly Payment due in respect of
any such Mortgage Loan on a Due Date subsequent to the end of the related
Collection Period.
"CUSTODIAN" means the Trustee or any Person who is appointed
by the Trustee at any time as custodian pursuant to Section 7.9(h) and who is
unaffiliated with the Depositor and each Seller.
"CUT-OFF DATE" means May 1, 1999.
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"CUT-OFF DATE PRINCIPAL BALANCE" means, with respect to any
Mortgage Loan included in the Trust Fund as of the Closing Date, the unpaid
principal balance of such Mortgage Loan as of the Cut-off Date, reduced by all
payments of principal due on or before the Cut-off Date, whether or not paid.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any
Mortgage Loan (or group of Cross-Collateralized Mortgage Loans) for any
specified period, the debt service coverage ratio calculated in accordance with
Exhibit H-1.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan that is at
least 60 days delinquent in respect of any Monthly Payment (such delinquency to
be determined without giving effect to any grace period permitted by the related
Mortgage or Mortgage Note) or as to which the Master Servicer has made a
determination that such Mortgage Loan's becoming so delinquent is imminent.
"DEFAULT INTEREST" means, with respect to any Mortgage Loan
(including without limitation an REO Mortgage Loan), any amounts collected
thereon, other than Late Fees, Yield Maintenance Charges and Prepayment
Premiums, that represent additional interest in excess of interest on the
principal balance of such Mortgage Loan accrued at the related Mortgage Rate.
"DEFAULTING PARTY" has the meaning set forth in Section
9.1(b).
"DEFINITIVE CERTIFICATES" means Certificates of any Class
issued in definitive, fully registered, certificated form without interest
coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is
repurchased from the Trust pursuant to the terms hereof or as to which one or
more Qualifying Substitute Mortgage Loans is or are substituted.
"DELINQUENT LOAN STATUS REPORT" means a report substantially
containing the content described in Exhibit H-2 attached hereto, setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the Determination Date immediately preceding the preparation of such report,
were delinquent 30-59 days, delinquent 60-89 days, delinquent 90 days or more,
current but Specially Serviced Mortgage Loans, or were in foreclosure but were
not REO Property prepared in accordance with Section 8.14(j).
"DEPOSITOR" means Heller Financial Commercial Mortgage Asset
Corp., a Delaware corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.6(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations
dated May 27, 1999, by and between the Depositor, the Trustee and the
Depository.
"DETERMINATION DATE" means, with respect to any Distribution
Date, the eighth day of the month in which such Distribution Date occurs (or, if
such eighth day is not a Business Day, the Business Day immediately preceding
such eighth day).
"DIRECTLY OPERATE" means, 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
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thereon or any use of such REO Property in a trade or business conducted by the
Trust, in each case other than through an Independent Contractor; provided,
however, that the Trustee (or the Special Servicer on behalf of the Trustee)
shall not be considered to Directly Operate an REO Property solely because the
Trustee (or the Special Servicer on behalf of the Trustee) establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes and
insurance, or makes decisions as to repairs, tenant improvements or capital
expenditures with respect to such REO Property or undertakes any ministerial
action incidental thereto.
"DISQUALIFIED ORGANIZATION" means any of (i) the United
States, 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) an organization (except
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from 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 Trustee
based upon an Opinion of Counsel that the holding of an ownership interest in a
Residual Certificate by such Person may cause any of the REMIC Pools, or any
Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to
any Class of REMIC III Regular Certificates for any Distribution Date, the
Accrued Certificate Interest in respect of such Class of Certificates for such
Distribution Date, reduced (to not less than zero) by that portion, if any, of
the Net Aggregate Prepayment Interest Shortfall, if any, for such Distribution
Date allocated to such Class of Certificates as set forth below, and increased
by any Class Interest Shortfall in respect of such Class of Certificates for
such Distribution Date. The Net Aggregate Prepayment Interest Shortfall, if any,
for each Distribution Date shall be allocated on such Distribution Date among
the respective Classes of REMIC III Regular Certificates, pro rata, in
accordance with the respective amounts of Accrued Certificate Interest for such
Classes of Certificates for such Distribution Date.
"DISTRIBUTION ACCOUNT" has the meaning set forth in Section
5.3.
"DISTRIBUTION DATE" means the 15th day of each month or, if
any such 15th day is not a Business Day, the next succeeding Business Day,
commencing in June, 1999.
"DUE DATE" means: (i) with respect to any Mortgage Loan (other
than an REO Mortgage Loan) on or prior to its Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment
thereon is scheduled to be first due; (ii) with respect to any Balloon Mortgage
Loan (other than an REO Mortgage Loan) after the Maturity Date therefor, the day
of the month set forth in the related Mortgage Note on which each Monthly
Payment (other than, to the extent different, the Balloon Payment) on such
Mortgage Loan had been scheduled to be first due; and (iii) with respect to any
REO Mortgage Loan, the day of the month set forth in the related Mortgage Note
on which each Monthly Payment on such Mortgage Loan prior to its becoming an REO
Mortgage Loan had been scheduled to be first due.
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"ELIGIBLE ACCOUNT" means an account (or accounts) that is any
of the following: (i) maintained with a depository institution or trust company
whose (A) commercial paper, short-term unsecured debt obligations or other
short-term deposits are rated by the Rating Agencies at least "Prime-1" in the
case of Moody's and "F-1+" in the case of Fitch (if rated by Fitch, and if not
rated by Fitch, then having the indicated rating from Moody's and, in the case
of First Union National Bank, at least A-1, and in the case of any other
financial institution, at least "A-1+," from Standard & Poor's Ratings
Services), if the deposits are to be held in the account for 30 days or less, or
(B) long-term unsecured debt obligations are rated by the Rating Agencies at
least Aa2 in the case of Moody's and AA- in the case of Fitch (if rated by
Fitch, and if not rated by Fitch, then having the indicated rating from Moody's
and, in the case of First Union National Bank, at least "A+," and in the case of
any other financial institution, at least "AA+" from Standard & Poor's Ratings
Services), if the deposits are to be held in the account more than 30 days or
(ii) a segregated trust account or accounts maintained in the trust department
of the Trustee or other financial institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), or (iii) an account or accounts of a depository
institution acceptable to each Rating Agency, as evidenced by Rating Agency
Confirmation with respect to the use of any such account as the Collection
Account or the Distribution Account.
"ELIGIBLE INVESTMENTS" means any one or more of the following
obligations or securities:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the
United States of America, FNMA, FHLMC or any agency or instrumentality
of the United States of America the obligations of which are backed by
the full faith and credit of the United States of America; provided
that any obligation of, or guarantee by, FNMA or FHLMC, other than an
unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible
Investment only if Rating Agency Confirmation is obtained with respect
to such investment;
(ii) demand, time or similar deposits in,
certificates of deposit of, money market deposit accounts of, or
bankers' acceptances issued by, any depository institution or trust
company (including the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer or any Affiliate of the Master Servicer, the
Special Servicer, the Fiscal Agent or the Trustee, acting in its
commercial capacity) incorporated or organized under the laws of the
United States of America or any State thereof and subject to
supervision and examination by federal or state banking authorities, so
long as the commercial paper or other short-term debt obligations of
such depository institution or trust company are rated "F-1+" by Fitch
and "Prime-1" by Moody's or the long-term unsecured debt obligations of
such depository institution or trust company have been assigned a
rating by each Rating Agency at least equal "AAA" or its equivalent or,
alternatively, so long as the ratings on such obligations are otherwise
acceptable to the Rating Agencies;
(iii) repurchase agreements or obligations with
respect to any security described in clause (i) above where such
security has a remaining maturity of one year or less and where such
repurchase obligation has been entered into with a depository
institution or trust company (acting as principal) described in clause
(ii) above and where such repurchase obligation will mature prior to
the Business Day preceding the next date upon which, as described in
this Agreement, such amounts are required to be withdrawn from the
Collection Account and which meets the minimum rating requirement for
such entity described above;
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(iv) securities (other than stripped bonds or
stripped coupons) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America
or any state thereof, which securities are rated "AAA" or its
equivalent by each Rating Agency, unless otherwise specified in writing
by the Rating Agency; provided that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then-outstanding principal amount of
securities issued by such corporation and held in the Collection
Account to exceed 5% of the sum of the aggregate Certificate Principal
Balance of the Principal Balance Certificates and the aggregate
principal amount of all Eligible Investments in the Collection Account;
(v) commercial paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more than one
year after the date of issuance thereof) rated "F-1+" by Fitch and
"Prime-1" by Moody's;
(vi) Reserved;
(vii) guaranteed reinvestment agreements maturing
within 365 days or less issued by any bank, insurance company or other
corporation whose long-term unsecured debt rating is not less than
"AAA" (or its equivalent rating) by Fitch and "Aaa" by Moody's (if
rated by Fitch or, if not rated by Fitch, by Moody's and another
nationally recognized statistical rating organization);
(viii) any money market funds that maintain a
constant asset value and that are rated "Aaa" (or its equivalent
rating) by Moody's and "AAAm" or "AAAm-G" by Fitch, and any other
demand, money-market or time deposit, or any other obligation, security
or investment, with respect to which Rating Agency Confirmation has
been obtained; and
(ix) such other investments bearing interest or sold
at a discount, earning a return "in the nature of interest" within the
meaning of Treasury Regulation Section 1.860G-2(g)(i) (as evidenced by
an Opinion of Counsel delivered to the Trustee by the Master Servicer
at the Master Servicer's expense), as are acceptable to the Rating
Agencies (as evidenced by Rating Agency Confirmation) and treated as
"permitted investments" that are "cash flow investments" under Code
Section 860G(a)(5);
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Code Section 860G(a)(5); and provided, further,
that any such instrument shall have a maturity date no later than the date such
instrument is required to be used to satisfy the obligations under this
Agreement, and, in any event, shall not have a maturity in excess of one year;
any such instrument must have a predetermined fixed dollar of principal due at
maturity that cannot vary or change; if rated, the obligation must not have an
"r" highlighter affixed to its rating; interest on any variable rate instrument
shall be tied to a single interest rate index plus a single fixed spread (if
any) and move proportionally with that index; and provided, further, that no
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amount beneficially owned by any REMIC Pool (including any amounts collected by
the Master Servicer but not yet deposited in the Collection Account) may be
invested in investments treated as equity interests for Federal income tax
purposes. No Eligible Investments shall be purchased at a price in excess of
par. For the purpose of this definition, (x) units of investment funds
(including money market funds) shall be deemed to mature daily, and (y) the
"Minimum Maturity-Based Rating" means, in all cases, "AAA" or "Aaa", as
applicable.
"EMERGENCY ADVANCE" means any Servicing Advance that must be
made within five Business Days (or such lesser period as shall be reasonably
requested by the Special Servicer) by the Special Servicer or by the Master
Servicer on behalf of the Special Servicer in order to avoid any material
penalty, any material harm to a Mortgaged Property or any other material adverse
consequence to the Trust.
"ENVIRONMENTAL ASSESSMENT" means a "Phase I Assessment"
conducted in accordance with ASTM Standard E 1527-93 or any successor thereto
published by ASTM.
"ENVIRONMENTAL LAWS" means any and all federal, state and
local statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"EQUIVALENT 30/360 RATE" means with respect to a Mortgage Loan
on which interest is computed on a basis other than a 360-day year consisting of
twelve 30-day months, the per annum rate at which interest would have to accrue
on the Stated Principal Balance of such Mortgage Loan outstanding immediately
prior to such Distribution Date, assuming such accrual of interest were to occur
on the basis of a 360-day year consisting of twelve 30-day months, in order to
produce the actual Uncertificated Accrued Interest in respect of the REMIC I
Regular Interest corresponding to such Mortgage Loan in respect of such
Distribution Date.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ESCROW PAYMENT" means any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor for
application toward the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items in respect of the
related Mortgaged Property.
"EVENT OF DEFAULT" means one or more of the events described
in Section 9.1(a).
"EXCESS INTEREST" means, with respect to any Anticipated
Repayment Date Loan and any Distribution Date following its Anticipated
Repayment Date, the excess of the amount of interest accrued on the outstanding
principal balance of such Mortgage Loan during the related Collection Period at
the Mortgage Rate in effect for such Mortgage Loan after the Anticipated
Repayment Date (the "REVISED INTEREST RATE") over the amount of interest that
would have accrued on the outstanding principal balance of such Mortgage Loan
during such Collection Period at the Mortgage Rate in effect for such Mortgage
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Loan immediately prior to its Anticipated Repayment Date, and interest on such
excess amount at the Revised Interest Rate from the date accrued to the date
such amount is paid by the related Mortgagor.
"EXCESS INTEREST DISTRIBUTION ACCOUNT" has the meaning set
forth in Section 5.3.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXPENSE LOSS" means a loss realized upon payment by the Trust
of an Additional Trust Expense that was not otherwise subject to a Servicing
Advance or was the subject of a determination that such Servicing Advance, if
made, would be nonrecoverable.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or
any successor thereto.
"FINAL CERTIFICATION" has the meaning set forth in Section
2.2.
"FINAL PURCHASER" has the meaning set forth in Section 10.1.
"FINAL RECOVERY DETERMINATION" means a determination by the
Special Servicer with respect to any defaulted Mortgage Loan or REO Property
that, in the reasonable and good faith judgment of the Special Servicer, there
has been a recovery of all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, and other payments or recoveries that, in the Special
Servicer's reasonable and good faith judgment, exercised without regard to any
obligation of the Master Servicer or the Special Servicer to make payments from
its own funds pursuant to Section 8.5, will ultimately be recoverable.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking
organization organized under the laws of The Netherlands, its successor in
interest, or any successor fiscal agent appointed as herein provided.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in
Section 7.16.
"FITCH" means Fitch IBCA, Inc., or its successors or assigns.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"GLOBAL CERTIFICATE" has the meaning set forth in Section 3.6.
"HAZARDOUS MATERIALS" means any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBS"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification that would, if classified as unusable, be included in the
foregoing definition.
"HISTORICAL LOAN MODIFICATION REPORT" means a report
substantially containing the content described in Exhibit H-3 attached hereto,
setting forth, among other things, those Mortgage Loans which, as of the close
of business on the Determination Date immediately preceding the
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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 prepared in accordance with Section
8.14(j).
"HISTORICAL LOSS ESTIMATE REPORT" means a report substantially
containing the content described in Exhibit H-4 attached hereto, setting forth,
among other things, as of the close of business on the Determination Date
immediately preceding the preparation of such report, (i) the aggregate amount
of Liquidation Proceeds and Liquidation Expenses relating to each Final Recovery
Determination, both for the current 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 prepared in
accordance with Section 8.14(j).
"HFCF" means Heller Financial Capital Funding, Inc., or any
successor in interest.
"HFCF LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"HOLDER" means the Person in whose name a Certificate is
registered on the Certificate Register except that, solely for the purposes of
giving any consent, approval or waiver pursuant to this Agreement, any
Certificate registered in the name of the Master Servicer, the Depositor or any
Affiliate of any of them 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 has been obtained, except as otherwise provided in
Sections 8.32, 9.4 and 13.3. The Trustee shall be entitled to request and rely
upon a certificate of the Master Servicer or the Depositor in determining
whether a Certificate is registered in the name of an Affiliate of such Person.
All references herein to "Holders" or "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Clearing Agency and its Participants, except as otherwise specified herein;
provided, however, that the parties hereto shall be required to recognize as a
"Holder" or "Certificateholder" only the Person in whose name a Certificate is
registered in the Certificate Register.
"INDEPENDENT" means, when used with respect to any
Accountants, a Person who is "independent" within the meaning of Rule 2-01(b) of
the Securities and Exchange Commission's Regulation S-X. Independent means, when
used with respect to any other Person, a Person who (a) is in fact independent
of another specified Person and any Affiliate of such other Person, (b) does not
have any material direct financial interest in such other Person or any
Affiliate of such other Person and (c) is not connected with such other Person
or any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
"INDEPENDENT CONTRACTOR" means any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by any Person that owns, directly or indirectly, 35 percent or more of any Class
of Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust, delivered to the Trustee), so long as REMIC I does not receive or
derive any income from such Person and provided that the relationship between
such Person and REMIC I is at arm's length, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5), or any other Person upon receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust, to the effect that the taking of any action in respect of any REO
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Property by such Person, subject to any conditions therein specified, that is
herein contemplated to be taken by an Independent Contractor will neither cause
such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for Section 860D(a) of the Code) nor cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
"INITIAL CERTIFICATION" has the meaning set forth in Section
2.2.
"INDIRECT PARTICIPANTS" means entities, such as banks,
brokers, dealers and trust companies, that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly.
"INITIAL POOL BALANCE" means the aggregate Cut-off Date
Principal Balance of the Mortgage Pool.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the Securities Act.
"INSURANCE POLICY" means any hazard insurance policy, flood
insurance policy or title insurance policy relating to any Mortgage Loan or
Mortgaged Property or REO Property in effect as of the Closing Date or
thereafter during the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under
any Insurance Policy.
"INTEREST ACCRUAL PERIOD" means with respect to any REMIC I
Regular Interest, any REMIC II Regular Interest or any Class of REMIC III
Regular Certificates for any Distribution Date, the calendar month immediately
preceding the month in which such Distribution Date occurs.
"INTEREST RESERVE ACCOUNT" has the meaning set forth in
Section 5.3.2. "Interest Reserve Loans" means the Mortgage Loans set forth on
Schedule III attached hereto.
"INTEREST ONLY CERTIFICATES" means the Class X Certificates.
"INTERESTED PERSON" means, as of any date of determination,
the Master Servicer, the Special Servicer, the Depositor, the Operating Adviser,
any Certificateholder, any Certificate Owner or any Person known to a
Responsible Officer of the Trustee to be an Affiliate of any of them.
"ISSUE PRICE" means, with respect to each Class of Regular
Certificates, REMIC I Regular Interests and REMIC II Regular Interests, the
"issue price" as defined in the REMIC Provisions.
"LATE COLLECTIONS" means with respect to any Mortgage Loan
(including without limitation any REO Mortgage Loan), all amounts received
thereon during any Collection Period, whether as payments, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, Repurchase Proceeds, payments of
Substitution Shortfall Amounts, or otherwise, which represent late payments or
collections of the principal and/or interest due or deemed due in respect of
such Mortgage Loan (without regard to any acceleration of amounts due thereunder
by reason of default) on a Due Date in a previous Collection Period and not
previously recovered; provided that "Late Collections" shall in no event include
Penalty Charges.
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"LATE FEE" shall mean a fee paid or payable, as the context
may require, by a Mortgagor as provided in the related Mortgage Note or Mortgage
in connection with a late payment made on the related Mortgage Loan by such
Mortgagor.
"LEGENDED DEFINITIVE CERTIFICATE" means a Definitive
Certificate bearing the Securities Legend.
"LIBOR" means, for any month, the rate of interest for
deposits in U.S. dollars for a period equal to the number of days in such month
which appears on the Telerate Page 3750 as of 11:00 a.m., London time, on the
day that is two Business Days prior to the first day of the month, or if
Telerate Page 3750 is not available, then LIBOR shall be determined by such
other method to which the parties hereto agree.
"LIQUIDATION EVENT" means with respect to any Mortgage Loan
(other than an REO 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 a Seller pursuant to Section 7 of the related Mortgage Loan Purchase
Agreement; (iv) such Mortgage Loan is purchased by the Majority
Certificateholder of the Controlling Class, the Master Servicer or the Special
Servicer, or is otherwise sold, pursuant to Section 8.31 or otherwise liquidated
by judicial action; or (v) such Mortgage Loan is purchased by any Person
entitled to effect an optional termination of the Trust pursuant to Section
10.1. 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; (ii) such REO Property is sold pursuant to Section 8.31;
or (iii) such REO Property is purchased by any Person entitled to effect an
optional termination of the Trust pursuant to Section 10.1.
"LIQUIDATION EXPENSES" means all customary, reasonable and
necessary "out of pocket" costs and expenses incurred on behalf of the Trust by
the Special Servicer in connection with the liquidation of any Specially
Serviced Mortgage Loan or REO Property pursuant to Section 8.7 or 8.31
(including, without limitation, legal fees and expenses, title and escrow
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes) that were not covered by a Servicing Advance.
"LIQUIDATION FEE" means, with respect to each Specially
Serviced Mortgage Loan or REO Property as to which Liquidation Proceeds have
been received (other than any Specially Serviced Mortgage Loan or REO Property
purchased by any Person entitled to effect an optional termination of the Trust
pursuant to Section 10.1), a fee in an amount equal to the product of (x) 1.0%,
and (y) the related Liquidation Proceeds.
"LIQUIDATION PROCEEDS" means proceeds (other than payments by
a Mortgagor, Insurance Proceeds, Condemnation Proceeds, Repurchase Proceeds,
payments of Substitution Shortfall Amounts and REO Income) from the sale or
liquidation of a Mortgage Loan or related REO Property, net of related
Liquidation Expenses.
"LOAN-TO-VALUE RATIO" means, with respect to any Mortgage
Loan, as of any date of determination, the fraction, expressed as a percentage,
the numerator of which is the then-unpaid principal balance of such Mortgage
Loan (or, if part of a group of Cross-Collateralized Mortgage Loans, of such
group), and the denominator of which is the appraised value of the related
Mortgaged Property
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(or, in the case of a group of Cross-Collateralized Mortgage Loans, of all the
Mortgaged Properties securing such group) as determined by an Appraisal thereof.
"LOCK-BOX ACCOUNT" means with respect to any Mortgage Loan,
any lock-box, cash management or similar account required under the terms of the
related Mortgage or Mortgage Note.
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan,
any lock-box agreement relating to such Mortgage Loan executed and delivered by
the related Mortgagor pursuant to which a Lock-Box Account is created.
"LOSSES" has the meaning set forth in Section 12.3.
"LOSS REIMBURSEMENT AMOUNT" means, with respect to any REMIC I
Regular Interest, REMIC II Regular Interest or Class of Principal Balance
Certificates for any Distribution Date (except the initial Distribution Date,
with respect to which the Loss Reimbursement Amount for such REMIC I Regular
Interest, REMIC II Regular Interest or Class of Certificates, as the case may
be, will be zero), an amount equal to (a)(i) the Loss Reimbursement Amount with
respect to such REMIC I Regular Interest, REMIC II Regular Interest or Class of
Certificates, as the case may be, for the immediately preceding Distribution
Date, minus (ii) the aggregate of all reimbursements of previously allocated and
unreimbursed Realized Losses and Expense Losses (with interest) made on the
immediately preceding Distribution Date pursuant to Section 6.2, 6.3 or 6.4, as
applicable, with respect to such REMIC I Regular Interest, REMIC II Regular
Interest or Class of Certificates, as the case may be, plus (iii) the aggregate
of all Realized Losses and Expense Losses allocated to such REMIC I Regular
Interest, REMIC II Regular Interest or Class of Certificates, as the case may
be, on the immediately preceding Distribution Date pursuant to Section 6.5, plus
(b) one month's interest (calculated on the basis of a 360-day year consisting
of twelve 30-day months) on the amount described in clause (a) at the REMIC I
Remittance Rate, REMIC II Remittance Rate or Pass-Through Rate, as applicable,
in respect of such REMIC I Regular Interest, REMIC II Regular Interest or Class
of Certificates, as the case may be, for the current Distribution Date.
"MAI" means member of the appraisal institute.
"MAJORITY CERTIFICATEHOLDER" means, with respect to any
particular Class or Classes of Certificates, any Certificateholder entitled to a
majority of the Voting Rights allocated to such Class or Classes, as the case
may be.
"MASTER SERVICER" means First Union National Bank or any
successor master servicer appointed as provided herein.
"MASTER SERVICING FEE" means, with respect to each Mortgage
Loan (including without limitation each REO Mortgage Loan), the fee designated
as such and payable to the Master Servicer pursuant to Section 8.10(a).
"MASTER SERVICING FEE RATE" means, with respect to each
Mortgage Loan (including without limitation each REO Mortgage Loan), the amount
per annum set forth on Schedule I and Schedule II.
"MASTER SERVICER REMITTANCE DATE" means, with respect to each
Distribution Date, the Business Day immediately preceding such Distribution
Date.
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"MASTER SERVICER REMITTANCE REPORT" means a report prepared by
the Master Servicer in accordance with Section 8.14.
"MATERIAL DEFECT" has the meaning set forth in Section 2.3(a).
"MATURITY DATE" means, with respect to any Mortgage Loan as of
any date of determination, the date on which the last payment of principal is
due and payable under the related Mortgage Note, after taking into account all
Principal Prepayments received and any modification of the Mortgage Loan
occurring prior to such date of determination, but without giving effect to (i)
any acceleration of the principal of such Mortgage Loan by reason of a default
or (ii) any grace period permitted by the related Mortgage Note.
"MEMORANDUM" means the private placement memorandum dated May
21, 1999, relating to the Privately Offered Certificates.
"MINIMUM MATURITY-BASED RATING" has the meaning provided under
the definition of "Eligible Investments" herein.
"MONEY TERM" means with respect to any Mortgage Loan, the
Maturity Date, Mortgage Rate, principal balance, amortization term or payment
frequency thereof (and shall not include Late Fees or Default Interest
provisions).
"MONTHLY CERTIFICATEHOLDER REPORT" means a report prepared
pursuant to Section 5.4 by the Trustee as to each Distribution Date generally in
the form and substance of Exhibit G, which sets forth, to the extent applicable:
(i) the amount, if any, of the distributions on such Distribution Date to the
Holders of each Class of Principal Balance Certificates applied to (A) reduce
the respective Class Principal Balance thereof and (B) reimburse previously
allocated Realized Losses and/or Expense Losses (with interest); (ii) the
amount, if any, of the distributions to Holders of each Class of REMIC III
Regular Certificates allocable to (A) Distributable Certificate Interest and (B)
Yield Maintenance Charges and Prepayment Premiums; (iii) the number and
aggregate Stated Principal Balance of Mortgage Loans in the Mortgage Pool at the
close of business on the related Determination Date; (iv) the number and
aggregate Stated Principal Balance of Mortgage Loans in the Mortgage Pool that
are at the close of business on the related Determination Date (A) delinquent 30
to 59 days, (B) delinquent 60 to 89 days, (C) delinquent 90 or more days, (D) as
to which foreclosure proceedings have been commenced or (E) are subject to a
bankruptcy proceeding; (v) with respect to any REO Property acquired during the
related Collection Period, the Stated Principal Balance of the related Mortgage
Loan as of the date of acquisition of the REO Property; (vi)(A) the latest
appraised value of any REO Property included in the Trust Fund as of the related
Determination Date, (B) as to any REO Property sold during the related
Collection Period, the date of the related Final Recovery Determination and the
amount of the proceeds of such sale deposited into the Collection Account, and
(C) the aggregate amount of other revenues collected by the Special Servicer
with respect to each REO Property during the related Collection Period and
credited to the Collection Account, in each case identifying such REO Property
by the loan number of the related Mortgage Loan; (vii) the Class Principal
Balance or Class X Notional Amount, as the case may be, and Certificate Factor
of each Class of REMIC III Regular Certificates before and after giving effect
to the distributions made on such Distribution Date; (viii) the aggregate amount
of Principal Prepayments made during the related Collection Period; (ix) the
Pass-Through Rate applicable to each Class of REMIC III Regular Certificates for
such Distribution Date; (x) the aggregate amount of servicing fees retained by
or paid to the Master Servicer and the Special Servicer; (xi) the Net Aggregate
Prepayment Interest Shortfall, if any, for such Distribution Date and the amount
of Realized Losses or Expense Losses, if any,
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incurred with respect to the Mortgage Loans during the related Collection
Period; (xii) the aggregate outstanding amount of Servicing Advances and P&I
Advances (stated separately) as of the end of the prior calendar month that have
been made by the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent; and (xiii) the amount of any Appraisal Reductions effected during
the related Collection Period on a loan-by-loan basis and the total Appraisal
Reductions as of such Distribution Date. In the case of information furnished
pursuant to subclauses (i) and (ii) above, the amounts shall be expressed as a
dollar amount per $1,000 of original actual or notional principal amount of the
Certificates for all Certificates of each applicable Class.
"MONTHLY PAYMENT" means, with respect to any Mortgage Loan,
the scheduled monthly payment of principal and/or interest on such Mortgage
Loan, including any Balloon Payment, which is payable by a Mortgagor from time
to time under the terms of the related Mortgage Note (as such may be modified at
any time following the Closing Date) and applicable law.
"MOODY'S" means Moody's Investors Service, Inc.
"MORTGAGE" means, with respect to any Mortgage Loan,
separately and collectively, as the context may require, each mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
related Mortgaged Property.
"MORTGAGE FILE" means, collectively with respect to any
Mortgage Loan, the mortgage documents listed below:
(i) the original Mortgage Note, endorsed by the most
recent endorsee prior to the Trustee or, if none, by
the originator, without recourse, either in blank or
to the order of the Trustee in the following form:
"Pay to the order of LaSalle Bank National
Association, as Trustee for the registered holders of
Heller Financial Commercial Mortgage Asset Corp.,
Commercial Mortgage Pass-Through Certificates, Series
1999 PH-1, without recourse";
(ii) the original or a copy of the related recorded
Mortgage and, if applicable, the originals or copies
of any intervening assignments of such Mortgage
showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if
any, in each case with evidence of recording
indicated thereon;
(iii) an original assignment of the related Mortgage, in
recordable form, executed by the most recent assignee
of record thereof prior to the Trustee or, if none,
by the originator, either in blank or in favor of the
Trustee (in such capacity);
(iv) the original or a copy of the related recorded
Assignment of Leases (if such item is a document
separate from the related Mortgage) and, if
applicable, the originals or copies of any
intervening assignments of such Assignment of Leases
showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if
any, in each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of
Leases (if such item is a document separate from the
related Mortgage), in recordable form, executed by
the most recent assignee of record thereof prior to
the Trustee or, if none, by the
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originator, either in blank or in favor of the
Trustee (in such capacity), which assignment may be
included as part of the corresponding assignment of
Mortgage referred to in clause (iii) above;
(vi) an original or copy of any related security agreement
(if such item is a document separate from the related
Mortgage) and, if applicable, the originals or copies
of any intervening assignments of such security
agreement showing a complete chain of assignment from
the originator of the Mortgage Loan to the most
recent assignee thereof prior to the Trustee, if any;
(vii) an original assignment of any related security
agreement (if such item is a document separate from
the related Mortgage) executed by the most recent
assignee thereof prior to the Trustee or, if none, by
the originator, either in blank or in favor of the
Trustee (in such capacity), which assignment may be
included as part of an omnibus assignment covering
other documents relating to the Mortgage Loan
provided that such an omnibus assignment would be
effective under applicable law;
(viii) originals or copies of all assumption, modification,
consolidation, written assurance and substitution
agreements, with evidence of recording thereon (if
appropriate), in those instances where the terms or
provisions of the Mortgage, Mortgage Note or any
related security document have been modified or the
Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title
insurance policy issued in connection with the
origination of the Mortgage Loan, together with all
endorsements or riders (or copies thereof) that were
issued with or subsequent to the issuance of such
policy, insuring the priority of the Mortgage as a
first lien on the Mortgaged Property;
(x) the original or a copy of any guaranty of the
obligations of the Mortgagor under the Mortgage Loan,
together with (A) if applicable, the originals or
copies of any intervening assignments of such
guaranty showing a complete chain of assignment from
the originator of the Mortgage Loan to the most
recent assignee thereof prior to the Trustee, if any,
and (B) an original assignment of such guaranty
executed by the most recent assignee thereof prior to
the Trustee or, if none, by the originator either in
blank or in favor of the Trustee in such capacity
(which assignment may be included as part of an
omnibus assignment covering other documents relating
to the Mortgage Loan provided that such an omnibus
assignment would be effective under applicable law);
(xi) (A) a filed acknowledgment copy of any UCC Financing
Statements and continuation statements which were
filed in order to perfect (and maintain the
perfection of) any security interest held by the
originator of the Mortgage Loan in and to the
personalty of the Mortgagor at the Mortgaged Property
(in each case with evidence of filing thereon) and
which were in the possession of the related Seller
(or its agent) at the time the subject Mortgage File
was delivered to the Trustee, (B) filed
acknowledgment copies of any intervening assignments
of the UCC Financing Statements referred to in clause
(xi)(A) and which were in the possession of the
related Seller (or its agent) at the time the subject
Mortgage
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File was delivered to the Trustee, and (C) if any
such security interest remains perfected and the
earlier UCC Financing Statements and continuation
statements were in the possession of the Seller, a
UCC Financing Statement executed by the most recent
assignee of record prior to the Trustee or, if none,
by the originator, evidencing the transfer of such
security interest, either in blank or in favor of the
Trustee;
(xii) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate)
granted by the Mortgagor if the Mortgage, Mortgage
Note or other document or instrument referred to
above was signed on behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the
related Mortgaged Property, the original ground lease
or a copy thereof;
(xiv) the original or a copy of the loan agreement, if
applicable;
(xv) the original or a copy of the lockbox agreement, if
applicable; and
(xvi) if applicable, an original letter of credit endorsed
without recourse, either in blank or to the order of
the Trustee in the following form: "Pay to the order
of LaSalle Bank National Association, as Trustee for
the registered holders of Heller Financial Commercial
Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1, without
recourse".
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee, 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" means a mortgage loan identified on the
Mortgage Loan Schedule, as amended from time to time, and conveyed, transferred,
sold, assigned to and deposited with the Trustee pursuant to Section 2.1 or
Section 2.3. As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage and other security documents contained in the related
Mortgage File.
"MORTGAGE LOAN PURCHASE AGREEMENT" means either Mortgage Loan
Purchase Agreement I or Mortgage Loan Purchase Agreement II.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain
Mortgage Loan Purchase Agreement dated May 21, 1999, between HFCF and the
Depositor, with respect to the HFCF Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain
Mortgage Loan Purchase Agreement dated May 21, 1999, between the PMCF, PMCC and
the Depositor, with respect to the PMCF Loans.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means,
collectively, the schedules attached hereto as Schedule I, which identifies each
HFCF Loan and Schedule II, which identifies each PMCF Loan, as such schedules
may be amended from time to time pursuant to Section 2.3.
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"MORTGAGE NOTE" means the note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with any rider, addendum or amendment thereto.
"MORTGAGE POOL" means, collectively, the Mortgage Loans
(including without limitation REO Mortgage Loans and Replacement Mortgage Loans,
but excluding Deleted Mortgage Loans).
"MORTGAGE RATE" means, with respect to any Mortgage Loan
(including without limitation an REO Mortgage Loan), the fixed annualized rate
at which interest is scheduled (in the absence of default) to accrue on such
Mortgage Loan from time to time (in accordance with the terms of the related
Mortgage Note (as such may be modified at any time following the Closing Date)
and applicable law), and without regard to any passage of the Maturity Date or
any acquisition of the related Mortgaged Property as an REO Property, provided
that in the case of a Non-30/360 Mortgage Loan, the Mortgage Rate shall be
determined in accordance with this sentence assuming that interest is scheduled
(in the absence of default) to accrue on such Mortgage Loan at the Equivalent
30/360 Rate, and provided further that with respect to each Interest Reserve
Loan, (i) the Mortgage Rate for the one month period preceding the Due Dates in
both January and February in any year that is not a leap year and in February in
any year that is a leap year, shall be determined net of any Withheld Amounts
and (ii) the Mortgage Rate for the one month period preceding the Due Date in
March shall be determined taking into account the addition of the Withheld
Amounts. The "Mortgage Rate" for purposes of calculating the REMIC II Remittance
Rate shall be the Mortgage Rate of such Mortgage Loan without taking into
account any reduction in the interest rate by a bankruptcy court pursuant to a
plan of reorganization or pursuant to any of its equitable powers or a reduction
in interest or principal due to a modification of such Mortgage Loan.
"MORTGAGED PROPERTY" means, individually and collectively, as
the context may require, the real property interest or interests subject to the
lien of a Mortgage and constituting collateral for a Mortgage Loan. With respect
to any Cross-Collateralized Mortgage Loan, as the context may require,
"Mortgaged Property" may mean, collectively, all the Mortgaged Properties
securing such Cross-Collateralized Mortgage Loan.
"MORTGAGEE" means, which respect to any Mortgage as of any
date of determination, the holder of the related Mortgage Note as of such date.
"MORTGAGOR" means the obligor or obligors on a Mortgage Note.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means, with
respect to any Distribution Date, the sum of (I) 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 (other than
Specially Serviced Mortgage Loans) during the related Collection Period, exceeds
(b) the sum of (i) the aggregate of all Prepayment Interest Excesses realized in
connection with the receipt of Principal Prepayments on the Mortgage Loans
(other than Specially Serviced Mortgage Loans) during the related Collection
Period, and (ii) the aggregate amount deposited by the Master Servicer in the
Distribution Account for such Distribution Date pursuant to Section 8.21(b) in
connection with such Prepayment Interest Shortfalls, and (II) 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 Specially
Serviced Mortgage Loans during the related Collection Period, exceeds (b) the
aggregate of all Prepayment Interest Excesses realized in connection with the
receipt of Principal Prepayments on the Specially Serviced Mortgage Loans during
the related Collection Period,.
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"NET MORTGAGE RATE" means, with respect to any Mortgage Loan
(including without limitation an REO Mortgage Loan), as of any date of
determination, a rate per annum equal to the related Mortgage Rate then in
effect, minus the applicable Master Servicing Fee Rate and Trustee Fee Rate.
"NEW LEASE" means any lease of any REO Property entered into
on behalf of the Trust, including any lease renewed or extended on behalf of the
Trust if the Trust has the right to renegotiate the terms of such lease.
"NEW YORK PRESENTING OFFICE" means any office of an agent of
the Trustee or the Certificate Registrar, located in New York, New York, as the
Trustee or the Certificate Registrar, as the case may be, may designate from
time to time by written notice to the Depositor and the Certificateholders.
"NOI ADJUSTMENT WORKSHEET" means a report prepared by the
Master Servicer or the Special Servicer, as the case may be, substantially
containing the content described in Exhibit H-8 attached hereto, presenting the
computations made in accordance with the methodology described in such Exhibit
H-8 to "normalize" the full year net operating income and debt service coverage
numbers used in the other reports required by this Agreement, sent to the
Trustee with each annual operating statement for a Mortgaged Property pursuant
to Section 8.14(d).
"NON-30/360 MORTGAGE LOAN" means a Mortgage Loan that accrues
interest other than on the basis of a 360-day year consisting of twelve 30-day
months.
"NONDISQUALIFICATION OPINION" means a written opinion of
Independent nationally recognized outside tax counsel addressed to the Trustee,
reasonably acceptable in form and substance to the Trustee, that a contemplated
action will neither cause (i) any REMIC Pool to fail to qualify as a REMIC at
any time that any Certificates are outstanding nor (ii) a gain on the
disposition of a Qualified Mortgage which would be subject to the 100% tax on
"prohibited transactions," imposed by Section 860F of the Code, nor (iii) any
REMIC Pool to be subject to any tax under the REMIC Provisions, except for any
tax on net income from foreclosure property as provided for herein.
"NONRECOVERABLE ADVANCE" means any Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance.
"NONRECOVERABLE P&I ADVANCE" means any P&I Advance previously
made or proposed to be made in respect of a Mortgage Loan (including, without
limitation, an REO Mortgage Loan) which, in the reasonable and good faith
judgment of the Master Servicer, or, if applicable, the Trustee or Fiscal Agent,
will not be ultimately recoverable (together with Advance Interest thereon) from
late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan.
"NONRECOVERABLE SERVICING ADVANCE" means any Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property which, in the reasonable and good faith judgment of the Master
Servicer, the Special Servicer or, if applicable, the Trustee or the Fiscal
Agent, will not be ultimately recoverable (together with Advance Interest
thereon) from late payments, Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, or any other recovery on or in respect of such Mortgage
Loan or REO Property.
"OFFICER'S CERTIFICATE" means (x) in the case of the
Depositor, a certificate signed by one or more of the Chairman of the Board, any
Vice Chairman, the President, or any Senior Vice
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President, Vice President or Assistant Vice President, and by one or more of the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
the Depositor, or (y) in the case of the Master Servicer and the Special
Servicer, a certificate signed by any of the officers referred to above or an
employee thereof designated as a Servicing Officer or Special Servicing Officer
pursuant to this Agreement, and (z) in the case of the Trustee, a certificate
signed by a Responsible Officer.
"OPERATING ADVISER" shall have the meaning specified in
Section 8.32.
"OPERATING STATEMENT ANALYSIS" means, with respect to each
Mortgage Loan and REO Mortgage Property, a report substantially containing the
content described in Exhibit H-7 attached hereto, prepared in accordance with
Section 8.14(j).
"OPINION OF COUNSEL" means a written opinion of counsel
addressed to the Trustee, reasonably acceptable in form and substance to the
Trustee, and which may be from in-house or outside counsel to the party required
to deliver such opinion but which must be from Independent outside counsel with
respect to any such opinion of counsel concerning the taxation, or status as a
REMIC for tax purposes, of the Trust or any REMIC Pool.
"OTS" means the Office of Thrift Supervision or any successor
thereto.
"OWNERSHIP INTEREST" means, 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" means, as to any Mortgage Loan (including,
without limitation, any REO Mortgage Loan), any advance in respect of delinquent
principal and/or interest made by the Master Servicer pursuant to Section 4.1
(or any similar advance made by the Trustee or the Fiscal Agent pursuant to
Section 4.3).
"P&I ADVANCE DATE" means, with respect to any Distribution
Date, the Business Day preceding such Distribution Date.
"PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"PASS-THROUGH ENTITY" means any of (a) a regulated investment
company described in Section 851 of the Code, a real estate investment trust
described in Section 856 of the Code, a common trust fund or an organization
described in Section 1381(a) of the Code, (b) any partnership, trust or estate
as such terms are defined in the Code or (c) any Person holding a Residual
Certificate as nominee for another Person.
"PASS-THROUGH RATE" means with respect to,
(1) the Class A-1 Certificates, the Class A-2
Certificates, the Class H Certificates, the Class J
Certificates, the Class K Certificates, the Class L
Certificates, the Class M Certificates and the Class
N Certificates for any Distribution Date, the
respective fixed rates per annum specified as such in
the Preliminary Statement;
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(2) the Class X Certificates, for any Distribution Date,
the Class X Certificate Rate;
(3) the Class B Certificates, for any Distribution Date,
the Class B Certificate Rate;
(4) the Class C Certificates, for any Distribution Date,
the Class C Certificate Rate;
(5) the Class D Certificates, for any Distribution Date,
the Class D Certificate Rate; and
(6) the Class E Certificates, the Class F Certificates
and the Class G Certificates, for any Distribution
Date, the REMIC II Remittance Rate.
"PCB" has the meaning set forth in the definition of Hazardous
Materials.
"PENALTY CHARGES" means, with respect to any Mortgage Loan
(including without limitation an REO Mortgage Loan), any amounts collected
thereon that represent Late Fees or Default Interest.
"PERCENTAGE INTEREST" means, (i) with respect to any REMIC III
Regular Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or the 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 initial Class Principal Balance or
the initial Class X Notional Amount, as the case may be, of the relevant Class
as of the Closing Date; and (ii) with respect to a Residual Certificate, the
percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"PERMITTED TRANSFEREE" means any Transferee other than a
Disqualified Organization.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"PLAN" has the meaning set forth in Section 3.3(d).
"PMCC" means Prudential Mortgage Capital Company, LLC or any
successor in interest.
"PMCC SUB-SERVICING AGREEMENT" has the meaning set forth in
Section 8.4.
"PMCF" means Prudential Mortgage Capital Funding, LLC, or any
successor in interest.
"PMCF LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on
Schedule I hereto.
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"PREPAYMENT ASSUMPTION" means a CPR of 0%, applied to each
Mortgage Loan during any period that the related Mortgagor is permitted to make
voluntary Principal Prepayments without a Yield Maintenance Charge or Prepayment
Premium (and with respect to each Anticipated Repayment Date Loan, treating its
Anticipated Repayment Date as its Maturity Date), calculated on the basis of a
yield maintenance formula used for determining the accrual of original issue
discount, market discount and premium, if any, on the REMIC I Regular Interests,
the REMIC II Regular Interests or the REMIC III Regular Certificates for federal
income tax purposes.
"PREPAYMENT INTEREST EXCESS" means, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part
during any Collection Period, which Principal Prepayment was applied to such
Mortgage Loan following such Mortgage Loan's Due Date in such Collection Period,
the amount of interest at the related Net Mortgage Rate (except to the extent it
constitutes Excess Interest) accrued on the amount of such Principal Prepayment
during the period from and after such Due Date to but not including the date
such Principal Prepayment was applied to such Mortgage Loan, to the extent
actually collected from the related Mortgagor (without regard to any Yield
Maintenance Charge or Prepayment Premium that may have been collected).
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or part during
any Collection Period, which Principal Prepayment was applied to such Mortgage
Loan prior to such Mortgage Loan's Due Date in such Collection Period, the
amount of interest that would have accrued at the related Net Mortgage Rate
(except to the extent it constitutes Excess Interest) on the amount of such
Principal Prepayment during the period commencing on the date as of which such
Principal Prepayment was applied to such Mortgage Loan and ending on the day
immediately preceding such Due Date, inclusive, to the extent not collected from
the related Mortgagor (without regard to any Yield Maintenance Charge or
Prepayment Premium that may have been collected).
"PREPAYMENT PREMIUM" means an amount payable upon the
prepayment of a Mortgage Loan generally equal to a fixed percentage of the then
outstanding principal balance of such Mortgage Loan payable in connection with
any principal prepayment made during a specified period of time generally after
any lockout period and not during any yield maintenance period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the
REMIC III Regular Certificates other than the Class X Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, for any Distribution
Date, the aggregate of (i) the Current Principal Distribution Amount for such
Distribution Date, and (ii) if such Distribution Date is subsequent to the
initial Distribution Date, the excess, if any, of the Principal Distribution
Amount for the preceding Distribution Date, over the aggregate distributions of
principal made on the Principal Balance Certificates in respect of such
Principal Distribution Amount on the preceding Distribution Date.
"PRINCIPAL PREPAYMENT" means any payment of principal made by
the Mortgagor on a Mortgage Loan that is received in advance of its scheduled
Due Date and that is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"PRIVATELY OFFERED CERTIFICATES" means, unless and until
registered under the Securities Act, the Class X, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N and Residual Certificates.
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"PROPOSED PLAN" has the meaning set forth in Section 8.20.
"PROSPECTIVE INVESTOR" means any prospective purchaser of a
Certificate or, in the case of a Book-Entry Certificate, of a beneficial
ownership interest therein.
"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement dated
May 21, 1999 relating to the Publicly Offered Certificates.
"PUBLICLY OFFERED CERTIFICATES" means the Class A-1, Class
A-2, Class B, Class C and Class D Certificates.
"PURCHASE PRICE" means, with respect to any Mortgage Loan
(other than an REO Mortgage Loan), a price equal to the outstanding principal
balance of such Mortgage Loan as of the date of purchase, together with (a) all
accrued and unpaid interest on such Mortgage Loan at the related Mortgage Rate
to but not including the Due Date in the Collection Period of purchase, (b) all
related Servicing Advances, together with interest on all Advances hereunder
accrued to the date of purchase on Advances and (c) if such Mortgage Loan is
being repurchased or substituted for by a Seller pursuant to Section 7 of the
related Mortgage Loan Purchase Agreement, all expenses reasonably incurred or to
be incurred by the Master Servicer, the Special Servicer, the Depositor and the
Trustee in respect of the Breach or Material Defect giving rise to the
repurchase or substitution obligation. With respect to any REO Property,
Purchase Price means the amount calculated in accordance with the preceding
sentence in respect of the related REO Mortgage Loan.
"QIB" means a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act.
"QUALIFIED APPRAISER" means an Independent licensed
MAI-designated appraiser with at least five years experience in properties of
like kind and in the same area.
"QUALIFIED INSURER" means an insurance company or security or
bonding company duly qualified as such under the laws of the relevant
jurisdiction and duly authorized and licensed in such jurisdiction to transact
the applicable insurance business and to write the insurance provided.
"QUALIFIED MORTGAGE" means a Mortgage Loan that is a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code (but
without regard to the rule in Treasury Regulation Section 1.860G-2(f)(2) that
treats a defective obligation as a qualified mortgage, or any substantially
similar successor provision) and applicable Treasury regulations promulgated
pursuant thereto.
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means a Mortgage Loan
substituted for a Deleted Mortgage Loan which, on the date of substitution, (i)
has a principal balance, after deduction of the principal portion of the Monthly
Payment due in the month of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) is accruing interest at a rate of
interest at least equal to that of the Deleted Mortgage Loan; (iii) has a fixed
Mortgage Rate; (iv) is accruing interest on the same basis as the Deleted
Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve
30-day months); (v) has a remaining term to stated maturity not greater than,
and not more than two years less than, that of the Deleted Mortgage Loan; (vi)
has an original Loan-to-Value Ratio not higher than that of the Deleted Mortgage
Loan and a current Loan-to-Value Ratio (equal to the principal balance on the
date of substitution divided by its current Appraised Value) not higher than the
then-current Loan-to-Value Ratio of the Deleted Mortgage Loan; (vii) will comply
with all of the representations and warranties relating to Mortgage Loans set
forth in the related Mortgage Loan
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Purchase Agreement, as of the date of substitution; (viii) has an Environmental
Assessment relating to the related Mortgaged Property in its Servicing File; and
(ix) as to which the Trustee has received a written opinion of Independent
outside tax counsel, reasonably acceptable in form and substance to the Trustee,
at the related Seller's expense, that such Mortgage Loan is a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code;
provided that no such Mortgage Loan shall be substituted for a Deleted Mortgage
Loan if it has a Maturity Date after the date two years prior to the Rated Final
Distribution Date, and provided, further, that no such Mortgage Loan shall be
substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is
obtained; and provided, further that no such Mortgage Loan shall be substituted
for a Deleted Mortgage Loan if it would result in an Adverse REMIC Event in
respect of any REMIC Pool; and provided, further that no such Mortgage Loan
shall be substituted for a Deleted Mortgage Loan unless the Operating Adviser
shall have approved of such substitution based upon an engineering report and
the Environmental Assessment obtained with respect to such Mortgage Loan
(provided, however, that such approval of the Operating Adviser may not be
unreasonably withheld, as determined by the Special Servicer in accordance with
the Servicing Standard). In the event that either one mortgage loan is
substituted for more than one Deleted Mortgage Loan or more than one mortgage
loan is substituted for one or more Deleted Mortgage Loans, then (a) the
principal balance referred to in clause (i) above shall be determined on the
basis of aggregate principal balances and (b) the rates referred to in clauses
(ii) and (iii) above and the remaining term to stated maturity referred to in
clause (v) above shall be determined on a weighted average basis. Whenever a
Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan
pursuant to this Agreement, the party effecting such substitution shall certify
that such Mortgage Loan meets all of the requirements of this definition and
shall send such certification to the Trustee.
"RATED FINAL DISTRIBUTION DATE" means the Distribution Date in
May 2031.
"RATING AGENCIES" means Fitch and Moody's.
"RATING AGENCY CONFIRMATION" means, with respect to any
matter, where required under this Agreement, confirmation in writing by each
Rating Agency that a proposed action, failure to act, or other event specified
herein will not in and of itself result in the withdrawal, downgrade, or
qualification (if applicable) of the then-current rating assigned by such Rating
Agency to any Class of Certificates then rated by such Rating Agency.
"REALIZED LOSS" means (x) with respect to each defaulted
Mortgage Loan as to which a Final Recovery Determination has been made, or with
respect to any 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 (i) the unpaid principal balance of such Mortgage Loan (or, in the case of an
REO Property, the related REO Mortgage Loan) as of the commencement of the
Collection Period in which the Final Recovery Determination was made, plus (ii)
all accrued but unpaid interest (other than Excess Interest) on such Mortgage
Loan (or, in the case of an REO Property, the related REO Mortgage Loan) at the
related Mortgage Rate to but not including the Due Date in the Collection Period
in which the Final Recovery Determination was made, in any event determined
without taking into account the amounts described in subclause (iv) of this
sentence, plus (iii) any related unreimbursed Servicing Advances as of the
commencement of the Collection Period in which the Final Recovery Determination
was made, together with any new related Servicing Advances made during such
Collection Period and all unpaid Advance Interest on all Advances, minus (iv)
all payments and proceeds, if any, received in respect of such Mortgage Loan or
REO Property, as the case may be, during the Collection Period in which such
Final Recovery Determination was made (net of any related Liquidation Expenses
paid therefrom); (y) with respect to any Mortgage Loan as to which any portion
of the outstanding principal or accrued
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interest owed thereunder was forgiven in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer pursuant to Section 8.18, the amount of such principal or
interest so forgiven; and (z) with respect to any Mortgage Loan as to which the
Mortgage Rate thereon has been permanently reduced for any period in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Master Servicer or Special Servicer pursuant to Section 8.18, the amount of
the consequent reduction in the interest portion of each successive Monthly
Payment due thereon. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
"RECORD DATE" means, with respect to any Class of Certificates
for any Distribution Date, the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date occurs.
"REGULATION D" has the meaning set forth in Section 3.3(g).
"REMIC" means a real estate mortgage investment conduit within
the meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets included in the
Trust created hereby and to be administered hereunder, consisting of the
Mortgage Loans (excluding the right to Excess Interest in respect of the
Anticipated Repayment Date Loans), as from time-to-time are subject to this
Agreement, the Mortgage Files relating thereto, all proceeds of and payments
under such Mortgage Loans received after the Closing Date (other than Excess
Interest), such amounts as shall from time to time be held in the Collection
Account and the Distribution Account, the Insurance Policies and any REO
Properties acquired in respect of any Mortgage Loan, for which a REMIC election
is to be made pursuant to Section 12.1(a) hereof.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular
Interests and the Class R-I Certificates.
"REMIC I REGULAR INTEREST" means, with respect to each
Mortgage Loan (including, without limitation, each REO Mortgage Loan), the
separate uncertificated interest in REMIC I issued to the Trustee in respect of
such Mortgage Loan hereunder and designated as a "regular interest" in REMIC I.
Each REMIC I Regular Interest shall be held by the Trustee as part of the assets
of REMIC II, and shall represent a right to receive interest at the related
REMIC I Remittance Rate and distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance (which shall equal the Cut-off Date Principal Balance of the
related Mortgage Loan). The designation for each REMIC I Regular Interest shall
be the loan number for the related Mortgage Loan set forth in the Mortgage Loan
Schedule as of the Closing Date. If a Replacement Mortgage Loan or Loans are
substituted for any Deleted Mortgage Loan, the REMIC I Regular Interest that
related to the Deleted Mortgage Loan shall thereafter relate to such Replacement
Mortgage Loan(s).
"REMIC I REMITTANCE RATE" means, with respect to any REMIC I
Regular Interest for any Distribution Date, a rate per annum equal to the Net
Mortgage Rate in effect for the related Mortgage Loan (including without
limitation an REO Mortgage Loan). If any Mortgage Loan included in the Trust
Fund as of the Closing Date is replaced by a Replacement Mortgage Loan or Loans,
the REMIC I
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Remittance Rate for the related REMIC I Regular Interest shall still be
calculated in accordance with the preceding sentence based on the Net Mortgage
Rate for the Deleted Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of
the REMIC I Regular Interests and all distributions thereon conveyed to the
Trustee for the benefit of REMIC III and for which a separate REMIC election is
to be made pursuant to Section 12.1(a) hereof.
"REMIC II DISTRIBUTION AMOUNT" has the meaning set forth in
Section 6.2(d).
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST" means any of the fourteen separate
uncertificated beneficial interests in REMIC II issued to the Trustee hereunder
and designated as a "regular interest" in REMIC II. Each REMIC II Regular
Interest shall be held by the Trustee as part of the assets of REMIC III, and
shall represent a right to receive interest at the related REMIC II Remittance
Rate in effect from time to time and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto. The designations for the respective REMIC II
Regular Interests are set forth in the Preliminary Statement hereto.
"REMIC II REMITTANCE RATE" means, with respect to each of
REMIC II Regular Interests A, B, C, D, E, F, G, H, J, K, L, M and N for any
Distribution Date, the Weighted Average REMIC I Remittance Rate.
"REMIC III" means the segregated pool of assets consisting of
the REMIC II Regular Interests and for which a separate REMIC election is to be
made pursuant to Section 12.1(a) hereof.
"REMIC III CERTIFICATE" means any Certificate, other than a
Class R-I or Class R-II Certificate.
"REMIC III DISTRIBUTION AMOUNT" has the meaning set forth in
Section 6.3(c).
"REMIC III REGULAR CERTIFICATE" means any REMIC III
Certificate, other than a Class R-III Certificate, and where appropriate with
respect to a Class X Certificate, may refer to each of the Component Interests
thereof, as the case requires. References to REMIC III Regular Certificates
will, with respect to the Class N Certificate, be considered to refer to the
Class N REMIC Interest that is a "regular interest" in REMIC III, where
appropriate.
"REMIC POOL" means each of the three segregated pools of
assets designated as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC PROVISIONS" means the 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 regulations and rulings promulgated thereunder, as the foregoing
may be in effect from time to time and taking account, as appropriate, of any
proposed legislation which, as proposed, would have an effective date prior to
enactment thereof and any proposed regulations.
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"RENTS FROM REAL PROPERTY" means, with respect to any REO
Property, income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" has the meaning set forth in Section 8.19(b).
"REO ACQUISITION" means the acquisition of any REO Property
pursuant to Section 8.7.
"REO EXTENSION" has the meaning set forth in Section 8.19(a).
"REO INCOME" means, with respect to any REO Property for any
Collection Period, all income received in connection with such REO Property
during such period.
"REO MORTGAGE LOAN" means a Mortgage Loan as to which the
related Mortgaged Property is an REO Property.
"REO PROPERTY" means a Mortgaged Property acquired by the
Trust through foreclosure, deed-in-lieu of foreclosure, abandonment or
reclamation from bankruptcy in connection with a Defaulted Mortgage Loan or
otherwise treated as foreclosure property under the REMIC Provisions.
"REO SALE DEADLINE" has the meaning set forth in Section
8.19(a).
"REO STATUS REPORT" means a report substantially containing
the content described in Exhibit H-5 attached hereto, setting forth, among other
things, with respect to each REO Property that was included in the Trust Fund as
of the close of business on the Determination Date immediately preceding the
preparation of such report, (i) the acquisition date of such REO Property, (ii)
the amount of income collected with respect to any 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 the Determination Date (including any prepared internally by the
Special Servicer) prepared in accordance with Section 8.14(j).
"REO TAX" has the meaning set forth in Section 8.20(a).
"REPLACEMENT MORTGAGE LOAN" means any Qualifying Substitute
Mortgage Loan that is substituted for one or more Deleted Mortgage Loans.
"REPORT DATE" means the third Business Day before the related
Distribution Date but in no event earlier than two Business Days after the
Determination Date.
"REPURCHASE PROCEEDS" means amounts paid by any Seller under
the related Mortgage Loan Purchase Agreement, in connection with the repurchase
of any Mortgage Loan as contemplated by Section 2.3.
"REQUEST FOR RELEASE" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan (including
without limitation any REO Mortgage Loan) as to which an Appraisal Event has
occurred and is continuing.
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"RESERVE ACCOUNT" means the account or accounts created and
maintained pursuant to Section 8.3(d).
"RESERVE FUNDS" means, with respect to any Mortgage Loan, any
cash amounts or instruments convertible into cash delivered by the related
Mortgagor to be held in escrow by or on behalf of the Mortgagee representing
reserves for repairs, replacements, capital improvements, environmental testing
and remediation and/or similar type items with respect to the related Mortgaged
Property.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the
Class R-I Certificates, with respect to REMIC II, the Class R-II Certificates
and, with respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the
initial Trustee, any officer assigned to the Asset-Backed Securities Trust
Services Group of its Corporate Trust Department, and when used with respect to
any successor trustee, any Vice President, Assistant Vice President, corporate
trust officer or any assistant corporate trust officer.
"REVISED INTEREST RATE" has the meaning set forth in the
definition of Excess Interest.
"RULE 144A" means Rule 144A under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES LEGEND" means the legend to be printed on the
Certificates as set forth in Section 3.3(c).
"SELLER" means HFCF or PMCF, as the case may be.
"SENIOR CERTIFICATES" means, collectively, the Class A and
Class X Certificates.
"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
Master Servicer and any date of determination, the aggregate of the products
obtained by multiplying, for each Mortgage Loan, (a) the principal balance of
such Mortgage Loan as of the end of the immediately preceding Collection Period
and (b) the difference between the Master Servicing Fee Rate for such Mortgage
Loan over the servicing fee rate (if any) applicable to such Mortgage Loan as
specified in any Sub-Servicing Agreement related to such Mortgage Loan.
"SERVICING ACCOUNT" means the account or accounts created and
maintained pursuant to Section 8.3(a).
"SERVICING ADVANCES" means all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and
expenses and fees of real estate brokers) incurred by the Master Servicer, the
Special Servicer or, if applicable, the Trustee in connection with the servicing
and administering of (a) a Mortgage Loan in respect of which a default,
delinquency or other unanticipated event has occurred or as to which a default
is imminent or (b) an REO Property, including, but not limited to, the cost of
(i) compliance with the obligations of the Master Servicer and/or the
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Special Servicer set forth in Section 8.3(c) and 8.7(c), (ii) the preservation,
restoration and protection of a Mortgaged Property or REO Property, (iii)
obtaining any Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
in respect of any Mortgage Loan or REO Property, (iv) any enforcement or
proceedings with respect to a Mortgaged Property, including without limitation
foreclosures and similar proceedings and any required appraisals, (v) the
operation, management, maintenance and liquidation of any REO Property, and (vi)
any other cost or expense designated as a Servicing Advance in accordance with
this Agreement; 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 in
connection with its purchase of any Mortgage Loan or REO Property pursuant to
any provision of this Agreement. All Emergency Advances made by or on behalf of
the Special Servicer hereunder shall be considered "Servicing Advances" for the
purposes hereof.
"SERVICING FEES" means, with respect to each Mortgage Loan
(including without limitation each REO Mortgage Loan), the Master Servicing Fee
and, if applicable, the Special Servicing Fee.
"SERVICING FILE" means, collectively as to any Mortgage Loan,
any documents, other than documents required to be part of the related Mortgage
File, in the possession of the Master Servicer or Special Servicer and relating
to the origination and servicing of such Mortgage Loan, including without
limitation a closing binder for such Mortgage Loan and, in each case if and to
the extent available, any appraisal, environmental report, engineering report,
operating statements, rent rolls and copies of major leases.
"SERVICING OFFICER" means any officer or employee of the
Master 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 or employees furnished to the Trustee by the Master
Servicer and signed by an officer of the Master Servicer, as such list may from
time to time be amended.
"SERVICING STANDARD" has the meaning set forth in Section
8.1(a).
"SERVICING TRANSFER EVENT" means, 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".
"SPECIAL SERVICER" means Lennar Partners, Inc. or any
successor special servicer as herein provided.
"SPECIAL SERVICING FEE" means, with respect to each Specially
Serviced Mortgage Loan and REO Mortgage Loan, the fee designated as such and
payable to the Special Servicer pursuant to Section 8.10(b).
"SPECIAL SERVICING FEE RATE" means, with respect to each
Specially Serviced Mortgage Loan and REO Mortgage Loan, 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of
the Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished
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to the Trustee and the Master Servicer by the Special Servicer signed by an
officer of the Special Servicer, as such list may from time to time be amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means any Mortgage Loan as
to which any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any
Balloon Payment, which failure has continued unremedied for 30 days, provided
that if the related Mortgagor has obtained on the date such payment was due a
written commitment for refinancing the Mortgage Loan within 90 days of such
date, then the failure to make such Balloon Payment shall not cause the related
Mortgage Loan to become a Specially Serviced Mortgage Loan (provided that if
such Mortgage Loan is not refinanced within such 90-day period, then such
Mortgage Loan shall become a Specially Serviced Mortgage Loan upon the
expiration of such period); or
(b) the related Mortgagor has failed to make when due any
Monthly Payment (other than a Balloon Payment) or any other payment required
under the related Mortgage Note or the related Mortgage, which failure continues
unremedied for 60 days; or
(c) the Master Servicer has determined, in accordance
with the Servicing Standard, that a default in the making of a Monthly Payment
or any other payment required under the related Mortgage Note or the related
Mortgage is likely to occur within 30 days and is likely to remain unremedied
for at least 60 days or, in the case of a Balloon Payment, for at least 30 days
(subject to the provisions of clause (a) above); or
(d) there shall have occurred a default under the related
loan documents, other than as described in clause (a) or (b) above, that (in the
Master Servicer's judgment in accordance with the Servicing Standard) materially
impairs the value of the related Mortgaged Property as security for the Mortgage
Loan or otherwise materially and adversely affects the interests of
Certificateholders, which default has continued unremedied for the applicable
grace period under the terms of the Mortgage Loan (or, if no grace period is
specified, 60 days); or
(e) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the related Mortgagor and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(f) the related Mortgagor shall have consented to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to such Mortgagor or of relating to all or
substantially all of its property; or
(g) the related Mortgagor shall have admitted in writing
its inability to pay its debts generally as they become due, filed a petition to
take advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended payment of
its obligations; or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the related
Mortgaged Property;
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provided that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan when a Liquidation Event has occurred in respect of such Mortgage Loan, or
at such time as such of the following as are applicable occur with respect to
the circumstances identified above that caused the Mortgage Loan to be
characterized as a Specially Serviced Mortgage Loan (and provided that no other
Servicing Transfer Event then exists):
(w) with respect to the circumstances described in
clauses (a) and (b) above, the related Mortgagor has
made three consecutive full and timely Monthly
Payments under the terms of such Mortgage Loan (as
such terms may be changed or modified in connection
with a bankruptcy or similar proceeding involving the
related Mortgagor or by reason of a modification,
waiver or amendment granted or agreed to by the
Special Servicer pursuant to Section 8.18);
(x) with respect to the circumstances described in
clauses (c), (e), (f) and (g) above, such
circumstances cease to exist in the good faith and
reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause
(d) above, such default is cured; and
(z) with respect to the circumstances described in clause
(h) above, such proceedings are terminated.
"STARTUP DAY" means, with respect to each of REMIC I, REMIC II
and REMIC III, the day designated as such in Section 12.1(b).
"STATED MATURITY DATE" means, with respect to any Mortgage
Loan, the Due Date on which the last payment of principal is due and payable
under the terms of the related Mortgage Note as in effect on the Closing Date,
without regard to any change in or modification of such terms in connection with
a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Master Servicer or Special Servicer pursuant to Section 8.18.
"STATED PRINCIPAL BALANCE" means, as of any date of
determination, with respect to any Mortgage Loan (including without limitation
any REO Mortgage Loan), an amount equal to (a) the unpaid principal balance of
such Mortgage Loan as of the Cut-off Date (or, in the case of a Replacement
Mortgage Loan, as of the related date of substitution), after application of all
payments due on or before such date, whether or not received, reduced on a
cumulative basis on each subsequent Distribution Date (to not less than zero) by
(b) the sum of (i) all payments (or P&I Advances in lieu thereof) of, and all
other collections allocated as provided in Section 1.2 to, principal of or with
respect to such Mortgage Loan that are (or, if they had not been applied to
cover any Additional Trust Expense, would have been) distributed to
Certificateholders on such Distribution Date, and (ii) the principal portion of
any Realized Loss incurred in respect of such Mortgage Loan during the related
Collection Period, provided that, notwithstanding the foregoing, if a
Liquidation Event occurs in respect of such Mortgage Loan (or any related REO
Property), then the "Stated Principal Balance" of such Mortgage Loan shall be
zero commencing as of the Distribution Date in the Collection Period next
following the Collection Period in which such Liquidation Event occurred.
"SUBORDINATE CERTIFICATES" means, collectively, the Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M and Class N Certificates.
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"SUB-SERVICER" means any Person with which the Master Servicer
or the Special Servicer has entered into a Sub-Servicing Agreement.
"SUB-SERVICING AGREEMENT" means the written contract between
the Master Servicer or the Special Servicer and any Sub-Servicer relating to
servicing and administration of Mortgage Loans as provided in Section 8.4.
"SUBSTITUTION SHORTFALL AMOUNT" means, in connection with the
substitution of one or more Replacement Mortgage Loans for one or more Deleted
Mortgage Loans, the amount, if any, by which the Purchase Price or aggregate
Purchase Price, as the case may be (using the outstanding principal balance as
of the date of substitution), for such Deleted Mortgage Loan(s) exceeds the
initial Stated Principal Balance or aggregate Stated Principal Balance, as the
case may be, of such Replacement Mortgage Loan(s).
"TAX MATTERS PERSON" means the person designated as the "tax
matters person" of any REMIC Pool pursuant to Treasury Regulation Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T (or
relevant successor provision), which initially shall be the person having the
largest Percentage Interest in the Residual Certificates of the related REMIC
Pool.
"TAX RETURNS" means the federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I, REMIC II and REMIC III due to its
classification as a REMIC under the REMIC Provisions pursuant to its election
filed in accordance with Section 5.5 hereof, the federal income tax information
return on Internal Revenue Service Form 1041 U.S. Income Tax Return for Estate
and Trusts, to be filed on behalf of the grantor trust, and any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
state law.
"TERMINATION PRICE" shall have the meaning set forth in
Section 10.1(b) herein.
"TRANSFER" means any direct or indirect transfer, sale,
pledge, hypothecation, or other form of assignment of any Ownership Interest in
a Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement,
the assets which consist of all the assets of REMIC I, REMIC II and REMIC III
and of the grantor trust.
"TRUST FUND" means, collectively, all of the assets of the
Trust.
"TRUSTEE" means LaSalle Bank National Association, as Trustee,
or its successor-in-interest, or if any successor trustee or any co-trustee
shall be appointed as herein provided, then Trustee shall also mean such
successor trustee (subject to Section 7.7 hereof) and such co-trustee (subject
to Section 7.9 hereof), as the case may be.
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"TRUSTEE FEE" means, with respect to each Mortgage Loan
(including without limitation each REO Mortgage Loan), the fee designated as
such and payable to the Trustee pursuant to Section 7.12, calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"TRUSTEE FEE RATE" means 0.0024% per annum.
"UCC FINANCING STATEMENT" means a financing statement executed
and filed pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or, in the case of Louisiana, the comparable provisions of
Louisiana law.
"UNCERTIFICATED ACCRUED INTEREST" shall mean, with respect to
any class of uncertificated REMIC I Regular Interests or REMIC II Regular
Interests for any Distribution Date, the product of the Uncertificated Principal
Balance of such class as of the close of the preceding Distribution Date (or, in
the case of the first Distribution Date, as of the Closing Date) and one-twelfth
of the applicable REMIC I Remittance Rate or REMIC II Remittance Rate. The
Uncertificated Accrued Interest in respect of each class of REMIC I Regular
Interests and REMIC II Regular Interests shall accrue on the basis of a 360-day
year consisting of twelve 30-day months.
"UNCERTIFICATED DISTRIBUTABLE INTEREST" means, with respect to
any REMIC I Regular Interest or REMIC II Regular Interest for any Distribution
Date, an amount equal to: (a) the Uncertificated Accrued Interest in respect of
such REMIC I Regular Interest or REMIC II Regular Interest, as the case may be,
for such Distribution Date; reduced (to not less than zero) by (b) the portion
of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date
allocated to such REMIC I Regular Interest or REMIC II Regular Interest, as the
case may be, as set forth below; and increased by (c) any Uncertificated
Distributable Interest in respect of such REMIC I Regular Interest or REMIC II
Regular Interest, as the case may be, for the immediately preceding Distribution
Date that was not deemed paid on the immediately preceding Distribution Date
pursuant to Section 6.2 or 6.3, as applicable, together with one month's
interest (calculated on the basis of a 360-day year consisting of twelve 30-day
months) on such unpaid Uncertificated Distributable Interest at the REMIC I
Remittance Rate or the REMIC II Remittance Rate, as the case may be, applicable
to such REMIC I Regular Interest or REMIC II Regular Interest, as the case may
be, for the current Distribution Date. The Net Aggregate Prepayment Interest
Shortfall for any Distribution Date shall be allocated: (i) among the respective
REMIC I Regular Interests, pro rata in accordance with the respective amounts of
Uncertificated Accrued Interest with respect thereto for such Distribution Date;
and (ii) among the respective REMIC II Regular Interests, pro rata in accordance
with the respective amounts of Uncertificated Accrued Interest with respect
thereto for such Distribution Date.
"UNCERTIFICATED PRINCIPAL BALANCE" means the principal amount
of any REMIC I Regular Interest or REMIC II Regular Interest outstanding as of
any date of determination. As of the Closing Date, the Uncertificated Principal
Balance of each REMIC I Regular Interest shall equal the Cut-off Date Principal
Balance of the related Mortgage Loan. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC I Regular Interest shall be
reduced by all distributions of principal deemed to have been made thereon on
such Distribution Date pursuant to Section 6.2 and, if and to the extent
appropriate, shall be further reduced on such Distribution Date as provided in
Section 6.5. As of the Closing Date, the Uncertificated Principal Balance of
each REMIC II Regular Interest shall equal the amount set forth in the
Preliminary Statement hereto as its initial Uncertificated Principal Balance. On
each Distribution Date, the Uncertificated Principal Balance of each REMIC II
Regular Interest shall be reduced by all distributions of principal deemed to
have been made thereon on such Distribution Date
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pursuant to Section 6.3 and, if and to the extent appropriate, shall be further
reduced on such Distribution Date as provided in Section 6.5.
"UNDERWRITABLE CASH FLOW" means, with respect to any Mortgaged
Property or REO Property, for any twelve month period (or such shorter period
calculated on an annualized basis), the underwritable cash flow amount
calculated in accordance with Exhibit H-1 hereto.
"UNDERWRITERS" means Prudential Securities Incorporated or its
successor in interest and Morgan Stanley & Co. Incorporated or its successor in
interest.
"UNINSURED CAUSE" means any cause of damage to property
subject to a Mortgage such that the complete restoration of such property is not
fully reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 8.5.
"UNITED STATES PERSON" means 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
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States or a trust subject to the control of a United States person and
the primary supervision of a United States court.
"UNLEGENDED DEFINITIVE CERTIFICATE" means a Definitive
Certificate that does not bear the Securities Legend.
"USPAP" means the Uniform Standards of Professional Appraisal
Practices.
"VOTING RIGHTS" means the voting rights to which the
Certificateholders are entitled hereunder. At all times during the term of this
Agreement, 99% of the Voting Rights shall be allocated among the Holders of the
various outstanding Classes of Principal Balance Certificates in proportion to
the respective Class Principal Balances of their Certificates, and 1% of the
Voting Rights shall be allocated to the Holders of the Interest Only
Certificates. No Voting Rights shall be allocated to the Holders of the
respective Classes of the Residual Certificates. Voting Rights allocated to a
Class of Certificateholders shall be allocated among Certificateholders of such
Class in proportion to the Percentage Interests evidenced by their respective
Certificates. The Certificate Principal Balance of each of the Certificates will
be notionally reduced (solely for purposes of determining the Voting Rights of
the related Classes) on any Distribution Date to the extent of any Appraisal
Reduction allocated to such Class on such Distribution Date.
"WATCH LIST": A report substantially containing the content
described in Exhibit H-6 attached hereto, setting forth, among other things, any
Mortgage Loan that is in jeopardy of becoming a Specially Serviced Mortgage Loan
prepared in accordance with Section 8.14(j).
"WEIGHTED AVERAGE REMIC I REMITTANCE RATE" means, with respect
to each Distribution Date, the weighted average of the REMIC I Remittance Rates
for the REMIC I Regular Interests, weighted on the basis of the Uncertificated
Principal Balances of the REMIC I Regular Interest related to each Mortgage Loan
at the beginning of the related Collection Period (disregarding any REMIC I
Regular Interest with respect to which a Principal Prepayment in full was
received during the Collection Period on the Mortgage Loan to which such REMIC I
Regular Interest relates).
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"WITHHELD AMOUNT": With respect to (a) each Distribution Date
occurring in (i) January of each calendar year that is not a leap year and (ii)
February of each calendar year, an amount equal to one day's interest at the
Mortgage Rate (less the Master Servicing Fee Rate and the Trustee Fee Rate) as
of the Due Date on the respective Stated Principal Balance of each Interest
Reserve Loan, to the extent that a Monthly Payment or a P&I Advance is made in
respect thereof.
"WORKOUT FEE" means, with respect to each Corrected Mortgage
Loan, the fee designated as such and payable to the Special Servicer pursuant to
Section 8.10(b).
"WORKOUT FEE RATE" means, with respect to each Corrected
Mortgage Loan as to which a Workout Fee is payable, 1.0% per annum.
"YIELD MAINTENANCE CHARGES" means an amount payable upon the
prepayment of a Mortgage Loan generally equal to the greater of (1) a specified
prepayment premium or (2) the present value, as of the date of such prepayment,
of certain payments under the Mortgage Note, determined by discounting such
payments at a specific rate set forth in the Mortgage Note.
SECTION 1.2. CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE
POOL.
(a) All amounts collected in respect of any group of
related Cross-Collateralized Mortgage Loans (other than REO Mortgage Loans) in
the form of payments from Mortgagors, Insurance Proceeds, Condemnation Proceeds
and Liquidation Proceeds, shall be applied by the Master Servicer among such
Mortgage Loans in accordance with the express provisions of the related loan
documents and, in the absence of such express provisions, on a pro rata basis in
accordance with the respective amounts then "due and owing" as to each such
Mortgage Loan. All amounts collected in respect of any Mortgage Loan (whether or
not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) other than an
REO Mortgage Loan, in the form of payments from Mortgagors, Condemnation
Proceeds, Insurance Proceeds, Liquidation Proceeds, Repurchase Proceeds or
payments of Substitution Shortfall Amounts shall be applied to amounts due and
owing under the related Mortgage Note and Mortgage (including, without
limitation, for principal and accrued and unpaid interest) in accordance with
the express provisions of the related Mortgage Note and Mortgage and, in the
absence of, or to the extent not covered by, such express provisions, shall be
applied for purposes of this Agreement: first, as a recovery of any related
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest at the related Mortgage
Rate on such Mortgage Loan to but not including, as appropriate, the date of
receipt or, in the case of a full Monthly Payment from any Mortgagor, the
related Due Date, third, as a recovery of principal of such Mortgage Loan then
due and owing, including, without limitation, by reason of acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, as a recovery of Reserve Funds to the
extent then required to be held in escrow; sixth, as a recovery of any Yield
Maintenance Charge or Prepayment Premium then due and owing under such Mortgage
Loan; seventh, as a recovery of any Penalty 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; and
tenth, as a recovery of any remaining principal of such Mortgage Loan to the
extent of its entire remaining unpaid principal balance. Notwithstanding the
foregoing, any interest collected on a Anticipated Repayment Date Loan
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that constitutes Excess Interest shall be applied to the grantor trust only
after the payment of all principal and interest then due and owing on such
Mortgage Loan.
(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 unreimbursed Servicing Advances; second, as
a recovery of accrued and unpaid interest on the related REO Mortgage Loan at
the related Mortgage Rate to but not including the Due Date in the Collection
Period of receipt; third, as a recovery of principal of the related REO Mortgage
Loan to the extent of its entire unpaid principal balance; and fourth, as a
recovery of any other amounts deemed to be due and owing in respect of the
related REO Mortgage Loan.
(c) The foregoing applications of amounts received in
respect of any Mortgage Loan or REO Property shall be determined by the Master
Servicer.
SECTION 1.3. INTERPRETATION.
(a) As used herein and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in Section 1.1 shall have the respective meanings given to them under
United States generally accepted accounting principles or regulatory accounting
principles, as applicable.
(b) The words "hereof", "herein" and "hereunder", and
words of similar import when used in this Agreement, shall refer to this
agreement as a whole and not to any particular provision of this Agreement, and
references to Sections, Schedules and Exhibits contained in this Agreement are
references to Sections, Schedules and Exhibits in or to this Agreement unless
otherwise specified.
(c) Whenever a term is defined herein, the definition
ascribed to such term shall be equally applicable to both the singular and
plural forms of such term and to masculine, feminine and neuter genders of such
term.
(d) This Agreement is the result of arm's-length
negotiations between the parties and has been reviewed by each party hereto and
its counsel. Each party agrees that any ambiguity in this Agreement shall not be
interpreted against the party drafting the particular clause which is in
question.
ARTICLE II.
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
SECTION 2.1. CONVEYANCE OF MORTGAGE LOANS.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby assign to the Trustee without recourse for the
benefit of the Certificateholders all the right, title and interest of the
Depositor, including any security interest therein for the benefit of the
Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage
Loan Schedule, (ii) Sections 2, 3, 6, 7 and 9 of each Mortgage Loan Purchase
Agreement and (iii) all other assets included or to be included in REMIC I (as
described in Section 12.1(a) hereof and the definition of REMIC I) or in the
grantor trust (as described in Section 12.1(b) hereof). Such assignment includes
all interest and principal received or
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receivable on or with respect to the Mortgage Loans (other than payments of
principal and interest due and payable on the Mortgage Loans on or before the
Cut-off Date). The transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and, notwithstanding Section 13.12, is
intended by the parties to constitute a sale. Notwithstanding the foregoing, the
parties hereto acknowledge that the Depositor and the Master Servicer are
entering into an agreement on the Closing Date under which the Master Servicer
is purchasing the right to service the Mortgage Loans in accordance with this
Agreement for the consideration set forth therein.
(b) In connection with the Depositor's assignment
pursuant to Section 2.1(a) above, the Depositor shall direct, and hereby
represents and warrants that it has directed, each Seller pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby (with a copy to the Master Servicer), on or before the Closing
Date, the Mortgage File for each Mortgage Loan so assigned. If a Seller cannot
so deliver, or cause to be delivered, as to any of its Mortgage Loans, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iv), (viii), (xi)(A), (xi)(B) and (xii) of the definition of
"Mortgage File", with (if appropriate) evidence of recording or filing, as the
case may be, thereon, solely because of a delay caused by the public recording
or filing office where such document or instrument has been delivered for
recordation or filing, the delivery requirements of this Section 2.1(b) shall be
deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that such Seller has delivered to the Trustee on or before the Closing Date a
copy of such document or instrument (without evidence of recording or filing
thereon, but certified (which certificate may relate to multiple documents
and/or instruments) by such Seller to be a true and complete copy of the
original thereof submitted for recording or filing, as the case may be), and the
Seller shall deliver to or at the direction of the Trustee, promptly following
the receipt thereof, the original of such missing document or instrument (or a
copy thereof) with (if appropriate) evidence of recording or filing, as the case
may be, thereon. If a Seller cannot so deliver, or cause to be delivered, as to
any of its Mortgage Loans, the original or a copy of the related lender's title
insurance policy referred to in clause (ix) of the definition of "Mortgage File"
solely because such policy has not yet been issued, the delivery requirements of
this Section 2.1(b) shall be deemed to be satisfied as to such missing item, and
such missing item shall be deemed to have been included in the related Mortgage
File, provided that such Seller has delivered to the Trustee on or before the
Closing Date a "pro forma" title insurance policy or a commitment for title
insurance "marked-up" at the closing of such Mortgage Loan, and such Seller
shall deliver to or at the direction of the Trustee, promptly following the
receipt thereof, the original related lender's title insurance policy (or a copy
thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any group of related
Cross-Collateralized Mortgage Loans only one original of any document referred
to in the definition of "Mortgage File" covering all the Mortgage Loans in such
group, then the inclusion of the original of such document in the Mortgage File
for any of the Mortgage Loans in such group shall be deemed an inclusion of such
original in the Mortgage File for each such Mortgage Loan. None of the Trustee,
any Custodian, the Master Servicer or the Special Servicer shall be liable for
any failure by any Seller or the Depositor to comply with the document delivery
requirements of the Mortgage Loan Purchase Agreements and this Section 2.1(b).
If any Mortgage File contains an original letter of credit,
the Trustee or Custodian shall hold such 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. The
Depositor shall use its best efforts, in accordance with the terms of such
letter of credit, to cause the Trustee to become the beneficiary of any letter
of credit that secures a Mortgage Loan.
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Notwithstanding the foregoing, the failure to deliver the
originals or copies of any of the documents or instruments referred to in
clauses (ii), (iv), (viii), (ix), (xi)(A), (xi)(B) and (xii) of the definition
of "Mortgage File" shall constitute a Material Defect in respect of the related
Mortgage Loan under Section 2.3 hereof if not delivered within 120 days
following the Closing Date (or within such longer period after the Closing Date
as the Trustee may consent to, which consent shall not be unreasonably withheld
so long as the Seller has provided the Trustee with evidence of such recording
or filing, as the case may be, or has certified to the Trustee in writing as to
the occurrence of such recording or filing, as the case may be, and is, as
certified to the Trustee no less often than quarterly, in good faith attempting
to obtain from the appropriate county recorder's or filing office such original
or copy).
If any of the endorsements referred to in clause (i) of the
definition of "Mortgage File", or any of the assignments referred to in clauses
(iii), (v), (vii), (x)(B) and (xi)(B) of the definition of "Mortgage File", are
delivered to the Trustee in blank, the Trustee shall be responsible for
completing the related endorsement or assignment in the name of the Trustee (in
such capacity).
(c) The Trustee shall, as to each Mortgage Loan, at the
expense of the related Seller, promptly (and in any event within 75 days after
the later of (i) the Closing Date (or, in the case of a Replacement Mortgage
Loan substituted as contemplated in Section 2.3, 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), cause to be submitted
for recording or filing, as the case may be, in the appropriate public office
for real property records or UCC Financing Statements, as appropriate, each
assignment to the Trustee referred to in clauses (iii), (v), (vii)(to the extent
the related security agreement was recorded), (x)(B)(to the extent the related
guaranty was recorded) and (xi)(B) of the definition of "Mortgage File", to the
extent delivered to the Trustee. Each such assignment shall reflect that it
should be returned by the public recording office to the Trustee or its designee
following recording or filing (and the Trustee shall deliver a copy thereof to
the Master Servicer); provided that in those instances where the public
recording office retains the original assignment of Mortgage, assignment of
Assignment of Leases, or assignment of security agreement the Trustee shall
obtain therefrom at the expense of the related Seller 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 promptly prepare and file or record or cause to be prepared and
filed or recorded, a substitute therefor or cure such defect, as the case may
be, at the expense of the related Seller.
(d) All documents and records in the possession of the
Depositor or the Sellers that relate to the Mortgage Loans and that are not
required to be a part of a Mortgage File in accordance with the definition
thereof, together with all Escrow Payments and Reserve Funds in the possession
of the Depositor or the Sellers with respect to the Mortgage Loans, shall be
delivered to the Master Servicer on or before the Closing Date and shall be held
by the Master Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(e) In connection with the Depositor's assignment
pursuant to Section 2.1(a) above, the Depositor shall deliver to the Trustee and
the Master Servicer on or before the Closing Date a copy of a fully executed
counterpart of each Mortgage Loan Purchase Agreement, as in full force and
effect on the Closing Date.
(f) The Depositor shall, as to each Mortgage Loan that is
secured by the interest of the related Mortgagor under a ground lease, at its
own expense, promptly (and in any event within 45 days of the Closing Date)
notify the related ground lessor of the transfer of such Mortgage Loan to the
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Trust Fund pursuant to this Agreement and inform such ground lessor that any
notices of default under the related ground lease should thereafter be forwarded
to the Master Servicer.
SECTION 2.2. ACCEPTANCE BY TRUSTEE. The Trustee will hold (i)
the documents constituting a part of the Mortgage Files delivered to it, (ii)
the other REMIC I assets, (iii) the REMIC II assets and (iv) the REMIC III
assets, in each case, in trust for the use and benefit of all present and future
Certificateholders, and will hold the grantor trust assets for the use and
benefit of present and future Class N Certificateholders.
Upon execution and delivery of this Agreement in respect of
the Initial Certification, and within 75 days after the execution and delivery
of this Agreement in respect of the Final Certification, the Trustee shall
examine the Mortgage Files in its possession, and shall deliver to the
Depositor, the Master Servicer, the Special Servicer and each Seller a
certification (the "INITIAL CERTIFICATION" and the "FINAL CERTIFICATION",
respectively, in the respective forms set forth as Exhibit B-1 and Exhibit B-2
hereto) stating, (i) in the case of the Initial Certification, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in the schedule of exceptions to Mortgage File delivery attached thereto, that
(A) all documents specified in clause (i) of the definition of "Mortgage File"
are in its possession, (B) such documents have been reviewed by it and have not
been materially mutilated, damaged, defaced, torn or otherwise physically
altered, and such documents relate to such Mortgage Loan, and (C) each Mortgage
Note has been endorsed as provided in clause (i) of the definition of "Mortgage
File"; and (ii) in the case of the Final Certification, as to each Mortgage Loan
listed in the Mortgage Loan Schedule, except as may be certified in the schedule
of exceptions to Mortgage File delivery attached thereto, that (W) all documents
specified in clauses (i), (ii), (iii), (ix), (xi), (xii) (to the extent it
relates to the foregoing), (xiii) and (xvi) (to the extent it relates to the
foregoing) are in its possession, (X) all documents delivered to it or a
Custodian as part of the related Mortgage File have been reviewed by it or such
Custodian and have not been materially mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(Y) based on its examination and only as to the foregoing documents, the street
address of the Mortgaged Property (but not the zip code) and the name of the
Mortgagor set forth in the Mortgage Loan Schedule respecting such Mortgage Loan
accurately reflects the information contained in the documents in the Mortgage
File and (Z) each Mortgage Note has been endorsed and each Mortgage has been
assigned as provided in clauses (i) and (iii), respectively, of the definition
of "Mortgage File." The Trustee shall deliver to the Master Servicer, the
Special Servicer and each Seller (as to its respective Mortgage Loans only), the
Operating Adviser and the Majority Certificateholder of the Controlling Class, a
copy of such Final Certification. Within 180 days after the Cut-off Date, the
Trustee shall provide a confirmation to the Master Servicer, the Special
Servicer and each Seller of receipt or non-receipt of recorded Assignments of
Mortgage. In giving the certifications required above, the Trustee shall be
under no obligation or duty to inspect, review or examine any such documents,
instruments, securities or other papers to determine whether they or the
signatures thereon are valid, legal, genuine, enforceable, in recordable form or
appropriate for their represented purposes, or that they are other than what
they purport to be on their face, or to determine whether any Mortgage File
should include any assumption agreement, modification agreement, consolidation
agreement, extension agreement, Assignment of Lease, ground lease, UCC Financing
Statement, guaranty, written assurance, substitution agreement or letter of
credit; provided that to the extent the Depositor has notified the Trustee in
writing that any particular documents are to be included in a particular
Mortgage File, the Trustee shall confirm that such documents are included in
such Mortgage File.
The Trustee or its authorized agents shall retain possession
and custody of each Mortgage File in accordance with and subject to the terms
and conditions set forth herein.
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SECTION 2.3. SELLERS' REPURCHASE OF MORTGAGE LOANS FOR
DOCUMENT DEFECTS AND BREACHES OF REPRESENTATIONS ANDWARRANTIES.
(a) If any party hereto discovers that any document
constituting a part of a Mortgage File has a Material Defect, or discovers or
receives notice of a breach of any representation, warranty or covenant relating
to any Mortgage Loan set forth in the related Mortgage Loan Purchase Agreement,
as the case may be, that may give rise to a repurchase obligation on the part of
the related Seller (a "BREACH"), such party shall give prompt written notice to
the other parties hereto. Promptly upon discovering or receiving notice of any
such Material Defect or Breach, the Trustee shall request that the related
Seller within the time period provided for in the related Mortgage Loan Purchase
Agreement cure such Material Defect or Breach, as the case may be, in all
material respects or repurchase the affected Mortgage Loan for a cash amount
equal to the applicable Purchase Price, all in accordance with the related
Mortgage Loan Purchase Agreement; provided, however, that, in lieu of effecting
any such repurchase, a Seller will be permitted to deliver a Qualifying
Substitute Mortgage Loan and to pay a cash amount equal to the applicable
Substitution Shortfall Amount, subject to the terms and conditions of the
related Mortgage Loan Purchase Agreement and this Agreement.
A document in the Mortgage File shall be deemed to have a
"MATERIAL DEFECT" if (a) any document required to be included in the Mortgage
File is not in the Trustee's possession within the time required to be
delivered, (b) such document has been mutilated, damaged, defaced, torn or
otherwise physically altered in any material respect at the time of its delivery
to the Trustee, (c) the information referred to in clause (Y) of Section 2.2
that is set forth in the Mortgage Loan Schedule respecting such Mortgage Loan
differs from the information contained in the documents in the Mortgage File, or
(d) the related Mortgage Note has not been endorsed or the related Mortgage has
not been assigned, or the related assignment of Mortgage has not been delivered
as provided in Section 2.1 hereof. Nothing contained herein shall be construed
to obligate the Trustee to review any Mortgage File, or any part thereof, except
as required by Section 2.2 hereof.
As to any Qualifying Substitute Mortgage Loan, the Trustee
shall direct the related Seller to deliver to the Trustee for such Qualifying
Substitute Mortgage Loan (with a copy to the Master Servicer), the related
Mortgage File with the related Mortgage Note endorsed as required by clause (i)
of the definition of "Mortgage File." No substitution may be made in any
calendar month after the Determination Date for such month. Monthly Payments due
with respect to Qualifying Substitute Mortgage Loans after the related date of
substitution, and Monthly Payments due with respect to Deleted Mortgage Loans
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 Qualifying
Substitute Mortgage Loans on or prior to the related date of substitution, and
Monthly Payments due with respect to Deleted Mortgage Loans after the related
date of substitution, shall not be part of the Trust Fund and will be remitted
by the Master Servicer to the related Seller promptly following receipt.
In any month in which a Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Special Servicer will determine the applicable Substitution Shortfall Amount.
The Trustee shall direct such Seller to deposit cash equal to such amount into
the Collection Account concurrently with the delivery of the Mortgage File for
the Qualifying Substitute Mortgage Loan, without any reimbursement thereof. The
Master Servicer shall give written notice to the Trustee of such deposit
promptly following the occurrence thereof.
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If the affected Mortgage Loan is to be repurchased, the
Trustee shall designate the Collection Account as the account to which funds in
the amount of the Purchase Price are to be wired. Any such purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
The Trustee shall direct the related Seller to amend the
Mortgage Loan Schedule to reflect the removal of each Deleted Mortgage Loan and,
if applicable, the substitution of the Qualifying Substitute Mortgage Loan; and,
upon such amendment, the Trustee shall deliver or cause the delivery of such
amended Mortgage Loan Schedule to the other parties hereto. Upon any such
substitution, the Qualifying Substitute Mortgage Loan shall be subject to the
terms of this Agreement in all respects.
(b) In connection with any repurchase of or substitution
for a Mortgage Loan contemplated by this Section 2.3, the Trustee, the Master
Servicer and the Special Servicer shall each promptly tender to the related
Seller (on a servicing released basis), upon delivery to each of them of a
receipt executed by such Seller, all portions of the Mortgage File and other
documents pertaining to such Mortgage Loan possessed by it, and each document
that constitutes a part of the Mortgage File shall be endorsed or assigned by
the Trustee (or the Master Servicer on behalf of the Trustee) to the extent
necessary or appropriate to the related Seller, or its designee in the same
manner, and pursuant to appropriate forms of assignment (to be provided by the
Master Servicer), substantially similar to the manner and forms pursuant to
which documents were previously assigned to the Trustee, but in any event,
without recourse, representation or warranty; provided that such tender by the
Trustee shall be conditioned upon its receipt from the Master Servicer of a
Request for Release.
(c) The Mortgage Loan Purchase Agreements provide the
sole remedies available to the Certificateholders, or the Trustee on behalf of
the Certificateholders, respecting any Material Defect or Breach.
SECTION 2.4. REPRESENTATIONS AND WARRANTIES. The Depositor
hereby represents and warrants to the Master Servicer, the Special Servicer, the
Fiscal Agent and the Trustee as of the Closing Date that:
(i) The Depositor is a corporation duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to
own its property, to carry on its business as presently conducted, to
enter into and perform its obligations under this Agreement, and to
create the trust pursuant hereto;
(ii) The execution and delivery by the Depositor of
this Agreement have been duly authorized by all necessary corporate
action on the part of the Depositor; neither the execution and delivery
of this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, (A) any
of the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on the Depositor or its properties; (B) the
certificate of incorporation or bylaws of the Depositor; or (C) the
terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor
any of its Affiliates is a party to, bound by, or in breach of 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 or to the
best knowledge of the Depositor may in the future materially and
adversely affect (X) the ability of the Depositor to perform its
obligations under this Agreement or (Y) the business, operations,
financial condition, properties or assets of the Depositor;
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(iii) The execution, delivery and performance by the
Depositor of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected
or taken prior to the Closing Date;
(iv) This Agreement has been duly executed and
delivered by the Depositor and, assuming due authorization, execution
and delivery by the other parties hereto, constitutes a valid and
binding obligation of the Depositor enforceable against it in
accordance with its terms;
(v) There are no actions, suits or proceedings
pending or, to the best of the Depositor's knowledge, threatened or
likely to be asserted against or affecting the Depositor, before or by
any court, administrative agency, arbitrator or governmental body (A)
with respect to any of the transactions contemplated by this Agreement
or (B) with respect to any other matter that in the judgment of the
Depositor will be determined adversely to the Depositor and will, if
determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or
otherwise, or adversely affect its ability to perform its obligations
under this Agreement; and
(vi) Immediately prior to the consummation of the
transactions contemplated in this Agreement, the Depositor had good
title to and was the sole owner of each Mortgage Loan free and clear of
any and all adverse claims, charges or security interests.
SECTION 2.5. CONVEYANCE OF INTERESTS. Concurrently with the
execution and delivery of this Agreement, the Depositor does hereby transfer,
assign, set over, deposit with and otherwise convey to the Trustee, without
recourse, in trust, all the right, title and interest of the Depositor in and to
(i) the REMIC I Regular Interests in exchange for the REMIC II Interests, (ii)
the REMIC II Regular Interests in exchange for the REMIC III Certificates, and
(iii) the assets of the grantor trust in exchange for the 100% beneficial
ownership interest therein represented by the Class N Certificates.
ARTICLE III.
THE CERTIFICATES
SECTION 3.1. THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms
set forth in Exhibits A-1 through A-16 hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable judgment of the Trustee or the
Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be determined
by the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the
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rules of any securities exchange on which any of the Certificates may be listed,
all as determined by the officers executing such Certificates, as evidenced by
their execution thereof.
(b) The Certificates will be issued in minimum
denominations of (i) $25,000 initial Certificate Principal Balance, in the case
of the Class A-1 and Class A-2 Certificates, (ii) $50,000 initial Certificate
Principal Balance, in the case of the Class B Certificates, and (iii) $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, in the case of the remaining Classes of Certificates (other than the
Residual Certificates), and in each case in integral multiples of $1 in excess
thereof. The Residual Certificates will be issued in minimum Percentage
Interests of not less than 10%.
(c) Each Certificate shall be authenticated by the
Trustee or the Authenticating Agent upon the order of the Depositor. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certification of
authentication substantially in the form provided for herein, executed by an
authorized officer of the Trustee or the Authenticating Agent, if any, by manual
signature, and such certification 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. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Trustee for authentication, and the Trustee or the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, and deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the REMIC III Regular
Certificates, on the Closing Date the Trustee or the Authenticating Agent upon
the order of the Depositor shall authenticate Definitive Certificates that are
issued to a Clearing Agency or its nominee as provided in Section 3.6 against
payment of the purchase price thereof in exchange for book-entry credit to the
Depositor's account.
SECTION 3.2. REGISTRATION. The Trustee initially shall be the
registrar (the "CERTIFICATE REGISTRAR") in respect of the Certificates who shall
maintain books for the registration and for the transfer of Certificates (the
"CERTIFICATE REGISTER"). The Certificate Registrar may resign or be discharged
or removed by the Trustee or the Certificateholders, and a new successor may be
appointed, in accordance with the procedures and requirements set forth in
Sections 7.6 and 7.7 hereof with respect to the resignation, discharge or
removal of the Trustee and the appointment of a successor trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Trustee, any trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
SECTION 3.3. TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder
thereof only upon presentation and surrender of such Certificate at the
Corporate Trust Office (or the New York Presenting Office, if any) duly endorsed
or accompanied by a written instrument of transfer duly executed by such Holder
or such Holder's duly authorized attorney in such form as shall be satisfactory
to the Certificate Registrar. Upon the transfer of any Certificate in accordance
with the preceding sentence, and subject to the restrictions set forth in the
other subsections of this Section 3.3, the Trustee shall execute, and the
Trustee or any Authenticating Agent shall authenticate and deliver to the
transferee, one or more new Certificates of the same Class, in authorized
denominations, and evidencing, in the aggregate, the same
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aggregate Certificate Principal Balance, Certificate Notional Amount or
Percentage Interest, as the case may be, as the Certificate being transferred.
No service charge shall be made to a Certificateholder for any registration of
transfer of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration or transfer of Certificates. The Trustee may
decline to accept any request for a registration of transfer of any Certificate
during the period beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof
for any number of new Certificates of the same Class, in authorized
denominations, representing in the aggregate the same aggregate Certificate
Principal Balance, Certificate Notional Amount or Percentage Interest, as the
case may be, as the Certificate surrendered, upon surrender of the Certificate
to be exchanged at the Corporate Trust Office (or the New York Presenting
Office, if any) duly endorsed or accompanied by a written instrument of exchange
duly executed by such Holder or such Holder's duly authorized attorney in such
form as is satisfactory to the Certificate Registrar. Certificates delivered
upon any such exchange will evidence the same obligations, and will be entitled
to the same rights and privileges, as the Certificates surrendered. No service
charge shall be made to a Certificateholder for any exchange of Certificates,
but the Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
exchange of Certificates. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute and the Trustee or the Authenticating Agent
shall authenticate, date and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive.
(c) All Definitive Certificates that are Privately
Offered Certificates shall initially be Legended Definitive Certificates. By
acceptance of a Legended Definitive Certificate, whether upon original issuance
or subsequent transfer, each Holder of such a Certificate acknowledges the
restrictions on the transfer of such Certificate set forth in the Securities
Legend and agrees that it will transfer such a Certificate only as provided
herein.
The Securities Legend shall appear on the face of the Legended
Definitive Certificates as follows:
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A)(1) TO A BUYER THAT THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3)
TO A BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) or
(7) OF REGULATION D OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION.
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A transferee shall only be able to take delivery of an
Unlegended Definitive Certificate that is a Privately Offered Certificate if and
after the Depositor submits to the Trustee an Opinion of Counsel of the
Depositor stating that the Securities Legend is not required on such Definitive
Certificate by applicable law. Upon the Depositor submitting such Opinion of
Counsel to the Trustee, the Holder of such Certificate may submit such
Certificate to the Trustee to exchange such Certificate for an Unlegended
Definitive Certificate, which is to be provided by the Depositor, and the
Trustee shall satisfy such request notwithstanding anything else herein to the
contrary, and delivery permitted herein of a Legended Definitive Certificate may
be made in the form of an Unlegended Definitive Certificate.
Except as described below in Sections 3.3(d), 3.3(e) and
3.3(f), no restrictions to transfer shall apply to the transfer or registration
of transfer of an Unlegended Definitive Certificate to a transferee that takes
delivery in the form of an Unlegended Definitive Certificate.
(d) (i) No transfer of a Senior Certificate shall be made
unless in accordance with the prohibited transaction rules of ERISA and
Section 4975 of the Code and the terms of the Exemption as described in
the Prospectus Supplement under "ERISA Considerations". No employee
benefit plan or other plan that is subject to ERISA or Section 4975 of
the Code (each, a "PLAN") as to which the Initial Purchaser, the
Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent,
the Operating Adviser or the Trustee is a party in interest or
disqualified person, and no QIB acting on behalf of or with "plan
assets" of any such Plan, may acquire such Certificates unless pursuant
to a statutory exemption or any of the administrative exemptions issued
by the U.S. Department of Labor, such that the acquisition and holding
of Senior Certificates by, on behalf of or with "plan assets" of such
Plan would not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code by reason of the
application of one or more of the statutory or administrative
exemptions from the prohibited transaction rules described in the
Memorandum.
(ii) No transfer of a Subordinate Certificate shall
be made unless the acquirer (i) is not a Plan and is not using "plan
assets" of any Plan to acquire such Certificates, or (ii) is an
insurance company investing solely assets of its general account and
such purchase and holding of such Certificates will not result in a
non-exempt prohibited transaction under ERISA or Section 4975 of the
Code.
(e) No transfer, sale, pledge or other disposition of any
Privately Offered 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 Privately Offered Certificate
held as a Definitive 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 Privately Offered Certificate by the
Depositor or one of its 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 D-1 hereto
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as Exhibit
D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the Trustee to the
effect that such transfer shall be made without registration under the
Securities Act, 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 (such Opinion of Counsel shall not be an expense of
the Trust or of the Depositor, the Master Servicer, the Special
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Servicer, the Trustee, the Fiscal Agent or the Certificate Registrar in their
respective capacities as such). If a transfer of any interest in a Privately
Offered Certificate that constitutes a Book-Entry 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 any interest in such
Privately Offered Certificate by the Depositor or any of its Affiliates), then
the Certificate Owner desiring to effect such transfer shall be required to
obtain either (i) a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached as Exhibit D-3A hereto or as
Exhibit D-3B hereto, or (ii) an Opinion of Counsel to the effect that such
transfer may be made without registration under the Securities Act. None of the
Depositor, the Trustee, the Master Servicer, the Special Servicer or the
Certificate Registrar is obligated to register or qualify any Class of Privately
Offered 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 qualification. Any Certificateholder or Certificate Owner
desiring to effect a transfer of Privately Offered Certificates or interests
therein shall, and does hereby agree to, indemnify the Trust, the Depositor, the
Underwriter, the Trustee, the Fiscal Agent, the Master Servicer, the Special
Servicer and the Certificate Registrar against any liability that may result if
the transfer is not exempt from such registration or qualification or is not
made in accordance with such federal and state laws.
(f) (i) No Residual Certificate may be held or
beneficially owned by a Disqualified Organization. The Residual
Certificates shall not be held or beneficially owned by a non-United
States Person. Prior to the registration of any transfer, sale, pledge
or other disposition of a Residual Certificate, the proposed transferee
shall provide to the Trustee a Transfer Affidavit and Agreement in
substantially the form set forth in Exhibit F, to the effect that such
transferee (1) agrees to be bound by the terms of this Agreement and
any restrictions set forth on the face of such Residual Certificate, as
the case may be, and (2) is not a Disqualified Organization or a
non-United States Person and will not hold such Residual Certificate on
behalf of a Disqualified Organization or non-United States Person, and
will promptly notify the Trustee of any change or impending change in
its status as such. The transferor of the Residual Certificate shall
also provide the Trustee with a Transferor Certificate substantially in
the form of Exhibit E.
(ii) In addition, any transfer, sale, pledge or other
disposition of any such Certificate to a Pass-Through Entity shall not
be registered (to the extent the Certificate Registrar has actual
knowledge that the transferee is a Pass-Through Entity), unless the
proposed transferee shall have agreed in writing, in such form as the
Trustee may require, to provide to the Trustee such information as the
Trustee may reasonably require concerning any record interest holder or
principal of such Pass-Through Entity who is or was a Disqualified
Organization. Any Holder of a Residual Certificate, by its acceptance
thereof, shall be deemed for all purposes to have consented to the
provisions of this Section 3.3(f).
(iii) The restrictions described in this Section
3.3(f) shall not apply to a transfer of any such Certificate if the
Trustee has received an Opinion of Counsel to the effect that the
restrictions described in this Section 3.3(f) are not necessary to
avoid the imposition of tax on a REMIC or the disqualification of any
REMIC as a REMIC under the Code.
(iv) (A) If any Disqualified Organization shall
become a Holder of a Residual Certificate, then the last-preceding
non-Disqualified Organization shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such transfer of such
Residual Certificate. If a non-United States Person shall become a
holder of a Residual Certificate, then the last-preceding United States
Person shall be
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restored, to the extent permitted by law, to all rights and obligations
as Holder thereof retroactive to the date of registration of such
transfer of such Residual Certificate. If a transfer of a Residual
Certificate is disregarded pursuant to the provisions of Treasury
Regulations Section 1.860E-1 or Section 1.860G-3, then the
last-preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such transfer of such
Residual Certificate. The Trustee shall be under no liability to any
Person for any registration of transfer of a Residual Certificate that
is in fact not permitted by this Section 3.3(f) or for making any
payments due on such Certificate to the holder thereof or for taking
any other action with respect to such holder under the provisions of
this Agreement.
(B) If any purported transferee shall become a Holder
of a Residual Certificate in violation of the restrictions in this
Section 3.3(f) and to the extent that the retroactive restoration of
the rights of the Holder of such Residual Certificate as described in
clause (iv)(A) above shall be invalid, illegal or unenforceable, then
the Trustee shall have the right, without notice to the holder or any
prior holder of such Residual Certificate, to sell such Residual
Certificate to a purchaser selected by the Trustee on such terms as the
Trustee may choose. Such purported transferee shall promptly endorse
and deliver each Residual Certificate in accordance with the
instructions of the Trustee. Such purchaser may be the Trustee itself
or any Affiliate of the Trustee. The proceeds of such sale, net of the
commissions (which may include commissions payable to the Trustee or
its Affiliates), expenses and taxes due, if any, will be remitted by
the Trustee to such purported transferee. The terms and conditions of
any sale under this clause (iv)(B) shall be determined in the sole
discretion of the Trustee, and the Trustee shall not be liable to any
Person having an ownership interest in a Residual Certificate as a
result of its exercise of such discretion.
(v) Trustee shall make available all information
necessary to compute any tax imposed (A) as a result of the transfer of
an ownership interest in a Residual Certificate to any Person who is a
Disqualified Organization, including the information regarding "excess
inclusions" of such Residual Certificates required to be provided to
the Internal Revenue Service and certain Persons as described in
Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), 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 Certificate having as among its record
holders at any time any Person who is a Disqualified Organization.
Reasonable compensation for providing such information may be required
by the Trustee from such Person.
(g) Each investor purchasing Privately Offered
Certificates from either Underwriter will be deemed to have represented and
agreed as follows (terms used herein that are defined in Rule 144A or in
Regulation D under the Securities Act ("REGULATION D") are used herein as
defined therein):
(i) The investor understands that the Certificates
have not been registered under the Securities Act, and that if in the
future it decides to offer, resell, pledge or otherwise transfer such
Certificates within two years after the later of the original issuance
of such Certificates or the last date on which such Certificates are
held by an affiliate of the Depositor, it will do so only (i) to the
Depositor, (ii) to a person that the seller reasonably believes is a
QIB in a transaction meeting the requirements of Rule 144A, (iii)
pursuant to an exemption from registration under the Securities Act
provided by Rule 144 thereunder (if available), or (iv) in certificated
form to an Institutional Accredited Investor that delivers to the
Trustee a letter in the form of Exhibit D-2B hereto and such
certifications, legal opinions and other information as the
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Trustee may reasonably require to confirm that the proposed transfer is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act, and in
each case in accordance with any applicable securities laws of any
state of the United States or any other applicable jurisdiction.
(ii) The investor understands that the Certificates,
except for the Residual Certificates, will be issued only in the form
of Book-Entry Certificates, which will be held by the Custodian.
Purchasers of such Certificates will acquire beneficial interests in
the Book-Entry Certificates, which interests will be held directly or
indirectly through Participants.
(iii) The investor understands that Certificates will
bear a Securities Legend unless the Depositor determines otherwise
consistent with applicable law.
The Senior Certificates will also bear the following
additional legend:
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN
EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, OR ANY PERSON ACTING ON BEHALF OF SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN
OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR WITHIN THE MEANING OF
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
The Subordinate Certificates will also bear the following
legend:
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR
OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH
SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND
OWNERSHIP OF THE CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
The Residual Certificates will also bear the following
additional legend:
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
(iv) The investor is either (A) a QIB purchasing for
its own account or for the account of another QIB and it and such other
Person are aware that the sale to it is being made in reliance on Rule
144A or (B) an Institutional Accredited Investor and is purchasing the
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Certificates for its own account or for an account with respect to
which it exercises sole investment discretion.
(v) If the investor is a QIB, the investor
understands that the Certificates offered in reliance on Rule 144A will
be represented by the Book-Entry Certificates. Before any interest in
the Book-Entry Certificates may be offered, sold, pledged or otherwise
transferred to an Institutional Accredited Investor, the transferee
will be required to provide the Trustee with a Purchaser's Letter in
the form attached hereto as Exhibit D-3A as to compliance with the
transfer restrictions referred to above.
(vi) The investor will deliver to each Institutional
Accredited Investor to whom it transfers Certificates notice of any
restrictions on transfer of such Certificates.
(vii) If the investor is acquiring Senior
Certificates, it understands that, in accordance with the prohibited
transaction rules of ERISA and Section 4975 of the Code and the terms
of the Exemptions (as such term is defined and described under the
heading "ERISA CONSIDERATIONS" in the Prospectus Supplement), no Plan
as to which either Underwriter, the Depositor, the Master Servicer, the
Special Servicer, the Operating Adviser or the Trustee is a party in
interest or disqualified person, and no qualified institutional buyer
acting on behalf of or with "plan assets" of any such Plan, may acquire
such Certificates unless pursuant to a statutory exemption or any of
the administrative exemptions issued by the U.S. Department of Labor,
such that the acquisition and holding of Senior Certificates by, on
behalf of or with "plan assets" of such Plan would not constitute or
result in a non-exempt prohibited transaction under ERISA or Section
4975 of the Code by reason of the application of one or more of the
statutory or administrative exemptions from the prohibited transaction
rules described herein.
(viii) If the investor is acquiring Subordinate or
Residual Certificates, (i) it is not a Plan and is not using "plan
assets" of any Plan to acquire such Certificates and (ii) if it is an
insurance company, it is investing solely assets of its general
account, and it shall be deemed to have represented and warranted that
the purchase and holding of such Certificates will not constitute or
result in a non-exempt prohibited transaction under ERISA or Section
4975 of the Code.
(ix) If the investor is acquiring any Privately
Offered Certificate as a fiduciary or agent for one or more investor
accounts, it represents that it has sole investment discretion with
respect to such account and that it has full power to make the
acknowledgments, representations and agreements contained herein on
behalf of each such account.
(x) The investor acknowledges that the Depositor, the
Underwriters, the Trustee, the Fiscal Agent and others will rely on the
truth and accuracy of the foregoing acknowledgments, representations
and agreements, and agrees that if any of the foregoing representations
and agreements deemed to have been made by it by its purchase are no
longer accurate, it shall promptly notify the Depositor and the
Underwriters.
(xi) Each original purchaser of the Certificates will
be required to sign a Purchaser's Letter in the form attached as
Exhibit D-2A, D-2B, D-3A or D-3B hereto.
(xii) The Trustee shall have no liability to the
Trust arising from a transfer of any Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section
3.3; provided, however, that the Trustee shall not register the
transfer of a Residual
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Certificate if it has actual knowledge that the proposed transferee
does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in this Section 3.3.
SECTION 3.4. MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES. If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) except in the case of a mutilated Certificate
so surrendered, there is delivered to the Trustee such security or indemnity as
may be required by it to save it harmless, then, in the absence of notice to the
Trustee that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like tenor and interest in the Trust. In connection with the issuance of any new
Certificate under this Section 3.4, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
SECTION 3.5. PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicer,
the Special Servicer, the Fiscal Agent, the Trustee, the Operating Adviser and
any agent of the Depositor, the Master Servicer, the Special Servicer, the
Fiscal Agent, the Trustee or the Operating Adviser may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Master Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Operating Adviser nor any agent of
the Master Servicer, the Special Servicer, the Fiscal Agent, the Trustee or the
Operating Adviser shall be affected by any notice to the contrary.
SECTION 3.6. BOOK-ENTRY CERTIFICATES.
(a) Notwithstanding the foregoing, each Class of REMIC
III Regular Certificates, upon original issuance, shall be issued in the form of
one or more physical certificates (collectively, as to any Class of Book-Entry
Certificates, a "GLOBAL CERTIFICATE") representing such Class, to be delivered
to the Trustee, as custodian for The Depository Trust Company (the
"DEPOSITORY"), the initial Clearing Agency, by, or on behalf of, the Depositor.
The Global Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the Depository, as the
initial Clearing Agency, and no Certificate Owner will receive a Definitive
Certificate representing such Certificate Owner's interest in the Book-Entry
Certificates, except as provided in Section 3.8. Unless and until Definitive
Certificates have been issued to the Certificate Owners pursuant to Section 3.8:
(i) the provisions of this Section 3.6 shall be in
full force and effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the
Certificate Registrar and the Trustee may deal with the Clearing Agency
for all purposes (including the making of distributions on the
Certificates) as the authorized representative of the Certificate
Owners;
(iii) to the extent that the provisions of this
Section 3.6 conflict with any other provisions of this Agreement, the
provisions of this Section 3.6 shall control with respect to each such
Class; and
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(iv) the rights of the Certificate Owners of each
such Class shall be exercised only through the Clearing Agency and the
applicable Participants and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing
Agency, the Participants and/or the Indirect Participants. Pursuant to
the Depository Agreement, unless and until Certificates are issued in
respect of such Classes pursuant to Section 3.8, the initial Clearing
Agency will make book-entry transfers among the Participants and
receive and transmit distributions of principal and interest on the
related Certificates to such Participants.
(b) For purposes of any provision of this Agreement
requiring or permitting actions with the consent of, or at the direction of,
Holders of the Certificates evidencing a specified percentage of the aggregate
unpaid principal (and, in the case of the Class X Certificates, notional) amount
of Certificates, such direction or consent may be given in respect of such
Classes by the Clearing Agency at the direction of Certificate Owners owning
Certificates evidencing the requisite percentage of principal (and, in the case
of the Class X Certificates, notional) amount of Certificates. The Clearing
Agency may take conflicting actions with respect to the Certificates to the
extent that such actions are taken on behalf of the Certificate Owners.
SECTION 3.7. NOTICES TO CLEARING AGENCY. Whenever a notice or
other communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.8, the Trustee shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 3.8. DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners
of beneficial interests in a Class of Book-Entry Certificates or their nominees
if (i) the Depository notifies the Depositor and the Trustee in writing that the
Depository is unwilling or unable to continue as Clearing Agency for the
Book-Entry Certificates and a qualifying successor Clearing Agency is not
appointed by the Depositor within 90 days thereof, (ii) the Depositor, at its
option, elects to terminate the book-entry system through the Clearing Agency or
(iii) an Event of Default shall have occurred and is continuing and Holders of
Book-Entry Certificates entitled to at least 51% of the Voting Rights thereof
advise the Depository and the Trustee in writing that the continuation of the
book-entry system through the Depository (or a successor thereto) is no longer
in the best interest of Certificateholders. Upon notice of the occurrence of
either of the events described in the preceding sentence, the Trustee shall
notify all Certificate Owners, through the Clearing Agency, of the occurrence of
the event and of the availability of Definitive Certificates to such Certificate
Owners requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Trustee shall execute,
authenticate and deliver the Definitive Certificates. None of the Depositor, the
Fiscal Agent or the Trustee 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, all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Definitive Certificates, and the Trustee shall
recognize the Holders of Definitive Certificates as Certificateholders
hereunder.
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(b) Distributions of principal and interest on the
Definitive Certificates shall be made by the Trustee directly to holders of
Definitive Certificates in accordance with the procedures set forth in this
Agreement.
ARTICLE IV.
ADVANCES
SECTION 4.1. P&I ADVANCES BY MASTER SERVICER.
(a) On or before 1:00 p.m., New York City time, on each
P&I Advance Date, the Master Servicer shall, subject to Section 4.4, either (i)
deposit into the Distribution Account from its own funds an amount equal to the
aggregate amount of P&I Advances, if any, to be made in respect of the related
Distribution Date, (ii) apply amounts held in the 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 advanced by the Master Servicer by deposit in the
Collection Account on or before the next succeeding Determination Date (to the
extent not previously replaced through the deposit of Late Collections of the
delinquent principal and interest in respect of which such P&I Advances were
made). If, as of 3:00 p.m., New York City time, on any P&I Advance Date, the
Master Servicer shall not have made any P&I Advance required to be made on such
date pursuant to this Section 4.1(a) (and shall not have delivered to the
Trustee the requisite Officer's Certificate and documentation related to a
determination of nonrecoverability of a P&I Advance), then the Trustee shall
provide notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. (704) 593-7735 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone at telephone no. (704) 593-7820 (or such alternative number provided
by the Master Servicer to the Trustee in writing) as soon as possible, but in
any event before 5:00 p.m., New York City time, on such P&I Advance Date.
(b) The aggregate amount of P&I Advances to be made by
the Master Servicer in respect of the Mortgage Loans (including without
limitation Balloon Mortgage Loans delinquent as to their respective Balloon
Payments and REO Mortgage Loans) for any Distribution Date shall equal, subject
to Section 4.4 below, the aggregate of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments, in each case net of any related
Master Servicing Fee and Workout Fee, that were due or deemed due, as the case
may be, in respect thereof on their respective Due Dates during the related
Collection Period and that were not paid by or on behalf of the related
Mortgagors or otherwise collected as of the close of business on the twelfth day
of the month (or the immediately preceding Business Day if such twelfth day is
not a Business Day), or otherwise offset as provided in Section 4.1(a) by
amounts held in the Collection Account for future distribution to
Certificateholders; provided that, if an Appraisal Reduction has occurred (and
for so long as it exists) with respect to any Required Appraisal Loan, then, in
the event of subsequent delinquencies thereon, the amount of the P&I Advance in
respect of such Required Appraisal Loan for the related Distribution Date shall
be reduced to an amount equal to the product of (i) the amount of the P&I
Advance for such Required Appraisal Loan for such Distribution Date without
regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which is equal to the Stated Principal Balance of
such Required Appraisal Loan immediately prior to such Distribution Date, net of
the related Appraisal Reduction, if any, and the
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denominator of which is equal to the Stated Principal Balance of such Required
Appraisal Loan immediately prior to such Distribution Date. Notwithstanding the
foregoing, the Master Servicer will not be required to advance Penalty Charges,
Default Interest, Late Fees, Excess Interest or Prepayment Premiums or Yield
Maintenance Charges.
SECTION 4.2. SERVICING ADVANCES.
(a) The Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent shall each make Servicing Advances to the extent
provided in this Agreement, except to the extent that the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent determines, as applicable, in
accordance with Section 4.4 below, that any such Servicing Advance would be a
Nonrecoverable Advance. Any such determination by the Master Servicer or the
Special Servicer shall be conclusive and binding on the Trustee, the Fiscal
Agent and the Certificateholders.
(b) Notwithstanding anything to the contrary contained in
this Agreement, if the Special Servicer is required under this Agreement to make
any Servicing Advance but does not desire to do so, the Special Servicer may, in
its sole discretion, on five Business Days notice (or such lesser period as
shall be reasonably requested by the Special Servicer) request that the Master
Servicer make such Servicing Advance, such request to be made in writing and in
a timely manner that does not materially and adversely affect the interests of
any Certificateholder and to be accompanied by such additional information
regarding the circumstances surrounding such Servicing Advance as the Master
Servicer may reasonably request. Subject to the following paragraph, the Master
Servicer shall have the obligation to make any such Servicing Advance that it is
requested by the Special Servicer to make within ten (10) days of the Master
Servicer's receipt of such request, except Emergency Advances, which shall be
made by the Master Servicer within five Business Days of the request by the
Special Servicer (or such lesser period as shall be reasonably requested by the
Special Servicer). The Special Servicer shall be relieved of any obligations
with respect to a Servicing Advance that it requests the Master Servicer to make
(regardless of whether or not the Master Servicer shall make such Advance). The
Master Servicer shall be entitled to reimbursement for any Servicing Advance
made by it at the direction of the Special Servicer, together with Advance
Interest thereon, at the same time, in the same manner and to the same extent as
the Master Servicer is entitled with respect to any other Servicing Advance made
thereby.
Notwithstanding the foregoing provisions of this Section
4.2(b), the Master Servicer shall not be required to make at the Special
Servicer's direction, or to reimburse the Special Servicer for, any Servicing
Advance if the Master Servicer determines (in its good faith and reasonable
judgment) that the Servicing Advance which the Special Servicer is requesting
the Master Servicer to make or to reimburse to the Special Servicer hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer in writing of such determination.
Such notice shall not obligate the Special Servicer to make any such proposed
Servicing Advance. The Special Servicer shall promptly provide the Master
Servicer with any information that comes into its possession that constitutes
evidence that any future Advances made with respect to any Mortgage Loan or REO
Property would be Nonrecoverable Advances.
SECTION 4.3. ADVANCES BY TRUSTEE.
(a) To the extent that the Master Servicer fails to make
a P&I Advance by 11:00 a.m. New York City time on the Business Day following the
related P&I Advance Date (other than a P&I Advance that the Master Servicer
determines is a Nonrecoverable Advance), the Trustee shall make such P&I Advance
unless the Trustee determines that such P&I Advance, if made, would be a
Nonrecoverable
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Advance. To the extent that the Trustee is required hereunder to make P&I
Advances, it shall deposit the amount thereof in the Distribution Account on the
relevant Distribution Date.
(b) To the extent that the Trustee fails to make a P&I
Advance required to be made by the Trustee hereunder by 12:00 p.m., New York
City time, on any Distribution Date (other than a P&I Advance that the Trustee
determines is or would be a Nonrecoverable Advance), the Fiscal Agent will
advance such P&I Advance unless the Fiscal Agent determines that any such P&I
Advance, if made, would be a Nonrecoverable Advance. To the extent that the
Fiscal Agent is required hereunder to make P&I Advances, it shall deposit the
amount thereof in the Distribution Account on such Distribution Date.
(c) To the extent that the Master Servicer or Special
Servicer fails to make a Servicing Advance by the fifteenth day after such
Servicing Advance is required to be made (other than a Servicing Advance that
the Master Servicer or Special Servicer determines is or would be a
Nonrecoverable Advance), if the Trustee has actual knowledge of such failure,
the Trustee will be required to give the defaulting party notice of such failure
and, if such failure continues for three (3) more Business Days, the Trustee
shall make such Servicing Advance unless the Trustee determines that such
Servicing Advance, if made, would be a Nonrecoverable Advance.
(d) To the extent that the Trustee fails to make a
Servicing Advance required to be made by the Trustee hereunder by the later of
(i) the date such Servicing Advance is required to be made and (ii) five
Business Days after the date the Trustee has actual knowledge of such failure
pursuant to subsection (c) above, that such Servicing Advance has not been made
by the Master Servicer (other than a Servicing Advance that the Trustee
determines is or would be a Nonrecoverable Advance), the Fiscal Agent will
advance such Servicing Advance, unless the Fiscal Agent determines that such
Servicing Advance, if made, would be a Nonrecoverable Advance.
The initial Trustee's failure to make any Advance required to
be made by it hereunder shall not constitute a default by the initial Trustee
hereunder if the initial Fiscal Agent makes such Advance.
SECTION 4.4. EVIDENCE OF NONRECOVERABILITY.Notwithstanding
anything herein to the contrary, no Advance shall be required to be made
hereunder if such Advance would, if made, constitute a Nonrecoverable Advance.
In addition, Nonrecoverable Advances shall be reimbursable pursuant to Section
5.2 out of general collections on the Mortgage Loans and REO Properties on
deposit in the Collection Account. The determination by the Master Servicer, the
Special Servicer or, if applicable, the Trustee or the Fiscal Agent, that it has
made a Nonrecoverable Advance or that any proposed Advance, if made, would
constitute a Nonrecoverable Advance, shall be evidenced by an Officer's
Certificate delivered promptly (and, in any event, in the case of a proposed P&I
Advance to be made by the Master Servicer, no less than one Business Day prior
to the related P&I Advance Date) to the Trustee (or, if applicable, retained
thereby) and the Depositor, setting forth the basis for such determination,
together with (if such determination is prior to the liquidation of the related
Mortgage Loan or REO Property) a copy of an Appraisal or internal evaluation of
the related Mortgaged Property or REO Property, as the case may be, which shall
have been performed within the twelve months preceding such determination, and
further accompanied by any other information that the Master Servicer or the
Special Servicer may have obtained and that supports such determination. If such
an Appraisal or internal evaluation shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer or the Special
Servicer, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust payable out of the Collection Account. The Trustee and the
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Fiscal Agent shall each be entitled to rely on any determination of
nonrecoverability that may have been made by the Master Servicer or the Special
Servicer with respect to a particular Advance, the Master Servicer shall be
entitled to rely on any determination of nonrecoverability that may have been
made by the Special Servicer with respect to a particular Advance and shall have
no obligation to make a separate determination of recoverability, and the
Special Servicer shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Master Servicer with respect to
a particular Advance and shall have no obligation to make a separate
determination of recoverability.
SECTION 4.5. ADVANCE INTEREST.The Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent shall each be entitled to receive
interest at the Advance Rate in effect from time to time, accrued on the amount
of each Advance made thereby (out of its own funds) for so long as such Advance
is outstanding, payable: first, out of Penalty Charges actually collected by the
Master Servicer or the Special Servicer in respect of the related Mortgage Loan
(including, without limitation, an REO Mortgage Loan as to which such P&I
Advance was made) or second, if such amounts are insufficient, out of general
collections on the Mortgage Loans and REO Properties in the Collection Account.
Notwithstanding the foregoing, no party shall be entitled to receive interest on
the amount of any P&I Advance on the Super 8 Motel Mortgage Loan (Control #119)
in respect of the period that accrues on or prior to the fifteenth day of each
month.
ARTICLE V.
COLLECTION ACCOUNT; DISTRIBUTION ACCOUNT;
CERTAIN TRUSTEE REPORTS
SECTION 5.1. COLLECTION ACCOUNT.
(a) The Master Servicer shall open, on or prior to the
Closing Date, and shall thereafter maintain a segregated account (the
"COLLECTION ACCOUNT") solely with respect to this Agreement, entitled "First
Union National Bank, as Master Servicer for LaSalle Bank National Association,
as Trustee for the Holders of Heller Financial Commercial Mortgage Asset Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1999 PH-1, Collection
Account." The Collection Account shall be an Eligible Account.
(b) On or prior to the date the Master Servicer shall
first deposit funds in the Collection Account, the Master Servicer shall give to
the Trustee prior written notice of the name and address of the depository
institution at which the Collection Account is maintained and the account number
of the Collection Account. The Master Servicer shall take such actions as are
necessary to cause the depository institution holding the Collection Account to
hold such account in the name of the Master Servicer as provided in Section
5.1(a), subject to the Master Servicer's right to direct payments and
investments and its rights of withdrawal under this Agreement.
(c) The Master Servicer shall deposit into the Collection
Account on the Business Day following receipt the following amounts received or
paid by it, other than (i) interest and principal on the Mortgage Loans due on
or before the Cut-off Date, which shall be remitted to the applicable Seller and
(ii) amounts received from the Mortgagor and used to purchase defeasance
collateral (it being understood that the Master Servicer and Special Servicer
may retain amounts otherwise payable to the Master Servicer or Special Servicer
as provided in Section 5.2(b), such as assumption fees and modification fees,
rather than deposit them into the Collection Account):
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(i) Principal: all payments on account of principal,
including, without limitation, the principal component of Monthly
Payments, any late payments in respect thereof and any Principal
Prepayments, on the Mortgage Loans;
(ii) Interest: all payments on account of interest,
including, without limitation, the interest component of Monthly
Payments, any Late Fees in respect thereof and any Default Interest on
the Mortgage Loans but excluding any Excess Interest (which, if and as
received by the Master Servicer or Special Servicer, shall be remitted
monthly by the Master Servicer or the Special Servicer to the Trustee
for deposit to the Excess Interest Distribution Account);
(iii) Liquidation Proceeds: all Liquidation Proceeds
with respect to the Mortgage Loans, including, without limitation, REO
Mortgage Loans;
(iv) Insurance Proceeds and Condemnation Proceeds:
all Insurance Proceeds and Condemnation Proceeds with respect to any
Mortgaged Property or REO Property (other than any such proceeds to be
applied to the restoration or repair of such property or released to
the related Mortgagor in accordance with applicable law, the terms of
the related Mortgage Loan or the Servicing Standard, in which case such
proceeds shall be deposited by the Master Servicer into an escrow
account or released to the related Mortgagor, as the case may be, and
not deposited in the Collection Account);
(v) Yield Maintenance Charges and Prepayment
Premiums: all Yield Maintenance Charges and Prepayment Premiums with
respect to the Mortgage Loans;
(vi) REO Income: all REO Income (net of any expenses
and fees paid therefrom by the related property manager) in respect of
any REO Properties received from the Special Servicer pursuant to
Section 8.19;
(vii) Investment Losses: any amounts required to be
deposited by the Master Servicer pursuant to Section 5.1(e) and Section
5.3.2 in connection with losses realized on Eligible Investments with
respect to funds held in the Collection Account or Interest Reserve
Account;
(viii) Reserved;
(ix) Repurchase Proceeds and Substitution Shortfall
Amounts: All Repurchase Proceeds and payments of Substitution Shortfall
Amounts with respect to the Mortgage Loans, including, without
limitation, the REO Mortgage Loans; and
(x) Other: all other amounts required to be deposited
in the Collection Account pursuant to this Agreement.
If the Master Servicer deposits 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.
(d) Upon its receipt of any of the amounts described in
clauses (i) through (v) of Section 5.1(c) with respect to any Mortgage Loan or
REO Property, the Special Servicer shall promptly, but in no event later than
the Business Day after receipt, remit such amounts to the Master Servicer for
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deposit into the Collection Account in accordance with Section 5.1(c), unless
the Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. Amounts described in clause (vi) of Section 5.1(c)
with respect to any Mortgage Loan or REO Property, shall be remitted by the
Special Servicer for deposit into the Collection Account in accordance with
Section 8.19. With respect to any such amounts paid by check to the order of the
Special Servicer, the Special Servicer shall endorse such check to the order of
the Master Servicer and shall deliver promptly, but in no event later than the
Business Day after receipt, any such check to the Master Servicer by overnight
courier, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or other appropriate reason. The Master Servicer shall
promptly inform the Special Servicer of the name, account number, location and
other necessary information concerning the Collection Account in order to permit
the Special Servicer to make deposits therein.
(e) Funds in the Collection Account may be invested and,
if invested, shall be invested by, and at the risk of, the Master Servicer in
Eligible Investments selected by the Master Servicer which shall mature, unless
payable on demand, not later than the Business Day immediately preceding the
next Master Servicer Remittance Date, and any such Eligible Investment shall not
be sold or disposed of prior to its maturity unless payable on demand. All such
Eligible Investments shall be made in the name of "First Union National Bank, in
trust for LaSalle Bank National Association, as Trustee for the Holders of the
Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1." None of the Depositor, the
Mortgagors, the Trustee or the Fiscal Agent shall be liable for any loss
incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment (to the extent not needed to offset losses from other investments)
shall be paid to the Master Servicer as additional servicing compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Master Servicer which shall deposit the amount of such loss (to the
extent not offset by income from other investments) in the Collection Account
out of its own funds no later than the next Master Servicer Remittance Date.
Except as expressly provided otherwise in this Agreement, if
any default occurs in the making of a payment due under any Eligible Investment,
or if a default occurs in any other performance required under any Eligible
Investment, the Trustee or the Master Servicer may take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings; provided, however, that if the
Master Servicer shall have deposited in the Collection Account an amount equal
to all amounts due under any such Eligible Investment (net of anticipated income
or earnings thereon that would have been payable to the Master Servicer as
additional servicing compensation), the Master Servicer shall have the sole
right to enforce such payment or performance.
(f) Certain of the Mortgage Loans may provide for payment
by the Mortgagor to the Master Servicer of amounts to be used for payment of
Escrow Payments for the account of the Mortgagor. The Master Servicer shall deal
with these amounts in accordance with the Servicing Standard, applicable law and
the terms of the related Mortgage Loans.
SECTION 5.2. APPLICATION OF FUNDS IN THE COLLECTION
ACCOUNT.
(a) Monthly, on each Master Servicer Remittance Date, the
Master Servicer shall withdraw from the Collection Account and deliver to the
Trustee for deposit in the Distribution Account
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all amounts then on deposit in the Collection Account that represent payments
and other collections on or in respect of the Mortgage Loans and any REO
Properties that were received by the Master Servicer or the Special Servicer
through the end of the related Collection Period, exclusive of any such payments
and other collections that: (i) constitute Monthly Payments due on a Due Date
following the end of the related Collection Period; (ii) are payable or
reimbursable to any Person from the Collection Account pursuant to clauses (i)
through (xvi), inclusive, of Section 5.2(b); and/or (iii) were deposited in the
Collection Account in error. The Trustee shall notify the Master Servicer (in a
manner consistent with the last sentence of Section 4.1(a)) if any such
remittance is not received by 3:00 p.m., New York City time, on any Master
Servicer Remittance Date. In addition, on each P&I Advance Date, the Master
Servicer is authorized to apply certain amounts held in the Collection Account
for future distribution to Certificateholders in subsequent months, all as more
particularly specified in Section 4.1, to make required P&I Advances on such
date.
(b) The Master Servicer may, from time to time, also make
withdrawals from the Collection Account for any of the following purposes:
(i) Servicing Fees: to pay to itself unpaid Master
Servicing Fees and to the Special Servicer unpaid Special Servicing
Fees, in each case earned thereby in respect of each Mortgage Loan,
including, without limitation, each REO Mortgage Loan, the Master
Servicer's and the Special Servicer's respective rights to payment
pursuant to this clause (i) being limited to amounts received, in each
case, in respect of such Mortgage Loan that is allocable as a recovery
of interest thereon or advanced as the interest portion of a P&I
Advance with respect to such Mortgage Loan;
(ii) Workout Fees and Liquidation Fees: to pay to the
Special Servicer earned and unpaid Workout Fees and Liquidation Fees to
which it is entitled pursuant to, and from the sources contemplated by,
Section 8.10(b);
(iii) P&I Advances: to reimburse each of the Fiscal
Agent, the Trustee and the Master Servicer, in that order, for
unreimbursed P&I Advances made by each such Person, the Fiscal Agent's,
the Trustee's and the Master Servicer's respective rights to be
reimbursed pursuant to this clause (iii) being limited to amounts
received that represent Late Collections of interest on and principal
of the particular Mortgage Loans, including, without limitation, REO
Mortgage Loans, with respect to which such P&I Advances were made (in
each case net of related Workout Fees);
(iv) Servicing Advances: to reimburse each of the
Fiscal Agent, the Trustee, the Master Servicer and the Special
Servicer, in that order, for unreimbursed Servicing Advances made by
each such Person, the Fiscal Agent's, the Trustee's, the Master
Servicer's and the Special Servicer's respective rights to be
reimbursed pursuant to this clause (iv) being limited to amounts
received that represent Late Collections of interest on and principal
of the particular Mortgage Loans, including, without limitation, REO
Mortgage Loans, with respect to which such Servicing Advances were made
with respect to any Mortgage Loan or REO Property;
(v) Nonrecoverable Advances: to reimburse the Fiscal
Agent, the Trustee, the Master Servicer and the Special Servicer, in
that order, out of general collections on the Mortgage Loans and REO
Properties, for Nonrecoverable Advances made by each such Person;
(vi) Advance Interest: to pay the Fiscal Agent, the
Trustee, the Master Servicer and the Special Servicer, in that order,
any unpaid Advance Interest due and payable
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thereto, the Fiscal Agent's, the Trustee's, the Master Servicer's and
the Special Servicer's respective rights to payment pursuant to this
clause (vi) being limited to Penalty Charges collected in respect of
the Mortgage Loans, including without limitation any REO Mortgage Loan,
as to which the related Advance was made;
(vii) More Advance Interest: at or following such
time as it reimburses itself, the Special Servicer, the Trustee or the
Fiscal Agent, as applicable, for any unreimbursed Advance pursuant to
clause (iii), (iv) or (v) above or pursuant to Section 8.3, and insofar
as payment has not already been made pursuant to clause (vi) above, to
pay itself, the Special Servicer, the Trustee or the Fiscal Agent, as
the case may be, out of general collections on the Mortgage Loans and
REO Properties, any related Advance Interest accrued and payable on
such Advance;
(viii) Additional Master Servicing and Special
Servicing Compensation: to pay to each of itself and the Special
Servicer all amounts deposited in the Collection Account from time to
time that constitute Additional Master Servicing Compensation and
Additional Special Servicing Compensation, respectively;
(ix) Reserved;
(x) Reserved;
(xi) REO Extensions: to pay, out of general
collections on the Mortgage Loans and REO Properties, the cost of
obtaining any REO Extension contemplated by Section 8.19(a) in respect
of any REO Property;
(xii) General Reimbursements and Indemnities: to pay
itself, the Special Servicer, the Trustee, the Fiscal Agent or any of
their respective directors, officers, employees and agents, as the case
may be, out of general collections on the Mortgage Loans and REO
Properties, pro rata based on their respective entitlements, any
amounts payable to any such Person pursuant to any of Sections 4.8,
7.11, 8.15, 8.26 and 8.27;
(xiii) Legal Advice: to pay, out of general
collections on the Mortgage Loans and REO Properties, for (A) the cost
of the Opinions of Counsel contemplated by Sections 8.7(b)(ii), 8.19(a)
and 13.13, (B) the cost of any other Opinion of Counsel contemplated by
this Agreement which is specifically identified as an expense of the
Trust and (C) the cost of the advice of counsel contemplated by Section
8.20(a);
(xiv) Deleted Mortgage Loans: to any Seller or other
appropriate Person, with respect to each Mortgage Loan or REO Property,
if any, previously purchased or replaced by such Person pursuant to or
as contemplated by this Agreement, all amounts received on such Deleted
Mortgage Loan subsequent to the date of purchase;
(xv) Taxes: to pay any and all federal, state and
local taxes imposed on REMIC I, REMIC II or REMIC III or on the assets
or transactions of any such REMIC Pool, together with all incidental
costs and expenses, and any and all reasonable expenses relating to tax
audits, if and to the extent that either (A) none of the Trustee, the
Fiscal Agent, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 12.1(k), or (B) any such Person that may
be so liable (including any Holder of a Class R-I, Class R-II or Class
R-III Certificate) has failed to make the required payment;
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(xvi) Other Expenses of Trust: to pay to the Person
entitled thereto any amounts specified herein to be expenses of the
Trust, the payment of which is not more specifically provided for in
any prior clause of this Section 5.2(b);
(xvii) Correction of Errors: to withdraw funds
deposited in the Collection Account in error; and
(xviii) Clear and Terminate: to clear and terminate
the Collection Account with a termination of the Trust pursuant to
Section 10.1.
The Master Servicer shall pay to or at the direction of each
of the Depositor, the Special Servicer, the Trustee and the Fiscal Agent from
the Collection Account amounts permitted to be paid therefrom to such Person (or
to third parties in respect of matters that are such Person's responsibility or
under such Person's control) promptly upon receipt of a certificate of, as
applicable, an Authorized Officer of the Depositor, a Special Servicing Officer
of the Special Servicer or a Responsible Officer of the Trustee or the Fiscal
Agent, describing the item and amount to which the Depositor, the Special
Servicer, the Trustee or the Fiscal Agent (or such third party), as the case may
be, is entitled. The Master Servicer may rely conclusively on any such
certificate and shall have no duty to re-calculate the amounts stated therein.
The Master Servicer shall keep and maintain a separate
accounting for each Mortgage Loan for the purpose of justifying any withdrawal
from the Collection Account.
SECTION 5.3. DISTRIBUTION ACCOUNT; EXCESS INTEREST
DISTRIBUTION ACCOUNT; INTEREST RESERVE ACCOUNT.
(a) The Trustee shall establish, on or prior to the
Closing Date, and thereafter maintain in the name of the Trustee, a segregated
account (the "DISTRIBUTION ACCOUNT") solely with respect to this Agreement, to
be held in trust for the benefit of the Holders of interests in the Trust until
disbursed pursuant to the terms of this Agreement, entitled: "LaSalle Bank
National Association, as Trustee, in trust for the benefit of the Holders of
Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1, Distribution Account." The
Distribution Account shall be an Eligible Account.
(b) The Trustee shall deposit into the Distribution
Account on the Business Day received all moneys remitted by the Master Servicer
pursuant to Section 5.2(a) of this Agreement, together with (i) all P&I Advances
and Compensating Interest Payments made by the Master Servicer and (ii) any
reimbursements or indemnifications of the Trust made by any party hereto or any
other Person. Funds in the Distribution Account shall not be invested. The
Distribution Account shall be held separate and apart from and shall not be
commingled with any other monies of or held in trust by the Trustee, including,
without limitation, other monies of the Trustee held under this Agreement.
(c) The Trustee shall make withdrawals from the
Distribution Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution
Account in error and pay such amounts to the Persons entitled thereto;
(ii) to pay itself unpaid Trustee Fees and any other
amounts owed to it pursuant to Section 7.12 hereof;
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(iii) to make distributions to the Certificateholders
pursuant to Section 6.4; and
(iv) to clear and terminate the Distribution Account
in connection with a termination of the Trust pursuant to Section 10.1.
SECTION 5.3.1. EXCESS INTEREST DISTRIBUTION ACCOUNT.
(a) The Trustee shall establish, on or prior to the
Closing Date, and thereafter maintain in the name of the Trustee, a segregated
account (the "EXCESS INTEREST DISTRIBUTION ACCOUNT") solely with respect to this
Agreement, to be held in trust for the benefit of the Holders of beneficial
interests in the grantor trust described in Section 12.1(b) hereof, until
disbursed pursuant to the terms of this Agreement, entitled "LaSalle Bank
National Association, as Trustee, in trust for the benefit of the Holders of
Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 Excess Interest Distribution
Account." The Excess Interest Distribution Account shall be an Eligible Account.
(b) The Trustee shall deposit into the Excess Interest
Distribution Account on the Business Day received all moneys received by it from
the Master Servicer or Special Servicer as Excess Interest. The Trustee shall
hold uninvested any funds in the Excess Interest Distribution Account, and shall
hold the Excess Interest Distribution Account separate and apart from, and shall
not commingle any monies thereof with, any other monies of or held in trust by
the Trustee, including, without limitation, other monies of the Trustee held
under this Agreement.
(c) The Trustee shall make withdrawals from the Excess
Interest Distribution Account only for the following purposes:
(i) to withdraw amounts deposited in the Excess
Interest Distribution Account in error and to pay such amounts to the
Persons entitled thereto;
(ii) to make distributions to the Class N
Certificateholders pursuant to Section 6.4.1, and
(iii) to clear and terminate the Excess Interest
Distribution Account in connection with a termination of the Trust
pursuant to Section 10.1.
SECTION 5.3.2. INTEREST RESERVE ACCOUNT.
(i) The Master Servicer shall establish, on or prior to
the Closing Date, and thereafter maintain in the name of the Master Servicer on
behalf of the Trustee, a segregated account (the "Interest Reserve Account")
solely with respect to this Agreement, to be held in trust for the benefit of
the Holders of the Certificates until disbursed pursuant to the terms of this
Agreement, entitled "First Union National Bank, on behalf of LaSalle Bank
National Association, as Trustee, in trust for the benefit of the Holders of
Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage Pass
Through Certificates, Series 1999 PH-1 Interest Reserve Account." The Interest
Reserve Account shall be an Eligible Account.
(ii) On each Report Date occurring in (i) January of each
calendar year that is not a leap year and (ii) February of each calendar year,
the Master Servicer shall calculate the Withheld Amount and notify the Trustee
of such Withheld Amount. On each such Master Servicer Remittance
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Date, the Master Servicer shall withdraw from the Collection Account and deposit
in the Interest Reserve Account an amount equal to the aggregate of the Withheld
Amounts. If the Master Servicer shall deposit in the Interest Reserve Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the Interest Reserve Account, any provision herein to the
contrary notwithstanding. On or prior to the Master Servicer Remittance Date in
March of each calendar year, the Master Servicer shall transfer to the Trustee
for deposit into the Distribution Account the aggregate of all Withheld Amounts
on deposit in the Interest Reserve Account.
(iii) The Master Servicer may, from time to time, make
withdrawals from the Interest Reserve Account to pay itself, as additional
servicing compensation in accordance with Section 8.10, net interest and
investment income earned in respect of amounts in the Interest Reserve Account.
(iv) Funds in the Interest Reserve Account may be invested
and, if invested, shall be invested at the direction of, and at the risk of, the
Master Servicer in Eligible Investments selected by the Master Servicer which
shall mature, unless payable on demand, not later than the Business Day
immediately preceding the date that such funds are required to be transferred to
the Distribution Account, and any such Eligible Investment shall not be sold or
disposed of prior to its maturity unless payable on demand. All such Eligible
Investments shall be made in the name of "First Union National Bank, in trust
for LaSalle Bank National Association, as Trustee for the Holders of the Heller
Financial Commercial Mortgage Asset Corp., Commercial Mortgage Pass Through
Certificates, Series 1999 PH-1."
(v) An amount equal to all income and gain realized from
any such investment (to the extent not needed to offset losses from other
investments) shall be paid to the Master Servicer as additional servicing
compensation and shall be subject to its withdrawal at any time from time to
time. The amount of any losses incurred in respect of any such investments shall
be for the account of the Master Servicer which shall deposit the amount of such
loss (to the extent not offset by income from other investments) in the
Collection Account out of its own funds no later than the next succeeding Master
Servicer Remittance Date.
SECTION 5.4. TRUSTEE REPORTS; ACCESS TO INFORMATION.
(a) Based on (and to the extent of the information
contained in) the Master Servicer Remittance Report and the report pursuant to
Section 8.14(a) provided to the Trustee by the Master Servicer, which shall be
delivered no later than 3:00 p.m. New York City time on the related Report Date,
on each Distribution Date, the Trustee shall provide to the Rating Agencies and
shall provide or make available to each Certificateholder, the Master Servicer,
the Special Servicer, the Underwriters, the Depositor, HFCF, PMCF and the
Operating Adviser (or if no Operating Adviser has been elected, then the
Majority Certificateholder of the Controlling Class), and, upon request and
written certification as to its beneficial ownership interest in the Book-Entry
Certificates, to any Certificate Owner, a Monthly Certificateholder Report
(substantially in the form of Exhibit G) which includes information regarding
the Mortgage Loans as of the end of the related Collection Period, and which
report will also contain substantially the categories of information regarding
the Mortgage Loans set forth in Exhibit I. The Trustee shall be entitled, in the
absence of manifest error, to conclusively rely on any such information provided
to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify or re-calculate any such information.
(b) The Trustee shall provide or cause to be provided to
the Depositor, the Master Servicer and the Special Servicer, and to the OTS, the
FDIC, and any other federal or state banking or insurance regulatory authority
that may exercise authority over any Certificateholder, access to the Mortgage
Files and any other documentation regarding the Mortgage Loans and the Trust
Fund within its
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control that may be required by this Agreement or by applicable law. Such access
shall be afforded without charge but only upon reasonable prior written request
and during normal business hours at the offices of the Trustee designated by it.
(c) Within a reasonable period of time after the end of
each calendar year, the Trustee shall send to each Person who at any time during
the calendar year was a Certificateholder of record, a report summarizing the
items specified in clauses (i), (ii) and (x) of the definition of Monthly
Certificateholder Report and provided to Certificateholders pursuant to this
Section 5.4, aggregated for such calendar year or the applicable portion thereof
during which such Person was a Certificateholder, together with such other
customary information as the Trustee deems may be necessary or desirable for
such Certificateholders to prepare their federal income tax returns. The
obligations of the Trustee under this Section 5.4(c) shall be deemed to have
been satisfied to the extent that substantially comparable information has been
provided or made available by the Trustee pursuant to the requirements of the
Code.
(d) The Trustee shall make available to Persons with an
account number on the Trustee's ASAP (Automatic Statements Accessed by Phone)
System (or a similar system), the reports described in Section 5.4(a) and a
summary report of Certificate Factors via automated facsimile. The Trustee shall
make available, upon request, to Certificateholders, Certificate Owners
identified to the Trustee in accordance with subsection (g) below, the
Depositor, the Underwriters, the Master Servicer, the Rating Agencies and the
Special Servicer account numbers on the Trustee's ASAP System (or a similar
system). In addition, if the Depositor so directs the Trustee and on terms
acceptable to the Trustee, the Trustee shall make available through its
electronic bulletin board system, on a confidential basis, such information
related to the Mortgage Loans as the Depositor may reasonably request, provided
that such information with respect to the Specially Serviced Mortgage Loans has
been generated or otherwise approved by the Special Servicer. A directory has
been set up on the bulletin board in which an electronic file is stored
containing monthly servicer data. All files shall be password protected.
Passwords to each file shall be released by the Trustee, upon request, to
Certificateholders, Certificate Owners identified to the Trustee in accordance
with subsection (g) below, the Depositor, the Underwriters, the Master Servicer,
the Rating Agencies and the Special Servicer. The Trustee also maintains a site
on the World Wide Web at www.lnbabs.com at which certain of the above
information will be available.
(e) The Trustee shall make available at its Corporate
Trust Office, during normal business hours, upon reasonable advance written
notice for review by any Certificateholder, any Certificate Owner, any
Prospective Investor, the Underwriters, each Rating Agency, the Operating
Adviser (or if no Operating Adviser has been elected, then the Majority
Certificateholder of the Controlling Class), the Special Servicer and the
Depositor, originals or copies of, among other things, the following items: (i)
this Agreement, the Mortgage Loan Purchase Agreements and any amendments
thereto, to the extent such items are in the Trustee's possession, (ii) all
Monthly Certificateholder Reports and reports pursuant to Section 5.4(a)(ii)
delivered by the Trustee to Certificateholders since the Closing Date and all
Operating Statement Analyses, reports pursuant to Section 8.14(a), and Master
Servicer Remittance Reports received by the Trustee from the Master Servicer
since the Closing Date, (iii) all Officer's Certificates delivered to the
Trustee since the Closing Date pursuant to Section 8.12, (iv) all accountants'
reports delivered to the Trustee since the Closing Date pursuant to Section
8.13, (v) the most recent property inspection reports in the possession of the
Trustee in respect of each Mortgaged Property and REO Property, (vi) the most
recent Mortgaged Property/REO Property annual operating statement and rent roll,
if any, collected or otherwise obtained by or on behalf of the Master Servicer
or the Special Servicer and delivered to the Trustee, (vii) any and all
modifications, waivers and
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amendments of the terms of a Mortgage Loan entered into by the Master Servicer
and/or the Special Servicer and delivered to the Trustee, (viii) any and all
Officer's Certificates (and attachments thereto) delivered to or retained by the
Trustee to support any of its, the Fiscal Agent's, the Special Servicer's or the
Master Servicer's determination that any Advance was not or, if made, would not
be, recoverable, (ix) any reports delivered by the Special Servicer to the
Trustee pursuant to Section 8.7(e), and (x) copies of the Prospectus Supplement
and the Memorandum, as such may have been amended or supplemented from time to
time and delivered to the Trustee. Copies (or computer diskettes or other
digital or electronic copies of such information if reasonably available in lieu
of paper copies) of any and all of the foregoing items shall be made available
by the Trustee upon request; provided, however, that the Trustee shall be
permitted to require payment by the requesting party (other than either Rating
Agency) of a sum sufficient to cover the reasonable expenses actually incurred
by the Trustee of providing access or copies (including electronic or digital
copies) of any such information requested in accordance with the preceding
sentence.
(f) The Trustee shall afford the Underwriters, the Rating
Agencies, the Depositor, the Fiscal Agent, the Master Servicer, the Special
Servicer, the Operating Adviser, any Certificateholder, any Certificate Owner
and any Prospective Investor, upon reasonable notice and during normal business
hours, reasonable access to all relevant, non-attorney-client-privileged records
and documentation, including without limitation information delivered by the
Master Servicer or the Special Servicer to the Trustee pursuant to Section 8.16,
regarding the Mortgage Loans, any REO Properties and all other relevant matters
relating to this Agreement. Copies (or computer diskettes or other digital or
electronic copies of such information if reasonably available in lieu of paper
copies) of any and all of the foregoing items shall be made available by the
Trustee upon written request; provided, however, that the Trustee shall be
permitted to require payment by the requesting party (other than either Rating
Agency) of a sum sufficient to cover the reasonable expenses actually incurred
by the Trustee of providing access or copies (including electronic or digital
copies) of any such information requested in accordance with the preceding
sentence.
(g) In connection with providing access to or copies of
the items described in subsections (a), (d), (e), (f) and (h) of this Section
5.4, the Trustee may require (a) in the case of Certificate Owners, a written
confirmation executed by the requesting Person, in form reasonably satisfactory
to the Trustee, generally to the effect that such Person is a beneficial holder
of Certificates, is requesting the information solely for use in evaluating such
Person's investment in the Certificates and will otherwise keep such information
confidential and (b) in the case of Prospective Investors, a written
confirmation executed by the requesting Person, in form reasonably satisfactory
to the Trustee, generally to the effect that such Person is a prospective
purchaser of a Certificate or a beneficial ownership interest therein, is
requesting the information solely for use in evaluating a possible investment in
Certificates and will otherwise keep such information confidential. The Trustee
shall be entitled to conclusively rely on any such certification without
independent investigation or inquiry. All Certificateholders, by the acceptance
of their Certificates, shall be deemed to have agreed to keep such information
confidential. Notwithstanding the foregoing provisions of this Section 5.4(g),
the Trustee shall have no responsibility for the accuracy, completeness or
sufficiency for any purpose of any information so made available or furnished by
it pursuant to subsections (d), (e) and (f) of this Section 5.4.
(h) On each Distribution Date, except as described below,
the Trustee shall provide or make available in electronic format (or, upon
written request, by first class mail) to each Certificateholder, each
Prospective Investor in a Certificate (upon request), each Certificate Owner (if
known), the Depositor, each Underwriter, the Special Servicer and each Rating
Agency a copy of the Comparative Financial Status Report, the Delinquent Loan
Status Report, the Historical Loss Estimate
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Report, the Historical Loan Modification Report, the REO Status Report and a
Watch List (indicating those Mortgage Loans that the Master Servicer has
determined are in jeopardy of becoming Specially Serviced Mortgage Loans)
(collectively, the "Servicer Reports") provided by the Master Servicer to the
Trustee pursuant to Section 8.14(c) and 8.14(e) on the Master Servicer
Remittance Date. The information that pertains to Specially Serviced Mortgage
Loans and REO Properties reflected in such reports shall be based solely upon
the reports delivered by the Special Servicer to the Master Servicer at least
two Business Days prior to the related Master Servicer Remittance Date. Absent
manifest error, (i) none of the Master Servicer, the Special Servicer or the
Trustee shall be responsible for the accuracy or completeness of any information
supplied to it by a Mortgagor 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, (ii) the Trustee
shall not be responsible for the accuracy or completeness of any information
supplied to it by the Master Servicer or Special Servicer that is included in
any reports, statements, materials or information prepared or provided by the
Master Servicer or Special Servicer, as applicable, and (iii) the Trustee shall
be entitled to conclusively rely upon the Master Servicer's reports and the
Special Servicer's reports without any duty or obligation to recompute, verify
or re-evaluate any of the amounts or other information stated therein.
The information contained in the reports in the preceding
paragraph of this Section 5.4(h) shall be made available to the Trustee, the
Special Servicer and the Rating Agencies electronically by the Master Servicer
in the form of the standard CSSA loan file and CSSA property file, and the
Trustee will in lieu of mailing such reports as described in such preceding
paragraph make such reports available electronically in such form to
Certificateholders using the media mutually agreed upon by the Trustee, each
Underwriter and the Depositor; provided, however, that the Trustee will continue
to provide Certificateholders with a written copy of such reports (upon written
request) in the manner described in such preceding paragraph.
The Master Servicer shall deliver a copy of each Operating
Statement Analysis report and NOI Adjustment Worksheet that it generates or
receives from the Special Servicer to the Trustee, the Depositor, the Special
Servicer (as to those generated by the Master Servicer), each Underwriter and
each Rating Agency promptly after its receipt thereof. Upon written request, the
Trustee shall make such reports available to the Certificateholders. Upon
written request, the Trustee shall also make available to any Certificate Owners
and Prospective Investor in the Certificates any NOI Adjustment Worksheet for a
Mortgaged Property or REO Property in the possession of the Trustee, subject to
Section 5.4(g).
SECTION 5.5. TRUSTEE TAX REPORTS. The Trustee shall perform
all reporting and other tax compliance duties that are the responsibility of
each REMIC Pool and of the grantor trust under the Code, the REMIC Provisions,
or other compliance guidance issued by the Internal Revenue Service or any state
or local taxing authority. Consistent with this Agreement, the Trustee shall
provide (i) to the Internal Revenue Service or other Persons (including, but not
limited to, any Person that has transferred a Residual Certificate to a
Disqualified Organization or to an agent that has acquired a Residual
Certificate on behalf of a Disqualified Organization) such information as is
necessary for the application of any tax relating to the transfer of a Residual
Certificate to any Disqualified Organization and (ii) to the Certificateholders
such information or reports as are required by the Code or REMIC Provisions. The
Master Servicer shall on a timely basis provide the Trustee with such
information concerning the Mortgage Loans as is necessary for the preparation of
the tax or information returns or receipts of each REMIC Pool as the Trustee may
reasonably request from time to time. The Special Servicer is required to
provide to the Master Servicer all information in its possession with respect to
the Specially Serviced Mortgage Loans and REO Properties that is requested by
the Master Servicer in order for the Master Servicer to comply with its
obligations under this Section 5.5. The Trustee shall be entitled, in the
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absence of manifest error, to conclusively rely on any such information provided
to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify any such information.
ARTICLE VI.
DISTRIBUTIONS
SECTION 6.1. DISTRIBUTIONS GENERALLY.
(a) All distributions made with respect to each Class on
each Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise provided below, all such distributions with respect to each
Class on each Distribution Date shall be made to the Certificateholders of the
respective Class of record at the close of business on the related Record Date
and shall be made by wire transfer of immediately available funds to the account
of any such Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided the Trustee
with wiring instructions on or before the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates) or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Expense Loss previously allocated
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 Certificate
in reimbursement of a Realized Loss or Expense Loss previously allocated
thereto, which reimbursement is to occur after the date on which such
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Certificateholder that surrendered
such Certificate at such address as last appeared in the Certificate Registrar
or to any other address of which the Trustee was subsequently notified in
writing.
(b) 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 Participants in accordance with its normal procedures. Each
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each Indirect Participant for which
it acts as agent. Each Participant and Indirect Participant shall be responsible
for disbursing funds to the Certificate Owners that it represents. None of the
Trustee, the Fiscal Agent, the Certificate Registrar, the Depositor, the Master
Servicer or the Special Servicer shall have any responsibility therefor except
as otherwise provided by this Agreement or applicable law.
(c) The rights of the Certificateholders to receive
distributions from the proceeds of the Trust Fund in respect of their
Certificates, and all rights and interests of the Certificateholders in and to
such distributions, shall be as set forth in this Agreement. Neither the Holders
of any Class of Certificates nor any party hereto shall in any way be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts properly previously distributed on the Certificates.
Distributions in reimbursement of Realized Losses and Expense Losses previously
allocated to a Class of Certificates shall not constitute distributions of
principal and shall not result in a reduction of the related Class Principal
Balance.
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SECTION 6.2. REMIC I.
(a) On each Distribution Date, the Trustee shall be
deemed to apply the Available Distribution Amount (excluding any amounts
attributable to Yield Maintenance Charges and Prepayment Premiums) as is
attributable to each Mortgage Loan for such date for the following purposes and
in the following order of priority:
(i) to pay interest to REMIC II in respect of each
REMIC I Regular Interest, up to an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest (excluding
amounts attributable to Yield Maintenance Charges and Prepayment
Premiums) for each such REMIC I Regular Interest for such Distribution
Date;
(ii) to pay principal to REMIC II in respect of each
REMIC I Regular Interest, up to an amount equal to, and pro rata in
accordance with, the excess, if any, of the Uncertificated Principal
Balance of such REMIC I Regular Interest outstanding immediately prior
to such Distribution Date, over the Stated Principal Balance of the
related Mortgage Loan (including without limitation an REO Mortgage
Loan or, if applicable, a Qualifying Substitute Mortgage Loan) that
will be outstanding immediately following such Distribution Date;
(iii) to reimburse REMIC II for any Realized Losses
and Expense Losses previously deemed allocated to the various REMIC I
Regular Interests (with interest), up to an amount equal to, and pro
rata in accordance with, the Loss Reimbursement Amount for each such
REMIC I Regular Interest for such Distribution Date; and
(iv) to the Holders of the Class R-I Certificates
that portion, if any, of the Available Distribution Amount (excluding
amounts attributable to Yield Maintenance Charges and Prepayment
Premiums) for such date that has not otherwise been deemed paid to
REMIC II in respect of the REMIC I Regular Interests pursuant to this
Section 6.2(a).
(b) On the Distribution Date occurring in (A) January of
each calendar year that is not a leap year and (B) February of each calendar
year, interest payments constituting the Withheld Amounts that would otherwise
be distributable pursuant to clause (a)(i) above shall be deposited in the
Interest Reserve Account by the Trustee in accordance with Section 5.3.2. On the
Distribution Date in March of each calendar year the Withheld Amounts deposited
in the Interest Reserve Account pursuant to Section 5.3.2. shall be included in
the funds distributable pursuant to clause (a)(i) above.
(c) On each Distribution Date, the Trustee shall be
deemed to apply each Yield Maintenance Charge and Prepayment Premium then on
deposit in the Distribution Account and received during or prior to the related
Collection Period, to pay additional interest to REMIC II in respect of the
REMIC I Regular Interest that relates to the Mortgage Loan (including without
limitation an REO Mortgage Loan or, if applicable, a Replacement Mortgage Loan)
as to which such Yield Maintenance Charge or Prepayment Premium was received.
(d) All amounts (other than additional interest in the
form of Yield Maintenance Charges or Prepayment Premiums) deemed paid to REMIC
II in respect of the REMIC I Regular Interests pursuant to this Section 6.2 on
any Distribution Date is herein referred to as the "REMIC II DISTRIBUTION
AMOUNT" for such date.
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SECTION 6.3. REMIC II.
(a) It is the intention of the parties hereto that the
distributions set forth below result in the Certificate Principal Balances of
each Class of REMIC II Regular Interests and its corresponding Class of
Certificates being equal. On each Distribution Date, the Trustee shall be deemed
to apply the REMIC II Distribution Amount for such date for the following
purposes and in the following order of priority:
(i) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest A-1 and REMIC II Regular Interest
A-2, up to an amount equal to (and pro rata in accordance with) all
Uncertificated Distributable Interest on such REMIC II Regular
Interests for such Distribution Date;
(ii) to distributions of principal to REMIC III in
respect of first, REMIC II Regular Interest A-1, and second, REMIC II
Regular Interest A-2, in each case up to an amount equal to the lesser
of (1) the then outstanding Uncertificated Principal Balance of such
Class and (2) the remaining portion, if any, of such REMIC II
Distribution Amount;
(iii) to reimburse REMIC III for any Realized Losses
and Expense Losses previously deemed allocated to REMIC II Regular
Interest A-1 and REMIC II Regular Interest A-2 (with interest), up to
an amount equal to (and pro rata in accordance with) the Loss
Reimbursement Amount in respect of such REMIC II Regular Interest for
such Distribution Date;
(iv) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest B, up to an amount equal to all
Uncertificated Distributable Interest on such REMIC II Regular Interest
for such Distribution Date;
(v) to distributions of principal to REMIC III in
respect of REMIC II Regular Interest B, until the Uncertificated
Principal Balance thereof is reduced to zero;
(vi) to reimburse REMIC III for any Realized Losses
and Expense Losses previously deemed allocated to REMIC II Regular
Interest B (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such REMIC II Regular Interest for
such Distribution Date;
(vii) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest C, up to an amount equal to all
Uncertificated Distributable Interest on such REMIC II Regular Interest
for such Distribution Date;
(viii) to distributions of principal to REMIC III in
respect of REMIC II Regular Interest C, until the Uncertificated
Principal Balance thereof is reduced to zero;
(ix) to reimburse REMIC III for any Realized Losses
and Expense Losses previously deemed allocated to REMIC II Regular
Interest C (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such REMIC II Regular Interest for
such Distribution Date;
(x) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest D, up to an amount equal to all
Uncertificated Distributable Interest on such REMIC II Regular Interest
for such Distribution Date;
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(xi) to distributions of principal to REMIC III in
respect of REMIC II Regular Interest D, until the Uncertificated
Principal Balance thereof is reduced to zero;
(xii) to reimburse REMIC III for any Realized Losses
and Expense Losses previously deemed allocated to REMIC II Regular
Interest D (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such REMIC II Regular Interest for
such Distribution Date;
(xiii) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest E, up to an amount equal to all
Uncertificated Distributable Interest on such REMIC II Regular Interest
for such Distribution Date;
(xiv) to distributions of principal to REMIC III in
respect of REMIC II Regular Interest E, until the Uncertificated
Principal Balance thereof is reduced to zero;
(xv) to reimburse REMIC III for any Realized Losses
and Expense Losses previously deemed allocated to REMIC II Regular
Interest E (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such REMIC II Regular Interest for
such Distribution Date;
(xvi) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest F, up to an amount equal to all
Uncertificated Distributable Interest on such REMIC II Regular Interest
for such Distribution Date;
(xvii) to distributions of principal to REMIC III in
respect of REMIC II Regular Interest F, until the Uncertificated
Principal Balance thereof is reduced to zero;
(xviii) to reimburse REMIC III for any Realized
Losses and Expense Losses previously deemed allocated to REMIC II
Regular Interest F (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such REMIC II Regular Interest for
such Distribution Date;
(xix) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest G, up to an amount equal to all
Uncertificated Distributable Interest on such REMIC II Regular Interest
for such Distribution Date;
(xx) to distributions of principal to REMIC III in
respect of REMIC II Regular Interest G, until the Uncertificated
Principal Balance thereof is reduced to zero;
(xxi) to reimburse REMIC III for any Realized Losses
and Expense Losses previously deemed allocated to REMIC II Regular
Interest G (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such REMIC II Regular Interest for
such Distribution Date;
(xxii) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest H, up to an amount equal to all
Uncertificated Distributable Interest on such REMIC II Regular Interest
for such Distribution Date;
(xxiii) to distributions of principal to REMIC III in
respect of REMIC II Regular Interest H, until the Uncertificated
Principal Balance thereof is reduced to zero;
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(xxiv) to reimburse REMIC III for any Realized Losses
and Expense Losses previously deemed allocated to REMIC II Regular
Interest H (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such REMIC II Regular Interest for
such Distribution Date;
(xxv) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest J, up to an amount equal to all
Uncertificated Distributable Interest on such REMIC II Regular Interest
for such Distribution Date;
(xxvi) to distributions of principal to REMIC III in
respect of REMIC II Regular Interest J, until the Uncertificated
Principal Balance thereof is reduced to zero;
(xxvii) to reimburse REMIC III for any Realized
Losses and Expense Losses previously deemed allocated to REMIC II
Regular Interest J (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such REMIC II Regular Interest for
such Distribution Date;
(xxviii) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest K, up to an amount equal to all
Uncertificated Distributable Interest on such REMIC II Regular Interest
for such Distribution Date;
(xxix) to distributions of principal to REMIC III in
respect of REMIC II Regular Interest K, until the Uncertificated
Principal Balance thereof is reduced to zero;
(xxx) to reimburse REMIC III for any Realized Losses
and Expense Losses previously deemed allocated to REMIC II Regular
Interest K (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such REMIC II Regular Interest for
such Distribution Date;
(xxxi) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest L, up to an amount equal to all
Uncertificated Distributable Interest on such REMIC II Regular Interest
for such Distribution Date;
(xxxii) to distributions of principal to REMIC III in
respect of REMIC II Regular Interest L, until the Uncertificated
Principal Balance thereof is reduced to zero;
(xxxiii) to reimburse REMIC III for any Realized
Losses and Expense Losses previously deemed allocated to REMIC II
Regular Interest L (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such REMIC II Regular Interest for
such Distribution Date;
(xxxiv) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest M, up to an amount equal to all
Uncertificated Distributable Interest on such REMIC II Regular Interest
for such Distribution Date;
(xxxv) to distributions of principal to REMIC III in
respect of REMIC II Regular Interest M, until the Uncertificated
Principal Balance thereof is reduced to zero;
(xxxvi) to reimburse REMIC III for any Realized
Losses and Expense Losses previously deemed allocated to REMIC II
Regular Interest M (with interest), up to an amount
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equal to the Loss Reimbursement Amount in respect of such REMIC II
Regular Interest for such Distribution Date;
(xxxvii) to distributions of interest to REMIC III in
respect of REMIC II Regular Interest N, up to an amount equal to all
Uncertificated Distributable Interest on such REMIC II Regular Interest
for such Distribution Date;
(xxxvii) to distributions of principal to REMIC III
in respect of REMIC II Regular Interest N, until the Uncertificated
Principal Balance thereof is reduced to zero;
(xxxviii) to reimburse REMIC III for any Realized
Losses and Expense Losses previously deemed allocated to REMIC II
Regular Interest N (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such REMIC II Regular Interest for
such Distribution Date; and
(xxxix) to pay to the Holders of the Class R-II
Certificates, the balance, if any, of the REMIC II Distribution Amount.
(b) On each Distribution Date, the Trustee shall be
deemed to apply all Yield Maintenance Charges and Prepayment Premiums then on
deposit in the Distribution Account and received during or prior to the related
Collection Period, to pay additional interest to REMIC III in respect of the
REMIC II Regular Interests.
(c) All amounts (other than additional interest in the
form of Yield Maintenance Charges and Prepayment Premiums) deemed paid to REMIC
III in respect of the REMIC II Regular Interests pursuant to this Section 6.3 on
any Distribution Date is herein referred to as the "REMIC III DISTRIBUTION
AMOUNT" for such date.
SECTION 6.4. REMIC III.
(a) On each Distribution Date, following the deemed
payments to REMIC III in respect of the REMIC II Regular Interests on such date
pursuant to Section 6.3, the Trustee shall withdraw from the Distribution
Account the REMIC III Distribution Amount for such Distribution Date and shall
apply such amount for the following purposes and in the following order of
priority:
(i) to pay interest to the Holders of the respective
Classes of Senior Certificates, in an amount equal to, and pro rata in
accordance with, all Distributable Certificate Interest in respect of
each such Class of Certificates for such Distribution Date;
(ii) to pay principal from the Principal Distribution
Amount for such Distribution Date, first to the Holders of the Class
A-1 Certificates and, second to the Holders of the Class A-2
Certificates in each case, up to an amount equal to the lesser of (1)
the then-outstanding Class Principal Balance of such Class and (2) the
remaining portion, if any, of such Principal Distribution Amount;
(iii) to reimburse the Holders of the respective
Classes of Class A Certificates for any Realized Losses and Expense
Losses previously deemed allocated to such Classes of Certificates
(with interest), up to an amount equal to, and pro rata as among such
Classes in accordance with, the respective Loss Reimbursement Amounts
in respect of such Classes of Certificates for such Distribution Date;
and
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(iv) to make payments on the Subordinate and
Residual Certificates as provided below;
provided that, on each Distribution Date after the aggregate of the Class
Principal Balances of the Subordinate Certificates has been reduced to zero, and
in any event on the final Distribution Date in connection with a termination of
the Trust described in Article X hereof, the payments of principal to be made
pursuant to clause (ii) above, will be so made to the Holders of the respective
Classes of Class A Certificates, up to an amount equal to, and pro rata as among
such Classes in accordance with, the respective then outstanding Class Principal
Balance of such Certificates for such Distribution Date and without regard to
the Principal Distribution Amounts for such date;
(b) On each Distribution Date, following the foregoing
series of payments on the Senior Certificates, the Trustee shall apply the
remaining portion, if any, of the REMIC III Distribution Amount for such date
for the following purposes and in the following order of priority:
(i) to pay interest to the Holders of the Class B
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(ii) if the Class Principal Balances of the Class A
Certificates have been reduced to zero, to pay principal to the Holders
of the Class B Certificates, up to an amount equal to the lesser of (A)
the then-outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Principal Distribution Amount for
such Distribution Date;
(iii) to reimburse the Holders of the Class B
Certificates for Realized Losses and Expense Losses, if any, previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(iv) to pay 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;
(v) if the Class Principal Balances of the Class A
and Class B Certificates have been reduced to zero, to pay 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 such
Class of Certificates and (B) the remaining Principal Distribution
Amount for such Distribution Date;
(vi) to reimburse the Holders of the Class C
Certificates for any Realized Losses and Expenses Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(vii) to pay interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(viii) if the Class Principal Balances of the Class
A, Class B and Class C Certificates have been reduced to zero, to pay
principal to the Holders of the Class D Certificates, up to an amount
equal to the lesser of (A) the then-outstanding Class Principal
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Balance of such Class of Certificates and (B) the remaining Principal
Distribution Amount for such Distribution Date;
(ix) to reimburse the Holders of the Class D
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(x) to pay interest to the Holders of the Class E
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(xi) if the Class Principal Balances of the Class A,
Class B, Class C and Class D Certificates have been reduced to zero, to
pay principal to the Holders of the Class E Certificates, up to an
amount equal to the lesser of (A) the then-outstanding Class Principal
Balance of such Class of Certificates and (B) the remaining Principal
Distribution Amount for such Distribution Date;
(xii) to reimburse the Holders of the Class E
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xiii) to pay interest to the Holders of the Class F
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(xiv) if the Class Principal Balances of the Class A,
Class B, Class C, Class D and Class E Certificates have been reduced to
zero, to pay principal to the Holders of the Class F Certificates, up
to an amount equal to the lesser of (A) the then-outstanding Class
Principal Balance of such Class of Certificates and (B) the remaining
Principal Distribution Amount for such Distribution Date;
(xv) to reimburse the Holders of the Class F
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xvi) to pay interest to the Holders of the Class G
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(xvii) if the Class Principal Balances of the Class
A, Class B, Class C, Class D, Class E and Class F Certificates have
been reduced to zero, to pay principal to the Holders of the Class G
Certificates, up to an amount equal to the lesser of (A) the
then-outstanding Class Principal Balance of such Class of Certificates
and (B) the remaining Principal Distribution Amount for such
Distribution Date;
(xviii) to reimburse the Holders of the Class G
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with
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interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such Class of Certificates for such Distribution Date;
(xix) to pay interest to the Holders of the Class H
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(xx) if the Class Principal Balances of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G Certificates
have been reduced to zero, to pay principal to the Holders of the Class
H Certificates, up to an amount equal to the lesser of (A) the
then-outstanding Class Principal Balance of such Class of Certificates
and (B) the remaining Principal Distribution Amount for such
Distribution Date;
(xxi) to reimburse the Holders of the Class H
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xxii) to pay interest to the Holders of the Class J
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(xxiii) if the Class Principal Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, to pay principal to the Holders
of the Class J Certificates, up to an amount equal to the lesser of (A)
the then-outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Principal Distribution Amount for
such Distribution Date;
(xxiv) to reimburse the Holders of the Class J
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xxv) to pay interest to the Holders of the Class K
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(xxvi) if the Class Principal Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H and
Class J Certificates have been reduced to zero, to pay principal to the
Holders of the Class K Certificates, up to an amount equal to the
lesser of (A) the then-outstanding Class Principal Balance of such
Class of Certificates and (B) the remaining Principal Distribution
Amount for such Distribution Date;
(xxvii) to reimburse the Holders of the Class K
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
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(xxviii) to pay interest to the Holders of the Class
L Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(xxix) if the Class Principal Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J and Class K Certificates have been reduced to zero, to pay principal
to the Holders of the Class L Certificates, up to an amount equal to
the lesser of (A) the then-outstanding Class Principal Balance of such
Class of Certificates and (B) the remaining Principal Distribution
Amount for such Distribution Date;
(xxx) to reimburse the Holders of the Class L
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date; and
(xxxi) to pay interest to the Holders of the Class M
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date;
(xxxii) if the Class Principal Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K and Class L Certificates have been reduced to zero, to pay
principal to the Holders of the Class M Certificates, up to an amount
equal to the lesser of (A) the then-outstanding Class Principal Balance
of such Class of Certificates and (B) the remaining Principal
Distribution Amount for such Distribution Date;
(xxxiii) to reimburse the Holders of the Class M
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to such Class of Certificates (with interest), up to
an amount equal to the Loss Reimbursement Amount in respect of such
Class of Certificates for such Distribution Date;
(xxxiv) to pay interest to the Holders of the Class N
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the interest in the REMIC regular interest
evidenced by such Class N Certificates for such Distribution Date;
(xxxv) if the Class Principal Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L and Class M Certificates have been reduced to zero,
to pay principal to the Holders of the Class N Certificates, up to an
amount equal to the lesser of (A) the then-outstanding Class Principal
Balance of the interest in the REMIC regular interest evidenced by such
Class N Certificates and (B) the remaining Principal Distribution
Amount for such Distribution Date;
(xxxvi) to reimburse the Holders of the Class N
Certificates for any Realized Losses and Expense Losses previously
deemed allocated to the interest in the REMIC regular interest
evidenced by such Class N Certificates (with interest), up to an amount
equal to the Loss Reimbursement Amount in respect of such Class of
Certificates for such Distribution Date; and
(xxxvii) to pay to the Holders of the Class R-III
Certificates the balance, if any, of the REMIC III Distribution Amount
for such Distribution Date.
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(c) On each Distribution Date, the Trustee shall withdraw
any amounts then on deposit in the Distribution Account that represent Yield
Maintenance Charges collected in respect of Mortgage Loans during or prior to
the related Collection Period and shall distribute such amounts, in each case,
subject to available funds, as additional interest, to the Holders of the
following Classes of Certificates. The product of the Base Interest Fraction and
the aggregate amount of such Yield Maintenance Charges will be allocated for
distribution to Classes then entitled to receive principal distributions on the
related Distribution Date (other than the Class H, J, K, L, M and N
Certificates). The product of (a) the amount of principal distributed to each
Class as a percentage of the principal distributed to all Classes multiplied by
(b) the Base Interest Fraction and multiplied by (c) the amount of Yield
Maintenance Charges collected, will be distributed to each such Class. The
remainder of such Yield Maintenance Charges will be distributed to the Class X
Certificates.
On each Distribution Date, the Trustee shall withdraw any
amounts then on deposit in the Distribution Account that represent Prepayment
Premiums collected in respect of Mortgage Loans during or prior to the related
Collection Period and shall distribute such amounts, in each case, subject to
available funds, as additional interest, to the Holders of the following Classes
of Certificates. Twenty-five percent (25%) of the Prepayment Premiums collected
during any Collection Period will be allocated for distribution to Classes
entitled to receive principal distributions on the related Distribution Date on
a pro rata basis, based on the amount of principal distributed to each such
Class as a percentage of the amount of principal distributed to all classes. The
remainder of such Prepayment Premiums will be allocated to the Class X
Certificates.
(d) All of the foregoing distributions to be made from
the Distribution Account on any Distribution Date with respect to the REMIC III
Certificates shall be deemed made from the payments deemed made to REMIC III in
respect of the REMIC II Regular Interests on such Distribution Date pursuant to
Section 6.3.
SECTION 6.4.1. GRANTOR TRUST.
(a) On each Distribution Date, the Trustee shall withdraw
from the Excess Interest Distribution Account the amount on deposit therein, and
shall pay such amount to the Holders of the Class N Certificates in respect of
their beneficial ownership interest in the assets of the grantor trust, pro rata
in accordance with their respective Percentage Interests. Such distributions
shall be made in addition to any amounts distributable to such Holders pursuant
to Section 6.4 hereof in respect of their interests in the REMIC regular
interest evidenced by such Class N Certificates, and without regard to whether
the REMIC regular interest component of the Class N Certificates is then
outstanding.
SECTION 6.5. ALLOCATION OF REALIZED LOSSES AND EXPENSE
LOSSES.
(a) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC I Regular Interests pursuant to
Section 6.2, the Uncertificated Principal Balance of each REMIC I Regular
Interest (after taking account of such deemed distributions) shall be reduced to
equal the Stated Principal Balance of the related Mortgage Loan (including
without limitation an REO Mortgage Loan or, if applicable, a Replacement
Mortgage Loan) that will be outstanding immediately following such Distribution
Date. Such reductions shall be deemed to be an allocation of Realized Losses and
Expense Losses.
(b) On each Distribution Date, following the payments
deemed to be made to REMIC III in respect of the REMIC II Regular Interests on
such date pursuant to Section 6.3, the Trustee shall also determine the amount,
if any, by which (i) the then-aggregate Uncertificated Principal Balance
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of REMIC II Regular Interests A, B, C, D, E, F, G, H, J, K, L, M and N 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 respective Uncertificated Principal Balances of such REMIC II
Regular Interests shall be reduced sequentially, in reverse alphabetical order
of letter designation, in each case, until the first to occur of such excess
being reduced to zero or the Uncertificated Principal Balance of the particular
REMIC II Regular Interest being reduced to zero. Such reductions in the
Uncertificated Principal Balances of such REMIC II Regular Interests shall be
deemed to be allocations of Realized Losses and Expense Losses.
(c) On each Distribution Date, following the
distributions to be made to the Certificateholders on such date pursuant to
Section 6.4, the Trustee shall determine the amount, if any, by which (i) the
then-aggregate Certificate Principal Balance of the 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
N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class
D, Class C and Class B Certificates shall be reduced sequentially, in that
order, in each case, until the first to occur of such excess being reduced to
zero or the related Class Principal Balance being reduced to zero. If, after the
foregoing reductions, the amount described in clause (i) of the second preceding
sentence still exceeds the amount described in clause (ii) of the second
preceding sentence, then the respective Class Principal Balances of the Class
A-1 and Class A-2 Certificates shall be reduced, pro rata in accordance with the
relative sizes of the then-outstanding Class Principal Balances of such Classes
of Certificates, until the first to occur of such excess being reduced to zero
or each such Class Principal Balance being reduced to zero. Such reductions in
the Class Principal Balances of the respective Classes of Principal Certificates
shall be deemed to be allocations of Realized Losses and Expense Losses.
SECTION 6.6. APPRAISAL REDUCTIONS. Not later than the earliest
of the dates set forth in the definition of "Appraisal Event" in respect of any
Mortgage Loan, or within such longer period as the Special Servicer is
diligently and in good faith proceeding to obtain an appraisal, the Special
Servicer shall obtain (A) an Appraisal of the related Mortgaged Property or REO
Property, as applicable, if the Stated Principal Balance of such Required
Appraisal Loan exceeds $1,000,000 or (B) at the option of the Special Servicer,
if the Stated Principal Balance of such Required Appraisal Loan is less than or
equal to $1,000,000, either an internal valuation prepared by the Special
Servicer or an Appraisal; provided that, in the case of either clause (A) or
(B), if the Special Servicer had completed or obtained an Appraisal or internal
valuation within the immediately preceding 12 months, the Special Servicer may
rely on such Appraisal or internal valuation and shall have no duty to prepare a
new Appraisal or internal valuation, unless such reliance would not be in
accordance with the Servicing Standard. Such Appraisal or internal valuation
shall be updated at least annually to the extent such Mortgage Loan remains a
Required Appraisal Loan. The cost of any such Appraisal if not an internal
valuation performed by the Special Servicer shall be an expense of the Trust and
may be paid from REO Income, treated as an Additional Trust Expense or advanced
by the Special Servicer (or, at the direction of the Special Servicer, by the
Master Servicer) in which event it shall be treated as a Servicing Advance,
subject to Section 4.4 hereof. The Master Servicer, based on the Appraisal or
internal valuation provided to it by the Special Servicer, shall calculate any
Appraisal Reduction. The Master Servicer shall calculate or recalculate the
Appraisal Reduction for any Mortgage Loan based on updated Appraisals or
internal valuations provided to it from time to time by the Special Servicer.
Any Appraisal or internal valuation obtained by the Special Servicer pursuant to
this Section 6.6 shall be delivered by the Special Servicer to the Master
Servicer, and the Master Servicer shall deliver such Appraisal or internal
valuation to the Trustee within 15 days of receipt by the Master Servicer of
such Appraisal or internal valuation from the Special Servicer and the Trustee
shall deliver such Appraisal or internal valuation to the Holders of the
Privately Offered
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Certificates within 15 days of receipt by the Trustee of such Appraisal or
internal valuation from the Master Servicer.
SECTION 6.7. COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
Notwithstanding any other provision of this Agreement to the contrary, the
Trustee shall comply with all federal withholding requirements with respect to
payments to Certificateholders of interest, original issue discount, or other
amounts that the Trustee reasonably believes are subject to such requirements
under the Code. The consent of Certificateholders shall not be required for any
such withholding. In the event the Trustee withholds any amount from payments
made to any Certificateholder pursuant to federal withholding requirements, the
Trustee shall indicate to such Certificateholder the amount withheld.
ARTICLE VII.
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
SECTION 7.1. DUTIES OF TRUSTEE AND THE FISCAL AGENT
(a) The Fiscal Agent and the Trustee, prior to the
occurrence of an Event of Default and after the curing or waiver of all Events
of Default that may have occurred, will perform only those duties as are
specifically set forth in this Agreement and no implied covenants or obligations
shall be read into this Agreement against the Trustee or the Fiscal Agent. Any
permissive right of the Trustee or Fiscal Agent, as applicable, provided for in
this Agreement shall not be construed as a duty of the Trustee or the Fiscal
Agent. Subject to Section 7.1(c)(vi), if an Event of Default occurs and is
continuing, then, 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 Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they on their face conform to the requirements of this
Agreement (to the extent such requirements are set forth herein); provided that
the Trustee shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer or any other Person to the Trustee
pursuant to this Agreement. If any such instrument is found on its face not to
conform to the requirements of this Agreement, the Trustee shall take such
action as it deems appropriate to have the instrument corrected, and if the
instrument is not corrected to the Trustee's reasonable satisfaction, the
Trustee will provide notice thereof to the Certificateholders.
(c) No provision of this Agreement shall be construed to
relieve the Trustee or the Fiscal Agent or any of their respective directors,
officers, employees, agents or Controlling Persons from liability for their own
negligent action, their own negligent failure to act or their own willful
misconduct; provided that:
(i) Neither the Trustee nor the Fiscal Agent nor any
of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable with respect to any
action taken, suffered or omitted to be taken by it (A) in its
reasonable business judgment in accordance with this Agreement or (B)
at the direction of Holders of Certificates entitled to not less than a
majority of the Voting Rights;
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(ii) No provision of this Agreement shall require
either the Trustee or the Fiscal Agent to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it;
(iii) None of the Trustee, the Fiscal Agent or any of
their respective directors, officers, employees, agents or Controlling
Persons shall be responsible for any act or omission of the Master
Servicer, the Special Servicer, the Depositor or any Seller, including,
without limitation, actions taken pursuant to this Agreement, except to
the extent the Trustee or Fiscal Agent is acting as Master Servicer or
Special Servicer;
(iv) The execution by the Trustee of any forms or
plans of liquidation in connection with the REMIC Pools shall not
constitute a representation by the Trustee or the Fiscal Agent as to
the adequacy of such form or plan of liquidation;
(v) The Trustee and the Fiscal Agent shall not be
under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties as Trustee or Fiscal Agent, as
applicable, in accordance with this Agreement. In such event, all legal
expense and costs of such action shall be expenses and costs of the
Trust and the Trustee and the Fiscal Agent shall be entitled to be
reimbursed therefor from the Collection Account pursuant to Section
5.2(b); and
(vi) Neither the Trustee nor the Fiscal Agent shall
be charged with knowledge of any failure by the Master Servicer or the
Special Servicer to comply with their respective obligations under this
Agreement or any act, failure, or breach of any Person upon the
occurrence of which the Trustee may be required to act, except to the
extent the Trustee or Fiscal Agent is acting as Master Servicer or
Special Servicer, or unless a Responsible Officer of the Trustee
obtains actual knowledge of such failure. The Trustee shall be deemed
to have actual knowledge of the failure of the Master Servicer or
Special Servicer to deliver to the Trustee any report, certificate or
other document required to be delivered to the Trustee but not so
delivered when required pursuant to this Agreement.
SECTION 7.2. CERTAIN MATTERS AFFECTING THE TRUSTEE AND
THE FISCAL AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) The Trustee or the Fiscal Agent may request, and
may rely and shall be protected in acting or refraining from acting
upon any resolution, Officer's Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) The Trustee or the Fiscal Agent may consult with
counsel and the advice of such counsel and 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 with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Fiscal Agent nor
any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable for any
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action taken, suffered or omitted by the Trustee or the Fiscal Agent in
its reasonable business judgment and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(iv) The Trustee and the Fiscal Agent (in their
respective capacities as such) shall be under no obligation to exercise
any of the powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or relating hereto or 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 (provided the
same appears regular on its face), unless requested in writing to do so
by Holders of Certificates entitled to at least 25% of the Voting
Rights; provided that, if the payment within a reasonable time to the
Trustee or the Fiscal Agent of the costs, expenses or liabilities
likely to be incurred by it in connection with the foregoing is, in the
opinion of the Trustee not reasonably assured to the Trustee or the
Fiscal Agent by the security afforded to it by the terms of this
Agreement, the Trustee or the Fiscal Agent may require reasonable
indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The Trustee's and the
Fiscal Agent's reasonable expenses shall be paid by the
Certificateholders making such request;
(v) The Trustee and the Fiscal Agent may execute any
of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys, which agents or
attorneys shall have any or all of the rights, powers, duties and
obligations of the Trustee or the Fiscal Agent conferred on them by
such appointment; provided that the Trustee shall continue to be
responsible for its duties and obligations hereunder and shall not be
liable for the actions or omissions of the Master Servicer, the Special
Servicer or the Depositor;
(vi) The Trustee and the Fiscal Agent shall in no
event be required to obtain a deficiency judgment against a Mortgagor;
(vii) Neither the Trustee nor the Fiscal Agent shall
be required to expend its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder (unless
otherwise expressly required herein to do so) if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such liability is not assured to it;
(viii) Neither the Trustee nor the Fiscal Agent shall
be liable for any loss on any investment of funds pursuant to this
Agreement; provided, however, that this provision shall not operate to
forgive the Trustee or the Fiscal Agent, in their respective individual
capacities, for a liability that either of them may have for any
investment loss and incurred on such investment; and
(ix) unless otherwise specifically required by law,
the Trustee and the Fiscal Agent shall not be required to post any
surety or bond of any kind in connection with the execution or
performance of its duties hereunder.
(b) Following the Closing Date, the Trustee shall not
accept any contribution of assets to the Trust not specifically contemplated by
this Agreement unless the Trustee shall have received a Nondisqualification
Opinion at the expense of the Person desiring to contribute such assets with
respect to such contribution.
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(c) All rights of action under this Agreement or under
any of the Certificates, enforceable by the Trustee, may be enforced by it
without the possession of any of the Certificates, or the production thereof at
the trial or the proceeding relating thereto, and any such suit, action or
proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of such Certificates, subject to the provisions of
this Agreement.
(d) The Trustee shall timely pay, from its own funds, the
amount of any and all federal, state and local taxes imposed on the Trust, its
assets, any REMIC Pool or transactions including, without limitation, (A)
"prohibited transaction" taxes as defined in Section 860F of the Code, if, when
and as the same shall be due and payable, (B) any tax on contributions to a
REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any
tax on "net income from foreclosure property" as defined in Section 860G(c) of
the Code, but only if such taxes arise out of a breach by the Trustee of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Trustee.
SECTION 7.3. TRUSTEE AND FISCAL AGENT NOT LIABLE FOR
CERTIFICATES OR INTERESTS OR MORTGAGE LOANS.The Trustee and the Fiscal Agent
make no representations as to the validity or sufficiency of this Agreement ,
the Certificates (other than the certificate of authentication on the
Certificates) or of any Mortgage Loan, Assignment of Mortgage or related
document. The Trustee and the Fiscal Agent shall not be accountable for the use
or application by the Depositor or the Master Servicer or the Special Servicer
of any of the Certificates or any of the proceeds of such Certificates, or for
the use or application by the Depositor or the Master Servicer or the Special
Servicer of funds paid in consideration of the assignment of the Mortgage Loans
to the Trust or deposited into the Distribution Account or any other fund or
account maintained with respect to the Certificates or any account maintained
pursuant to this Agreement or for investment of any such amounts. Neither the
Trustee nor the Fiscal Agent shall at any time have any responsibility or
liability for or with respect to the legality, validity or enforceability of the
Mortgages or the Mortgage Loans, or the perfection and priority of the Mortgages
or, except as provided in Section 2.1(c), the maintenance of any such perfection
and priority, or for or with respect to the efficacy of the Trust or its ability
to generate the payments to be distributed to Certificateholders under this
Agreement, including, without limitation, the existence, condition and ownership
of any Mortgaged Property; the existence and enforceability of any hazard
insurance thereon; the validity of the assignment of the Mortgage Loans to the
Trust or of any intervening assignment; the completeness of the Mortgage Loans;
the performance or enforcement of the Mortgage Loans (other than if the Trustee
shall assume the duties of the Master Servicer or the Special Servicer); any
investment of monies by the Master Servicer or the Special Servicer or any loss
resulting therefrom; the failure of the Master Servicer or any Sub-Servicer or
the Special Servicer to act or perform any duties required of it on behalf of
the Trustee hereunder; or any action by the Trustee taken at the instruction of
the Master Servicer or the Special Servicer.
SECTION 7.4. TRUSTEE AND THE FISCAL AGENT MAY OWN
CERTIFICATES. The Trustee and the Fiscal Agent and any agent of the Trustee and
the Fiscal Agent in its individual or any other capacity may become the owner or
pledgee of Certificates with the same rights it would have if it were not the
Trustee and the Fiscal Agent or such agent.
SECTION 7.5. ELIGIBILITY REQUIREMENTS FOR TRUSTEE AND FISCAL
AGENT. The Trustee hereunder shall at all times be (i) an institution insured by
the FDIC, (ii) a corporation, national bank or national banking association
authorized to exercise corporate trust powers, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority, and (iii) an institution whose long-term senior
unsecured debt is, for so long as a Fiscal Agent
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is acting hereunder, rated not less than "BBB" by Fitch and Baa2 by Moody's;
provided that either the Trustee or the Fiscal Agent shall at all times be an
institution whose long-term senior unsecured debt is rated not less than "AA" by
Fitch and Aa2 by Moody's or otherwise acceptable to the Rating Agencies as
evidenced by a Rating Agency Confirmation. If such corporation, national bank or
national banking association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such corporation, national bank or national banking association shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee or the Fiscal
Agent shall cease to be eligible in accordance with provisions of this Section,
the Trustee or Fiscal Agent shall resign immediately in the manner and with the
effect specified in Section 7.6.
SECTION 7.6. RESIGNATION AND REMOVAL OF TRUSTEE OR FISCAL
AGENT.
(a) The Trustee or the Fiscal Agent may at any time
resign and be discharged from the trusts hereby created by giving written notice
thereof to the Depositor, the Master Servicer, the Special Servicer and the
Rating Agencies; provided that such resignation shall not be effective until its
successor shall have accepted the appointment, commenced acting as successor and
Rating Agency Confirmation from Fitch shall have been obtained with respect to
such appointment. Upon receiving such notice of resignation, the Depositor will
promptly appoint a successor trustee or fiscal agent, as the case may be, except
in the case of the initial Trustee or Fiscal Agent, in which case both shall be
so replaced concurrently, by written instrument, one copy of which instrument
shall be delivered to the resigning Trustee or Fiscal Agent, one copy to the
successor trustee and one copy to each of the Master Servicer and the Rating
Agencies. If no successor trustee or fiscal agent shall have been so appointed
and shall have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee or Fiscal Agent may petition any
court of competent jurisdiction for the appointment of a successor trustee or
fiscal agent.
(b) If at any time (i) the Trustee shall cease to be
eligible in accordance with the provisions of Section 7.5 and shall fail to
resign after written request therefor by the Depositor, (ii) the Trustee shall
become incapable of acting, or shall be adjudged a 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, (iii) a
tax is imposed or threatened with respect to the Trust or any REMIC Pool by any
state in which the Trustee or the Trust held by the Trustee is located;
provided, however, that, if the Trustee and Fiscal Agent agree to indemnify the
Trust for such taxes, it shall not be removed pursuant to this clause (iii), or
(iv) the continuation of the Trustee as such would result in a downgrade,
qualification (if applicable) or withdrawal of the rating by any one or more of
the Rating Agencies of any Class of Certificates (provided that a designation of
"negative" credit watch by Fitch shall constitute a qualification), then the
Depositor may remove such Trustee and appoint a successor trustee by written
instrument, one copy of which instrument shall be delivered to the Trustee so
removed, one copy to the successor trustee and one copy to each of the Master
Servicer, the Special Servicer and the Rating Agencies. In the case of removal
under clauses (i)-(iv) above, the Trustee shall bear all such costs of such
transfer. Such succession shall take effect after a successor trustee has been
appointed. In the case of the removal of the initial Trustee, the Depositor
shall also remove the Fiscal Agent. In this case, the procedures and liability
for costs of such removal shall be the same as they are stated in subsection (c)
with respect to the Fiscal Agent.
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(c) If at any time (i) the Fiscal Agent shall cease to be
eligible in accordance with the provisions of Section 7.5 and shall fail to
resign after written request therefor by the Depositor, or (ii) a Fiscal Agent
Termination Event has occurred, then the Depositor shall send a written notice
of termination to the Fiscal Agent (which notice shall specify the reason for
such termination) and remove such Fiscal Agent and appoint a successor fiscal
agent by written instrument, one copy of which instrument shall be delivered to
the Fiscal Agent so removed, one copy to the successor fiscal agent, and one
copy to each of the Trustee, the Master Servicer, the Special Servicer and the
Rating Agencies. In all such cases, the Fiscal Agent shall bear all costs of
transfer to a successor fiscal agent, such succession only to take effect after
a successor fiscal agent has been appointed. In the case of the initial Fiscal
Agent, the Depositor may, but is not required to, also remove the Trustee. In
this case, the procedures and liability for costs of such removal shall be the
same as they are stated in subsection (b) with respect to the Trustee.
(d) The Holders of Certificates entitled to at least 51%
of the Voting Rights may without cause upon 30 days' written notice to the
Trustee or the Fiscal Agent and to the Depositor remove the Trustee or the
Fiscal Agent by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor and one copy to the Trustee or the Fiscal Agent so
removed; the Depositor shall thereupon use its best efforts to appoint a
successor trustee or fiscal agent in accordance with this Section. The
Certificateholders effecting such transfer shall be responsible for the
reasonable out-of-pocket costs of such removal, including fees and any related
expenses, such as those incurred in transferring the Mortgage Files to the
successor trustee.
(e) Any resignation or removal of the Trustee or the
Fiscal Agent and appointment of a successor trustee or fiscal agent meeting the
eligibility requirements of Section 7.5 pursuant to any of the provisions of
this Section shall become effective upon acceptance of appointment by the
successor trustee and fiscal agent as provided in Section 7.7 and the
commencement of its obligations hereunder. Upon any succession of the Trustee or
Fiscal Agent under this Agreement, the predecessor Trustee or Fiscal Agent shall
be entitled to the payment of compensation and reimbursement agreed to under
this Agreement for services rendered and expenses incurred (including without
limitation unreimbursed Advances made thereby, with any related unpaid Advance
Interest accrued on such Advances) at such times and from such sources as if the
predecessor Trustee or Fiscal Agent had not resigned or been removed. The
Trustee and the Fiscal Agent shall not be liable for any action or omission of
any successor trustee or fiscal agent.
SECTION 7.7. SUCCESSOR TRUSTEE OR FISCAL AGENT.
(a) Any successor trustee or fiscal agent appointed as
provided in Section 7.6 shall execute, acknowledge and deliver to the Depositor
and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
or Fiscal Agent shall become effective and such successor trustee or fiscal
agent, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee or Fiscal Agent
herein. The predecessor Trustee shall deliver to the successor trustee all
Mortgage Files and documents and statements related to the Mortgage Files held
by it hereunder, and shall duly assign, transfer, deliver and pay over to the
successor trustee the entire Trust, together with all instruments of transfer
and assignment or other documents properly executed necessary to effect such
transfer and such records or copies thereof maintained by the predecessor
Trustee or Fiscal Agent in the administration hereof as may be reasonably
requested by the successor trustee or fiscal agent and shall thereupon be
discharged from all duties and
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responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or the Fiscal Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor trustee or the successor fiscal
agent all such rights, powers, duties and obligations. Anything herein to the
contrary notwithstanding, in no event shall the combined fees payable to a
successor trustee and successor fiscal agent exceed the Trustee Fee.
(b) No successor trustee shall accept appointment as
provided in this Section unless at the time of such appointment such successor
trustee shall be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor trustee
or fiscal agent as provided in this Section, the successor trustee or fiscal
agent shall mail notice of the succession of such Trustee or Fiscal Agent
hereunder to the Special Servicer, all Holders of Certificates at their
addresses as shown in the Certificate Register and to the Rating Agencies
(evidence of such mailing to be provided to the Depositor and the Master
Servicer). The expenses of such mailing shall be borne by the successor trustee
or fiscal agent.
SECTION 7.8. MERGER OR CONSOLIDATION OF TRUSTEE. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Trustee shall be a party, or any Persons succeeding
to the business of such Trustee or Fiscal Agent, shall be the successor of such
Trustee or Fiscal Agent hereunder, provided that such Person shall be eligible
under the provisions of Section 7.5, 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 7.9. APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE
OR CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any
time, the Trustee, the Depositor or, in the case of the Trust, the
Certificateholders entitled to more than 50% of the Voting Rights shall each
have the power from time to time to appoint one or more Persons to act either as
co-trustees jointly with the Trustee or as separate trustees, or as custodians,
for the purpose of holding title to, foreclosing or otherwise taking action with
respect to any Mortgage Loan outside the state where the Trustee has its
principal place of business where such separate trustee or co-trustee is
necessary or advisable (or the Trustee is advised by the Master Servicer or
Special Servicer that such separate trustee or co-trustee is necessary or
advisable) under the laws of any state in which a property securing a Mortgage
Loan is located or for the purpose of otherwise conforming to any legal
requirement, restriction or condition in any state in which a property securing
a Mortgage Loan is located or in any state in which any portion of the Trust is
located. The separate trustees, co-trustees, or custodians so appointed shall be
trustees or custodians for the benefit of all the Certificateholders, shall have
such powers, rights and remedies as shall be specified in the instrument of
appointment and shall be deemed to have accepted the provisions of this
Agreement; provided that no such appointment shall, or shall be deemed to,
constitute the appointee an agent of the Trustee; provided, further that the
Trustee shall not be relieved of liability for the actions taken or omissions
made, without the consent of the Trustee, of any co-trustee or separate trustee
appointed by it and shall not be liable for the actions of any co-trustee or
separate trustee not appointed by it.
(b) Every separate trustee, co-trustee, and custodian
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
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(i) all powers, duties, obligations and rights
conferred upon the Trustee in respect of the receipt, custody and
payment of moneys shall be exercised solely by the Trustee;
(ii) all other 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, co-trustee, or custodian jointly, except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed (whether as Trustee hereunder or as successor to
the Master Servicer 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 or any portion thereof in any such jurisdiction, shall be
exercised and performed by such separate trustee, co-trustee, or
custodian;
(iii) no trustee or custodian hereunder shall be
personally liable by reason of any act or omission of any other trustee
or custodian hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders entitled to more than 50% of the Voting Rights
outstanding may at any time accept the resignation of or remove any
separate trustee, co-trustee or custodian, so appointed by it or them,
if such resignation or removal does not violate the other terms of this
Agreement.
(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, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. 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, co-trustee or custodian 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, co-trustee or custodian 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) No separate trustee, co-trustee or custodian
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 7.5 hereof and no notice to Certificateholders of the
appointment of any separate trustee, co-trustee or custodian hereunder shall be
required.
(f) The Trustee agrees to instruct the co-trustees, if
any, to the extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of
the co-trustees, separate trustees or custodians appointed pursuant to this
Section 7.9 and shall be reimbursed in accordance with the standards, specified
in Section 7.12 hereof.
(h) Subject to the consent of the Depositor, which
consent shall not be unreasonably withheld, the Trustee, at its sole cost and
expense, may appoint at any time a Custodian to hold some or
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all of the Mortgage Files. The appointment of a Custodian shall not relieve the
Trustee from any duties, liabilities or obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of such Custodian. Upon the
appointment of a Custodian, the Trustee and the Custodian shall enter into a
custodial agreement.
SECTION 7.10. AUTHENTICATING AGENTS.
(a) The Trustee, at its sole cost and expense, may
appoint one or more Authenticating Agents which shall be authorized to act on
behalf of the Trustee in executing and authenticating Certificates. Wherever
reference is made in this Agreement to the execution and authentication of
Certificates by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include execution and authentication on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent must be acceptable to the Depositor and must be a
corporation organized and doing business under the laws of the United States of
America or of any state and having a principal office and place of business in
the Borough of Manhattan, the City and State of New York or in the State of
Illinois, having a combined capital and surplus of at least $50,000,000,
authorized under such laws to do a trust business and subject to supervision or
examination by federal or state authorities. The Trustee initially shall be
Authenticating Agent hereunder. No such appointment shall relieve the Trustee of
liability or responsibility for the duties to be carried out by the
Authenticating Agent.
(b) Any Person into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any Person succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by
giving at least 30 days' advance written notice of resignation to the Trustee
and the Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of Section 7.10(a),
the Trustee may appoint a successor authenticating agent, shall give written
notice of such appointment to the Depositor and shall mail notice of such
appointment to all Holders of Certificates. Any successor authenticating agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. No such
Authenticating Agent shall be appointed unless eligible under the provisions of
Section 7.10(a). No Authenticating Agent shall have responsibility or liability
for any action taken by it as such at the direction of the Trustee.
SECTION 7.11. INDEMNIFICATION.
(a) The Trustee and each of its directors, officers,
employees, agents and Controlling Persons shall be entitled to indemnification
from the Trust for any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action not expressly required
hereby to be borne by the Trustee and incurred without negligence or willful
misconduct on their part, arising out of, or in connection with this Agreement,
the Certificates and the acceptance or administration of the trusts created
hereunder (including, without limitation, any unanticipated loss, liability or
expense incurred in
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connection with any action or inaction of the Master Servicer, the Special
Servicer or the Depositor hereunder, except to the extent that the Trustee is
acting as Master Servicer or Special Servicer), including the reasonable costs
and expenses of defending themselves against any claim in connection with the
exercise or performance of any of their powers or duties hereunder and the
Trustee and each of its directors, officers, employees, agents and Controlling
Persons shall be entitled to indemnification from the Trust for any
unanticipated loss, liability or expense incurred in connection with the
provision by the Trustee of any report required to be provided by the Trustee
pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee shall
have given the Depositor and the Holders of the Certificates written
notice thereof promptly after the Trustee shall have knowledge thereof;
provided, however, that failure to give such notice to the Depositor
and the Holders of Certificates shall not affect the Trustee's rights
to indemnification herein unless the Master Servicer's defense of such
claim is materially prejudiced thereby;
(ii) while maintaining control over its own defense,
the Trustee shall cooperate and consult fully with the Master Servicer
in preparing such defense; and
(iii) notwithstanding anything to the contrary in
this Section 7.11, the Trust shall not be liable for settlement of any
such claim by the Trustee entered into without the prior consent of the
Master Servicer and the Special Servicer, which consents shall not be
unreasonably withheld.
(b) The Trustee agrees to indemnify the Trust, the
Special Servicer and the Master Servicer, and any director, officer, manager,
member, employee or agent thereof, and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses that either of
them may sustain arising from or as a result of the willful misfeasance, bad
faith or negligence in the performance of any of the Trustee's duties hereunder
or by reason of negligent disregard of the Trustee's obligations and duties
hereunder, including a breach of such obligations a substantial motive of which
is to obtain an economic advantage from being released from such obligations
(unless such claim, loss, penalty, fine, forfeiture, legal fees and related
costs results from the willful misfeasance, bad faith or negligence of such
indemnified party), and if in any such situation the Trustee is replaced, the
parties hereto agree that the amount of such claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments and other costs,
liabilities, fees and expenses shall at least equal the incremental costs, if
any, of retaining a successor trustee. Each of the Special Servicer and the
Master Servicer shall immediately notify the Trustee if a claim is made by a
third party with respect to this Agreement, the Certificates or any asset of the
Trust Fund entitling the Special Servicer or the Master Servicer to
indemnification hereunder, whereupon the Trustee shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Special Servicer and the
Master Servicer and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree that may be
entered against it or them in respect of such claim. Any failure to so notify
the Trustee shall not affect any rights the Special Servicer or the Master
Servicer may have to indemnification under this Agreement or otherwise, unless
the Trustee's defense of such claim is materially prejudiced thereby and the
Trustee delivers a certification explaining the prejudice.
The provisions of this Section 7.11 shall survive any termination of this
Agreement, the resignation or removal of the Trustee and the resignation or
removal of the Master Servicer and the Special Servicer.
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SECTION 7.12. FEES AND EXPENSES OF TRUSTEE AND FISCAL AGENT.
Monthly, the Trustee shall be entitled to receive the Trustee Fee (which shall
not be limited by any provision of law with respect to the compensation of a
trustee of an express trust), for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee. On or before the Master Servicer
Remittance Date in each month (commencing in June 1999), the Master Servicer
shall, pursuant to Section 5.2(a), remit to the Trustee for deposit in the
Distribution Account that portion of funds then on deposit in the Collection
Account that are allocable to cover the Trustee Fees, and the Trustee shall be
entitled to withdraw such portion from the Distribution Account to pay itself
its unpaid Trustee Fees. The Trustee and the Fiscal Agent shall also be entitled
to recover from the Trust all reasonable unanticipated expenses and
disbursements incurred or made by the Trustee and the Fiscal Agent in accordance
with any of the provisions of this Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its outside
counsel and other Persons not regularly in its employ), not including expenses
incurred in the ordinary course of performing its duties as Trustee and Fiscal
Agent hereunder, and except any such expense, disbursement or advance as may
arise from its negligence or bad faith or which is the responsibility of the
Holders of the Certificates hereunder. The provisions of this Section 7.12 shall
survive any termination of this Agreement and the resignation or removal of the
Trustee and Fiscal Agent.
SECTION 7.13. COLLECTION OF MONEYS. Except as otherwise
expressly provided in this Agreement, the Trustee may demand payment or delivery
of, and shall receive and collect, all money and other property payable to or
receivable by the Trustee pursuant to this Agreement. The Trustee shall hold all
such money and property received by it as part of the Trust and shall distribute
it as provided in this Agreement. If the Trustee shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Master
Servicer, the Trustee shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee
shall subsequently receive any such amount, it may withdraw such request.
SECTION 7.14. NOTIFICATION TO HOLDERS.Upon termination of the
Master Servicer or appointment of a successor to the Master Servicer, the
Trustee shall promptly mail notice thereof by first class mail to the Rating
Agencies, the Special Servicer and the Certificateholders at their respective
addresses appearing on the Certificate Register.
SECTION 7.15. REPRESENTATIONS AND WARRANTIES OF TRUSTEE AND
FISCAL AGENT.
(a) The Trustee hereby represents and warrants as of the
Closing Date that:
(i) The Trustee is a national banking association,
duly organized, validly existing and in good standing under the laws
governing its creation and existence and has full corporate power and
authority to own its property, to carry on its business as presently
conducted, and to enter into and perform its obligations under this
Agreement;
(ii) The execution and delivery by the Trustee of
this Agreement have been duly authorized by all necessary corporate
action on the part of the Trustee; neither the execution and delivery
of this Agreement, nor the consummation of the transactions
contemplated in this Agreement, nor compliance with the provisions of
this Agreement, will conflict with or result in a breach of, or
constitute a default under, (A) any of the provisions of any law,
governmental rule, regulation, judgment, decrees or order binding on
the Trustee or its properties that would materially and adversely
affect the Trustee's ability to perform its obligations under this
Agreement, (B) the organizational documents of the Trustee, or (C) the
terms of any material
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agreement or instrument to which the Trustee is a party or by which it
is bound; the Trustee 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 other governmental agency, which default would
materially and adversely affect its performance under this Agreement;
(iii) The execution, delivery and performance by the
Trustee of this Agreement and the consummation of the transactions
contemplated by this Agreement do not require the consent, approval,
authorization or order of, the giving of notice to or the registration
with any state, federal or other governmental authority or agency,
except such as has been or will be obtained, given, effected or taken
in order for the Trustee to perform its obligations under this
Agreement;
(iv) This Agreement has been duly executed and
delivered by the Trustee and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid and binding
obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, subject, as to enforcement of remedies, (A)
to applicable bankruptcy, reorganization, insolvency, moratorium and
other similar laws affecting creditors' rights generally as from time
to time in effect, (B) to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or
at law) and (C) to public policy considerations underlying the
securities laws to the extent that such considerations limit the
enforceability of the provisions of this Agreement that purport to
provide for indemnification for securities law violations; and
(v) No litigation is pending or, to the best of the
Trustee's knowledge, threatened, against the Trustee that, either in
one instance or in the aggregate, would draw into question the validity
of this Agreement, or the outcome of which could reasonably be expected
to materially and adversely affect the execution, delivery and
performance by, or the enforceability against, the Trustee of this
Agreement or the ability of the Trustee to perform under the terms of
this Agreement.
(vi) The Trustee represents that it will use
reasonable commercial efforts to cure (by August 31, 1999) any
deficiencies with regard to the manipulation or calculation of dates
beyond December 31, 1999 in the internally maintained computer software
systems used by the Trustee in the conduct of its trust business which
would materially and adversely affect its ability to perform its
obligations under this Agreement. The Trustee further represents that
it will use reasonable commercial efforts to obtain reasonable
assurances from each third party vendor of licensed computer software
systems used by the Trustee in the conduct of its trust business that
such vendors shall use reasonable commercial efforts to cure any
deficiencies with regard to the manipulation or calculation of dates
beyond December 31, 1999 in such systems which would materially and
adversely affect the ability of the Trustee to perform its obligations
under this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of
the Closing Date that:
(i) The Fiscal Agent is a foreign banking corporation
duly organized, validly existing and in good standing under the laws
governing its creation and existence and has full corporate power and
authority to own its property, to carry on its business as presently
conducted, and to enter into and perform its obligations under this
Agreement;
(ii) The execution and delivery by the Fiscal Agent
of this Agreement have been duly authorized by all necessary corporate
action on the part of the Fiscal Agent; neither the
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execution and delivery of this Agreement, nor the consummation of the
transactions contemplated in this Agreement, nor compliance with the
provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any
law, governmental rule, regulation, judgment, decrees or order binding
on the Fiscal Agent or its properties that would materially and
adversely affect the Fiscal Agent's ability to perform its obligations
under this Agreement, (ii) the organizational documents of the Fiscal
Agent, or (iii) the terms of any material agreement or instrument to
which the Fiscal Agent is a party or by which it is bound; the Fiscal
Agent 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 other governmental agency, which default would materially
and adversely affect its performance under this Agreement;
(iii) The execution, delivery and performance by the
Fiscal Agent of this Agreement and the consummation of the transactions
contemplated by this Agreement do not require the consent, approval,
authorization or order of, the giving of notice to, or the registration
with, any state, federal or other governmental authority or agency,
except such as has been obtained, given, effected or taken prior to the
date hereof;
(iv) This Agreement has been duly executed and
delivered by the Fiscal Agent and, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a valid
and binding obligation of the Fiscal Agent, enforceable against the
Fiscal Agent in accordance with its terms, subject, as to enforcement
of remedies, (A) to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally
as from time to time in effect, (B) to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (C) to public policy considerations
underlying the securities laws to the extent that such considerations
limit the enforceability of the provisions of this Agreement that
purport to provide for indemnification for securities law violations;
and
(v) No litigation is pending or, to the best of the
Fiscal Agent's knowledge, threatened, against the Fiscal Agent, the
outcome of which could reasonably be expected to materially and
adversely affect the execution, delivery and performance by, or the
enforceability against, the Fiscal Agent of this Agreement or the
ability of the Fiscal Agent to perform under the terms of this
Agreement.
SECTION 7.16. FISCAL AGENT TERMINATION EVENT."FISCAL AGENT
TERMINATION EVENT," wherever used herein, means any one of the following
events:
(i) Any failure by the Fiscal Agent to remit
to the Trustee when due any required Advances; or
(ii) A decree or order of a court or agency
or supervisory authority having jurisdiction in the premises
in an involuntary case under any present or future federal or
state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment
of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Fiscal Agent and
such decree or order shall have remained in force undischarged
or unstayed for a period of 60 days; or
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(iii) The Fiscal Agent shall consent to the
appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment
of debt, marshaling of assets and liabilities or similar
proceedings or relating to the Fiscal Agent or of or relating
to all or substantially all of its property; or
(iv) The Fiscal Agent 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
(v) Either Rating Agency shall indicate its
intent to reduce, withdraw or qualify, if applicable (which
shall include a "negative" credit watch or
"RatingAlert--negative") the outstanding rating of any Class
of Certificates because the prospective financial condition or
capacity to make Advances of the Fiscal Agent is insufficient
to maintain such rating; or
(vi) The long-term unsecured debt of the
Fiscal Agent is rated below "AA" (or its equivalent) by either
Rating Agency.
SECTION 7.17. PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of
termination given to the Fiscal Agent pursuant to Section 7.6(c), all authority,
power and rights of the Fiscal Agent under this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall terminate and either a successor
fiscal agent shall be appointed by the Trustee, with the consent of the
Depositor, or the Trustee shall take such other action as shall prevent the
downgrading of the then-current ratings of the certificates; provided that in no
event shall the termination of the Fiscal Agent be effective until Rating Agency
Confirmation shall have been obtained with respect to the appointment of a
successor fiscal agent or such other action. The Fiscal Agent agrees to
cooperate with the Trustee in effecting the termination of the Fiscal Agent's
responsibilities and rights hereunder as Fiscal Agent.
(b) Notwithstanding the termination of its activities as
Fiscal Agent, the terminated Fiscal Agent shall continue to be entitled to
reimbursement of its Advances (with Advance Interest thereon) to the extent
provided in Section 5.2 but only to the extent such reimbursement relates to the
period up to and including the date on which the Fiscal Agent's termination is
effective. The Fiscal Agent shall be reimbursed for all amounts owed to it
hereunder on or prior to the effective date of its termination from amounts on
deposit in the Collection Account.
SECTION 7.18. IMPACT OF YEAR 2000 COMPLIANCE.
(a) Any type of difficulties or problems that may be
encountered by the Trustee related in any way to the manipulation of dates in
1999, 2000 or later, or otherwise related to such party not being Year 2000
ready, shall not in any way relieve such party of its obligations or liabilities
under this Agreement.
SECTION 7.19. MERGER OR CONSOLIDATION OF FISCAL AGENT. Any
Person into which the Fiscal Agent may be merged or consolidated, or any Person
resulting from any merger, conversion, other change in form or consolidation to
which the Fiscal Agent shall be a party, or any Person succeeding to the
business of the Fiscal Agent, shall be the successor of the Fiscal Agent
hereunder, without the
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execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided that
(i) the successor to the Fiscal Agent or resulting Person shall have a net worth
of not less than $100,000,000, (ii) such successor or resulting Person shall be
satisfactory to the Trustee, (iii) such successor or resulting Person shall
execute and deliver to the Trustee an agreement, in form and substance
satisfactory to the Trustee, which contains an assumption by such Person of the
due and punctual performance and observance of each covenant and condition to be
performed or observed by the Fiscal Agent under this Agreement from and after
the date of such agreement, (iv) the Rating Agencies shall be given prior
written notice of the identity of the proposed successor or resulting Person and
the Rating Agencies shall have provided Rating Agency Confirmation, and (v) the
Fiscal Agent shall deliver to the Trustee an Officer's Certificate and an
Opinion of Counsel acceptable to the Trustee (which opinion shall be at the
expense of the Fiscal Agent) stating that all conditions precedent to such
action under this Section 7.19 have been completed and such action is permitted
by and complies with the terms of this Section 7.19.
SECTION 7.20. LIMITATION ON LIABILITY OF THE FISCAL AGENT AND
OTHERS. Neither the Fiscal Agent nor any of the directors, officers, employees,
agents or Controlling Persons of the Fiscal Agent shall be under any liability
to the Certificateholders, the Depositor, or the Trustee for any action taken or
for refraining from the taking of any action in good faith, using reasonable
business judgment, pursuant to this Agreement; provided that this provision
shall not protect the Fiscal Agent or any such person against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties under this Agreement. The Fiscal Agent
and any director, officer, employee or agent of the Fiscal Agent may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Fiscal
Agent shall not be under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its obligations under this Agreement.
The provisions of this Section 7.20 shall survive the resignation or removal of
the Fiscal Agent and the termination of this Agreement.
SECTION 7.21. INDEMNIFICATION OF FISCAL AGENT. The Fiscal
Agent and each of its directors, officers, employees and agents shall be
indemnified and held harmless by the Trust against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, liabilities, fees and expenses incurred in connection with any
legal action relating to this Agreement, other than any loss, liability or
expense incurred by reason of a breach on the part of the Fiscal Agent of any of
its representations, warranties or covenants contained herein or the Fiscal
Agent's willful misfeasance, bad faith or negligence in the performance of
duties hereunder. The Fiscal Agent shall immediately notify the Master Servicer
and the Trustee if a claim is made by a third party with respect to this Section
4.8 entitling the Fiscal Agent, its directors, officers, employees or agents to
indemnification hereunder, whereupon the Trustee shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Fiscal Agent) and pay
out of the Distribution Account all expenses in connection therewith, including
reasonable counsel fees, and promptly pay, discharge and satisfy out of the
Distribution Account any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Master Servicer or
Trustee shall not affect any rights the Fiscal Agent, its directors, officers,
employees or agents may have to indemnification under this Section 7.21, unless
the Trustee's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the resignation or removal of the
Fiscal Agent and the termination of this Agreement.
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ARTICLE VIII.
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 8.1. SERVICING STANDARD; GENERAL POWERS AND
DUTIES.
(a) After the Closing Date, each of the Master Servicer
and the Special Servicer shall service and administer the Mortgage Loans and
other assets of the Trust that it is obligated to service and administer
pursuant to this Agreement on behalf of the Trust and in the best interests of
and for the sole benefit of the Certificateholders (as determined by the Master
Servicer or the Special Servicer, as the case may be, in its good faith and
reasonable judgment), in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans and, to the extent
consistent with the foregoing, further as follows: (i) with the same skill,
prudence, care and diligence as is normal and usual in its general mortgage
servicing and property management activities on behalf of third parties (giving
due consideration to customary industry standards) or on behalf of itself,
whichever is higher, with respect to mortgage loans and REO properties that are
comparable to those for which it is responsible hereunder; (ii) with a view to
the timely collection of all scheduled payments of principal and interest under
the Mortgage Loans or, if a Mortgage Loan comes into and continues in default
and if, in the good faith and reasonable judgment of the Special Servicer, no
satisfactory arrangements can be made for the collection of the delinquent
payments, the maximization of the recovery on such Mortgage Loan to the
Certificateholders (as a collective whole) on a net present value basis (the
relevant discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate); and (iii)
without regard to (A) any relationship that the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Mortgagor, the Depositor, either Seller, or other servicer of the Mortgage
Loans, (B) the ownership of any Certificate by the Master Servicer or the
Special Servicer, as the case may be, or by any Affiliate thereof, (C) the
Master Servicer's obligation to make Advances, (D) the Special Servicer's
obligation to make (or to direct the Master Servicer to make) Servicing
Advances, (E) 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
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction, (F) the ownership,
management or servicing for others of any other mortgage loans or mortgaged
property; and (G) any obligation of the Master Servicer or the Special Servicer,
as the case may be (as a seller or an Affiliate of a seller of the Mortgage
Loans), to pay any indemnity with respect to, or repurchase, any Mortgage Loan
(the conditions set forth in the immediately foregoing clauses (i), (ii) and
(iii), the "SERVICING STANDARD"). Without limiting the generality of the
foregoing, each of the Master Servicer and the Special Servicer, in its own
name, in connection with its servicing and administrative duties hereunder is
hereby authorized and empowered by the Trustee to exercise all efforts
consistent with the foregoing standard and to execute and deliver, on behalf of
the Certificateholders and the Trustee or any of them, any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
subject to Section 8.18, any and all modifications, waivers, amendments or
consents to or with respect to any documents contained in the related Mortgage
File; and any and all instruments of satisfaction or cancellation, or of full
release or discharge, and all other comparable instruments, with respect to the
Mortgage Loans and the Mortgaged Properties. Subject to Section 8.18, each of
the Master Servicer and the Special Servicer is also authorized to approve a
request by a Mortgagor under a Mortgage Loan that it is obligated to service and
administer pursuant to this Agreement, for an easement, consent to alteration or
demolition, and for other similar matters, provided that the Master Servicer or
the
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Special Servicer, as the case may be, determines, exercising its good faith
business judgment in the same manner as it would if it were the owner of the
related Mortgage Loan, that such approval will not affect the security for, or
the timely and full collectability of, the related Mortgage Loan. Subject to
Section 8.8, the Trustee shall furnish, or cause to be furnished, to the Master
Servicer and the Special Servicer any powers of attorney and other documents
necessary or appropriate to enable the Master Servicer or the Special Servicer,
as the case may be, to carry out its servicing and administrative duties
hereunder; provided, however, that the Trustee shall not be held liable for any
negligence with respect to, or misuse of, any such power of attorney by the
Master Servicer or the Special Servicer, as the case may be.
(b) Except as otherwise expressly set forth herein with
respect to specific duties, the Master Servicer shall be responsible for the
servicing and administration of all the Mortgage Loans other than Specially
Serviced Mortgage Loans and REO Mortgage Loans, and the Special Servicer shall
be responsible for the servicing and administration of Specially Serviced
Mortgage Loans, REO Mortgage Loans and REO Properties and for monitoring the
status of Mortgage Loans that would be Specially Serviced Mortgage Loans but for
the first proviso in clause (a) of the definition of "Specially Serviced
Mortgage Loans." Subject to Section 8.1(a), the Master Servicer and the Special
Servicer shall each have full power and authority, acting alone or, subject to
Section 8.4, through Sub-Servicers, to do or cause to be done any and all things
in connection with such servicing and administration that it may deem necessary
or desirable.
(c) 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 promptly give notice
thereof, and shall use its reasonable best efforts to provide the Special
Servicer with all information, documents (but excluding the original documents
in the Mortgage File) and records relating to the Mortgage Loan either in the
Master Servicer's possession or control or otherwise available to the Master
Servicer without undue burden or expense, and reasonably requested by the
Special to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. Any information shall be provided in a
mutually agreed upon format, it being understood that if no format is agreed
upon, a hard copy of such information shall be permitted. The Master Servicer
shall use reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event. The
Special Servicer may, as to any delinquent Mortgage Loan, prior to the
occurrence of a Servicing Transfer Event with respect thereto, upon reasonable
request, obtain the foregoing documents and information.
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 promptly give notice thereof, and
return the related Servicing File, to the Master Servicer and upon giving such
notice, and returning such Servicing File, to the Master Servicer, the Special
Servicer's obligation to service such Mortgage Loan, and the Special Servicer's
right to receive the Special Servicing Fee with respect to such Mortgage Loan,
shall terminate, and the obligations of the Master Servicer to service and
administer such Mortgage Loan in accordance with this Agreement shall resume.
Notwithstanding other provisions in this Agreement to the
contrary, the Master Servicer shall remain responsible for the billing and
collection, accounting, data collection, reporting and other basic Master
Servicer administrative functions with respect to Specially Serviced Mortgage
Loans, provided that the Special Servicer shall establish procedures for the
Master Servicer as to the application of receipts and tendered payments and
shall have the exclusive responsibility for and authority over all contacts with
and notices to Mortgagors and similar matters relating to each Specially
Serviced Mortgage Loan and the related Mortgaged Property.
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(d) The Master Servicer and Special Servicer will each be
required to service and administer each of the respective groups of
Cross-Collateralized Mortgage Loans as a single Mortgage Loan as and when it
deems necessary and appropriate, consistent with the Servicing Standard. If any
Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan,
then each other Mortgage Loan with which it is cross-collateralized shall also
become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized
Mortgage Loan may subsequently become a Corrected Mortgage Loan, unless and
until all Servicing Transfer Events in respect of each other Mortgage Loan with
which it is cross-collateralized, are remediated or otherwise addressed as
contemplated above.
(e) Notwithstanding anything in this Agreement to the
contrary, in the event that the Master Servicer and the Special Servicer are the
same Person, all notices, certificates, information and consents required to be
given by the Master Servicer to the Special Servicer or vice versa shall be
deemed to be given without the necessity of any action on such Person's part.
(f) The relationship of each of the Master Servicer and
the Special Servicer to the Trustee and, unless the same Person acts in both
capacities, to each other under this Agreement is intended by the parties to be
that of an independent contractor and not of a joint venturer, partner or agent.
Unless the same person acts in both capacities, the Master Servicer shall have
no responsibility for the performance of the Special Servicer of its duties
under this Agreement, and the Special Servicer shall have no responsibility for
the performance of the Master Servicer under this Agreement.
SECTION 8.2. COLLECTION OF MORTGAGE LOAN PAYMENTS.
(a) The Master Servicer (or the Special Servicer with
respect to the Specially Serviced Mortgage Loans) shall, in accordance with the
Servicing Standard, make reasonable efforts to collect all payments called for
under the terms and provisions of the Mortgage Loans, and shall follow
procedures which are consistent with the Servicing Standard; provided, however,
that nothing herein contained shall be construed as an express or implied
guarantee by the Master Servicer or the Special Servicer of the collectability
of the Mortgage Loans. Consistent with the foregoing, the Master Servicer may in
its discretion waive any Penalty Charge in connection with any delinquent
payment on a Mortgage Loan (other than a Specially Serviced Mortgage Loan) and
the Special Servicer may in its discretion waive any Penalty Charge in
connection with any delinquent payment on a Specially Serviced Mortgage Loan.
(b) With respect to each Mortgage Loan, if any Lock-Box
Agreement or similar agreement is required by the terms of the related Mortgage,
the Master Servicer shall establish and maintain one or more accounts ("LOCK-BOX
ACCOUNTS") to be held outside the Trust and maintained by the Master Servicer in
accordance with the terms of the related Mortgage. Subject to the terms of the
related Mortgage, any Lock-Box Agreement or similar agreement, Lock-Box Accounts
shall be Eligible Accounts. The Master Servicer shall apply the funds deposited
in such accounts in accordance with the terms of the related Mortgage, any
Lock-Box Agreement and/or any similar agreement and in accordance with the
Servicing Standard.
(c) So long as the related Mortgage Note has not been
accelerated, the Master Servicer and the Special Servicer shall not take any
enforcement action other than requests for payment with respect to payment of
Excess Interest or principal in excess of the principal component of the Monthly
Payment prior to the final maturity date. The Master Servicer and the Special
Servicer will also be permitted to forgive the payment of Excess Interest under
the circumstances set forth in Section 8.18.
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SECTION 8.3. COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR
ITEMS; SERVICING ACCOUNTS AND RESERVE ACCOUNTS.
(a) The Master Servicer shall establish and maintain one
or more accounts (the "SERVICING ACCOUNTS") into which all Escrow Payments shall
be deposited and retained. Subject to the terms of the related Mortgage Note and
Mortgage, Servicing Accounts shall be Eligible Accounts. Withdrawals of amounts
so collected in respect of any Mortgage Loan (and interest earned thereon) from
a Servicing Account may be made only to: (i) effect payment of real estate
taxes, assessments, insurance premiums, ground rents (if applicable) and
comparable items in respect of the related Mortgaged Property; (ii) reimburse
the Master Servicer, the Special Servicer or the Trustee, as applicable, for any
unreimbursed Servicing Advances and unreimbursed Advance Interest made thereby
to cover any of the items described in the immediately preceding clause (i);
(iii) refund to the related Mortgagor any sums as may be determined to be
overages; (iv) pay interest, if required and as described below, to the related
Mortgagor on balances in the Servicing Account (or, if and to the extent not
payable to the related Mortgagor, to pay such interest to the Master Servicer);
or (v) clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 10.1. As part of its servicing duties, the
Master Servicer shall pay or cause to be paid to the Mortgagors interest on
funds in Servicing Accounts maintained thereby, to the extent required by law or
the terms of the related Mortgage Loan, and otherwise may retain such amounts.
(b) The Master Servicer shall (i) maintain accurate
records with respect to each related Mortgaged Property reflecting the status of
real estate taxes, assessments and other similar items that are or may become a
lien thereon and the status of insurance premiums and any ground rents payable
in respect thereof and (ii) use reasonable efforts to obtain, from time to time,
all bills for the payment of such items (including renewal premiums); and the
Master Servicer shall effect payment thereof (in the case of Specially Serviced
Mortgage Loans, at the direction of the Special Servicer) prior to the
applicable penalty or termination date, employing for such purpose Escrow
Payments as allowed under the terms of the related Mortgage Loan. To the extent
that a Mortgage Loan does not require a Mortgagor to escrow for the payment of
real estate taxes, assessments, insurance premiums, ground rents (if applicable)
and similar items, the Master Servicer (or the Special Servicer with respect to
the Specially Serviced Mortgaged Loans) shall use efforts consistent with the
Servicing Standard to cause the related Mortgagor to comply with the
requirements of the related Mortgage for payments in respect of such items at
the time they first become due.
(c) In accordance with the Servicing Standard, the Master
Servicer (at the direction of the Special Servicer in the case of Specially
Serviced Mortgage Loans, but upon five Business Days notice (or such lesser
period as the Special Servicer shall reasonably request)) shall, subject to
Section 4.4, advance with respect to each related Mortgaged Property all such
funds as are necessary for the purpose of effecting the payment of (i) real
estate taxes, assessments and other similar items that are or may become a lien
thereon, (ii) ground rents (if applicable), and (iii) premiums on Insurance
Policies, in each instance if and to the extent that Escrow Payments, if any,
collected from the related Mortgagor are insufficient to pay such item when due
and the related Mortgagor has failed to pay such item on a timely basis. All
such advances shall be reimbursable in the first instance from related
collections from the Mortgagors, and further as provided in Section 5.2. No
costs incurred by the Master Servicer or the Special Servicer in effecting the
payment of real estate taxes, assessments, ground rents (if applicable) and
other similar items on or in respect of the Mortgaged Properties shall, for
purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the unpaid principal balances
of the related Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit.
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(d) The Master Servicer shall establish and maintain, as
applicable, one or more accounts (the "RESERVE ACCOUNTS"), into which all
Reserve Funds, if any, shall be deposited and retained. Withdrawals of amounts
so deposited may be made to pay for, or to reimburse the related Mortgagor in
connection with, the related repairs, environmental remediation, replacements,
capital improvements and/or similar items at the related Mortgaged Property if
such repairs, environmental remediation, replacements, capital improvements
and/or similar items have been completed, and such withdrawals are made, in
accordance with the Servicing Standard and the terms of the related Mortgage
Note, Mortgage and any agreement with the related Mortgagor governing such
Reserve Funds. Subject to the terms of the related Mortgage Note and Mortgage,
all Reserve Accounts shall be Eligible Accounts. Within 12 months of the Closing
Date, the Master Servicer shall deliver a report to the Special Servicer, the
Controlling Class, the Operating Adviser and the Depositor setting forth the
status of each of the Reserve Accounts established for a specified purpose and
fully funded on the Closing Date and the actions taken in respect of the
purposes for which such Reserve Accounts were established and any
recommendations in respect thereof.
SECTION 8.4. SUB-SERVICING AGREEMENTS.
(a) The Master Servicer and the Special Servicer may each
enter into Sub-Servicing Agreements for the servicing and administration of all
or a part of the Mortgage Loans for which it is responsible hereunder, provided
that, in each case, the Sub-Servicing Agreement: (i) is not inconsistent with
this Agreement and shall provide that the Sub-Servicer shall maintain errors and
omissions insurance and fidelity bond coverage as required of the Master
Servicer or the Special Servicer under Section 8.5 hereof, (ii) provides that if
the Master Servicer or the Special Servicer, as the case may be, shall for any
reason no longer be the Master Servicer or Special Servicer, as applicable,
hereunder (including, without limitation, by reason of an Event of Default and
its termination hereunder), the Trustee or its designee may (or in the case of
the Sub-Servicing Agreement between PMCC and the Master Servicer (the "PMCC
Sub-Servicing Agreement"), such Person shall) 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 (except in the case of the PMCC
Sub-Servicing Agreement), may terminate such agreement without payment of any
termination fee or penalty out of the Trust; (iii) in the case of a
Sub-Servicing Agreement entered into by the Master Servicer, expressly or
effectively provides that (if the Master Servicer and the Special Servicer are
not the same Person) such agreement may terminate with respect to any Mortgage
Loan serviced thereunder at the time such Mortgage Loan becomes a Specially
Serviced Mortgage Loan (provided that such agreement may provide that such
Mortgage Loan may again be serviced thereunder if it becomes a Corrected
Mortgage Loan); (iv) in the case of a Sub-Servicing Agreement entered into by
the Special Servicer, relates only to Specially Serviced Mortgage Loans or REO
Properties and expressly or effectively provides that (if the Master Servicer
and the Special Servicer are not the same Person) such agreement shall terminate
with respect to any such Mortgage Loan that becomes a Corrected Mortgage Loan;
(v) provides that the Trustee for the benefit of the Certificateholders shall be
a third party beneficiary under such Sub-Servicing Agreement, but that (except
to the extent the successor to the Master Servicer or Special Servicer, as
applicable (including 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 Trust Fund,
the Trustee, any successor master servicer or special servicer (unless and to
the extent that the successor master servicer or the special servicer is a party
to such Sub-Servicing Agreement), as the case may be, or any Certificateholder
shall have any duties under such Sub-Servicing Agreement or any liabilities
arising therefrom; (vi) permits any purchaser of a Mortgage Loan pursuant to
this Agreement to terminate such Sub-Servicing Agreement with respect to such
purchased Mortgage Loan at its option and without
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penalty and (vii) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund.
References in this Agreement to actions taken or to be taken by the Master
Servicer or the Special Servicer, as the case may be, include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer to satisfy the obligations of the Master Servicer or the
Special Servicer, as the case may be, hereunder to make Servicing Advances and
P&I 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. For purposes of this
Agreement, the Master Servicer and the Special Servicer each shall be deemed to
have received any payment when the Sub-Servicer receives such payment. Annually,
in connection with the delivery of the Officer's Certificate contemplated in
Section 8.12, the Master Servicer and the Special Servicer each shall identify
to the other, the Trustee and the Depositor any Sub-Servicers then retained
thereby.
(b) Each Sub-Servicer shall be authorized to transact
business in the state or states in which the Mortgaged Properties securing the
Mortgage Loans it is to service are situated, if and to the extent required by
applicable law.
(c) As part of its servicing activities hereunder, the
Master Servicer and the Special Servicer, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the Certificateholders
or the Trust Fund) monitor the performance and enforce the obligations of each
Sub-Servicer retained by it under the related Sub-Servicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as the Master Servicer or the
Special Servicer, as the case may be, would require were it the owner of the
Mortgage Loans. Subject to the terms of the applicable Sub-Servicing Agreement,
the Master Servicer and the Special Servicer each shall 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) In the event the Trustee or its designee assumes the
rights and obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the
Master Servicer and the Special Servicer each shall remain obligated and liable
to the Trustee and the Certificateholders for the servicing and administration
of the Mortgage Loans in accordance with the provisions of this Agreement to the
same extent and under the same terms and conditions as if it alone were
servicing and administering the Mortgage Loans for which it is responsible. The
Special Servicer shall not enter into sub-servicing contracts unless the Rating
Agencies have confirmed in writing that entering into such contract will not
result in a qualification, downgrade, or withdrawal of the then-current ratings
on the Certificates, or the sub-servicing contract relates to a loan or loans
that, together with any loans then currently being sub-serviced in accordance
with this section, represent less than 25% of the outstanding principal balance
of all Specially Serviced Mortgage Loans as of the time such contract. The
Master Servicer or the Special Servicer, as applicable, shall indemnify the
Trust Fund against any loss, damage or liability arising by reason of the
willful misfeasance, bad faith or negligence in the performance of
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duties by any Sub-Servicer appointed by it or by reason of negligent disregard
by such Sub-Servicer of obligations and duties under this Agreement and such
Sub-Servicing Agreement.
(f) Notwithstanding anything to the contrary contained
herein, neither the Master Servicer nor the Special Servicer shall have the
right to delegate to any Sub-Servicer any right granted to the Master Servicer
or the Special Servicer, as applicable, hereunder to modify or foreclose upon
any Mortgage Loan.
(g) The fees of a Sub-Servicer shall be the obligation of
the Master Servicer or the Special Servicer, as applicable, that entered into
the related Sub-Servicing Agreement, and the Trust Fund shall not bear any such
fees or any termination fee payable to any Sub-Servicer as a result of the
Sub-Servicer's termination.
(h) The parties hereto acknowledge that any Sub-Servicer
may itself delegate the servicing and administration of all or a part of the
Mortgage Loans for which it is responsible to another sub-servicer, provided
that the Master Servicer shall remain obligated and liable for the servicing and
administration of the Mortgage Loans in accordance with sub-section (e) above.
(i) The parties hereto acknowledge that each Mortgage
Loan Seller under its respective Mortgage Loan Purchase Agreement is required to
promptly remit to the Trustee any scheduled payments of principal and interest
due after the Cut-off Date, and that neither Mortgage Loan Seller shall be
deemed a sub-servicer under this Section 8.4 by virtue of such payments.
SECTION 8.5. MAINTENANCE OF INSURANCE POLICIES; ERRORS AND
OMISSIONS AND FIDELITY COVERAGE.
(a) The Master Servicer shall use reasonable efforts to
cause each Mortgagor to maintain in respect of the related Mortgaged Property
all insurance coverage (other than earthquake insurance) as is required under
the related Mortgage; provided that if any Mortgage permits the holder thereof
to dictate to the Mortgagor the insurance coverage to be maintained on such
Mortgaged Property, the Master Servicer, or the Special Servicer in the case of
Specially Serviced Mortgage Loans, shall impose such insurance requirements as
are consistent with the Servicing Standard. If a Mortgagor fails to maintain
such insurance, the Master Servicer shall (to the extent available at
commercially reasonable rates) obtain such insurance (which may be through a
master or single interest policy), and the cost (including any deductible
relating to such insurance) of such insurance (or in the case of a master or
single interest policy, the incremental cost (including any deductible relating
to such insurance) of such insurance relating to the specific Mortgaged
Property) shall be a Servicing Advance (subject to the limitations set forth in
Section 4.2(a)) recoverable by the Master Servicer pursuant to Section 5.2. If
at any time a Mortgaged Property is located in an area identified in the Flood
Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency
Management Agency as having special flood hazards or it becomes located in such
area by virtue of remapping conducted by such agency (and flood insurance has
been made available), then upon the Master Servicer or the Special Servicer
becoming aware of such fact (using efforts consistent with the Servicing
Standard), the Master Servicer, or the Special Servicer in the case of Specially
Serviced Mortgage Loans, shall, if and to the extent that the Mortgage Loan
requires the Mortgagor or permits the Mortgagee to require the Mortgagor to do
so, use efforts consistent with the Servicing Standard to cause the related
Mortgagor to maintain a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration in an amount
representing coverage of not less than the least of (i) the unpaid principal
balance of the related Mortgage Loan, (ii) the full insurable value of such
Mortgaged Property, (iii) the maximum amount of insurance coverage available
under the National Flood Insurance Act of 1968, the
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Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act
of 1994, as amended, and (iv) 100% of the replacement cost of the improvements
on such Mortgaged Property. If (i) the Mortgagor is required by the terms of the
Mortgage Loan to maintain such insurance (or becomes obligated by virtue of the
related Mortgaged Property becoming located in such area by virtue of such
remapping) or (ii) the terms of the Mortgage Loan permit the mortgagee to
require the Mortgagor to obtain such insurance, the Master Servicer shall
promptly notify the Mortgagor of its obligation to obtain such insurance. If the
Mortgagor fails to obtain such flood insurance within 120 days of such
notification, the Master Servicer shall obtain such insurance (to the extent
available at commercially reasonable rates), and the cost of such insurance
shall be a Servicing Advance recoverable by the Master Servicer pursuant to
Section 5.2. The Special Servicer shall cause to be maintained for each REO
Property no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage. In addition, the Special Servicer shall be
entitled to cause to be maintained earthquake insurance for any REO Property if
obtaining such insurance is in accordance with its Servicing Standard and such
insurance can be obtained for such REO Property at commercially reasonable
rates.
All such insurance policies shall contain a "standard"
mortgagee clause or shall identify the Trustee as the named insured, as
applicable, with any loss payable to the Master Servicer (in the case of
Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on
behalf of the Trustee. Any amounts collected by the Master Servicer or the
Special Servicer under any such policies (other than amounts to be applied to
the restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case in accordance with
applicable law, the terms of the related Mortgage Loan documents and the
Servicing Standard) shall be deposited in the Collection Account, subject to
withdrawal pursuant to Section 5.2. Any cost incurred by the Master Servicer or
the Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the outstanding principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
(b) (i) If the Master Servicer or the Special Servicer,
as applicable, causes any Mortgaged Property or REO Property to be covered by a
blanket insurance policy, which provides protection equivalent to the individual
policies otherwise required, the Master Servicer or Special Servicer will
conclusively be deemed to have satisfied its respective obligations to cause
hazard insurance to be maintained on such Mortgaged Properties or REO
Properties. Such policy may contain a deductible clause, in which case the
Master Servicer or the Special Servicer, as applicable, will in the event that
(i) there shall not have been maintained on the related Mortgaged Property or
REO Property a policy otherwise complying with the provisions of Section 8.5(a),
and (ii) a loss occurs that would have been covered by such a policy had it been
maintained, immediately deposit into the Collection Account (or into the
Servicing Account if insurance proceeds are to be applied to the repair or
restoration of the applicable Mortgaged Property or disbursed to the related
Mortgagor) from its own funds the amount not otherwise payable under such policy
because of such deductible, to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan, or, in the
absence of any such deductible limitation, the deductible limitation which is
consistent with the Servicing Standard. The Master Servicer and the Special
Servicer each agrees to prepare and present, on behalf of itself, the Trustee
and Certificateholders, claims under any such blanket insurance policy
maintained by it in a timely fashion in accordance with the terms of such
policy. The incremental cost of such insurance allocable to any Mortgaged
Property or REO Property, if not borne by the Mortgagor, will be paid by the
Master Servicer as a Servicing Advance.
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(ii) If the Master Servicer or the Special Servicer, as
applicable, causes any Mortgaged Property or REO Property to be covered by a
master force placed insurance policy, which provides protection equivalent to
the individual policies otherwise required, the Master Servicer or Special
Servicer shall conclusively be deemed to have satisfied its respective
obligations to cause hazard insurance to be maintained on such Mortgaged
Properties and/or REO Properties. Such policy may contain a deductible clause,
in which case the Master Servicers or the Special Servicer, as applicable, shall
in the event that (i) there shall not have been maintained on the related
Mortgaged Property or REO Property a policy otherwise complying with the
provisions of Section 8.5(a), and (ii) there shall have been one or more losses
which would have been covered by such a policy had it been maintained,
immediately deposit into the Collection Account (or into the Servicing Account
if insurance proceeds are to be applied to the repair or restoration of the
applicable Mortgaged Property or disbursed to the related Mortgagor) from its
own funds the amount not otherwise payable under such policy because of such
deductible to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the absence of
any such deductible limitation, the deductible limitation which is consistent
with the Servicing Standard. The Master Servicer and the Special Servicer each
agrees to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such master force placed insurance policy
maintained by it in a timely fashion in accordance with the terms of such
policy. The incremental cost of such insurance allocable to any Mortgaged
Property or REO Property, if not borne by the Mortgagor, will be paid by the
Master Servicer as a Servicing Advance.
(c) Each of the Master Servicer and the Special Servicer
shall obtain and maintain at its own expense and keep in full force and effect
throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions insurance policy covering its officers and employees. The amount of
coverage shall be at least equal to the coverage that would be required by FNMA
or FHLMC, whichever is greater, with respect to the Master Servicer or Special
Servicer, as the case may be, if the Master Servicer or Special Servicer, as the
case may be, were servicing and administering the Mortgage Loans and/or REO
Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of
the Master Servicer or the Special Servicer under a policy or bond obtained by
an Affiliate of such Person and providing the coverage required by this Section
8.5(c) shall satisfy the requirements of this Section 8.5(c).
(d) All insurance coverage required to be maintained by
the Master Servicer or the Special Servicer under this Section 8.5 shall be
obtained from Qualified Insurers (A) whose claims-paying ability is rated (or
the obligations of which are guaranteed or backed by a company having such
claims paying ability or rating) at least "A" or its equivalent (or, in the case
of a blanket hazard policy obtained in accordance with Section 8.5(b), rated in
one of the two highest ratings categories) by any two Rating Agencies or (B) who
are (as evidenced by the receipt of Rating Agency Confirmation) otherwise
acceptable to each Rating Agency.
SECTION 8.6. ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION
AGREEMENTS; SUBORDINATE FINANCING.
(a) If any Mortgage Loan contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at
the mortgagee's option) become due and payable upon the sale or other
transfer directly or indirectly of an interest in the related Mortgaged
Property; or
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(ii) provides that such Mortgage Loan may not be
assumed without the consent of the mortgagee in connection with any
such sale or other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or, subject to Section 8.18(a), waive its right to exercise) any right
it may have with respect to such Mortgage Loan (x) to accelerate the payments
thereon, or (y) to withhold its consent to any such sale or other transfer, in a
manner consistent with the Servicing Standard; provided, however, that if the
Mortgaged Property to be sold or transferred relates to a Mortgage Loan (I) (A)
that constitutes 2% or more of the Stated Principal Balance of all the Mortgage
Loans (taking into account for the purposes of such calculation, (a) in the case
of any such Mortgage Loan that is a Cross-Collateralized Mortgage Loan, any
Mortgage Loan with which it is cross-collateralized and (b) in the case of any
such Mortgage Loan with respect to which the related Mortgagor or its affiliate
is a Mortgagor with respect to one or more other Mortgage Loans, such other
Mortgage Loan or Mortgage Loans), or (B) that is one of the ten largest Mortgage
Loans in the Trust Fund (based on its then unpaid principal balance, and
calculated as set forth in clauses (a) and (b) above), then any such sale or
transfer shall require Rating Agency Confirmation from Moody's, and (II) that is
one of the ten largest Mortgage Loans in the Trust Fund (based on its then
unpaid principal balance, and calculated as set forth in clauses (a) and (b)
above), then any such sale or transfer shall require Rating Agency Confirmation
from Fitch. In the event that the Special Servicer intends or is required, in
accordance with the preceding sentence, the Mortgage Loan documents or
applicable law, to permit the transfer of any Mortgaged Property, the Special
Servicer, if consistent with the Servicing Standard, may enter into a
substitution of liability agreement, pursuant to which the original Mortgagor
and any original guarantors are released from liability, and the transferee and
any new guarantors are substituted therefor and become liable under the Mortgage
Note and any related guaranties. In connection with any such transfer and
substitution, the Special Servicer may require from the related Mortgagor a
reasonable and customary fee for the additional services performed by it,
together with reimbursement for any related costs and expenses incurred by it
(but only to the extent that charging such fee will not be a significant
modification of the Mortgage Loan for purposes of the REMIC Provisions and will
not result in an Adverse REMIC Event in respect of any REMIC Pool). The Special
Servicer shall promptly notify the Trustee and the Master Servicer of any such
agreement and forward the original thereof to the Trustee for inclusion in the
related Mortgage File (with a copy to the Master Servicer and the Rating
Agencies). In connection with the Rating Agency Confirmation, the Special
Servicer shall prepare and deliver to the Rating Agencies a memorandum outlining
its analysis and recommendation in accordance with the Servicing Standard,
together with copies of all relevant documentation.
(b) If any Mortgage Loan contains a provision in the nature
of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at
the mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property;
or
(ii) requires the consent of the mortgagee to the
creation of any such additional lien or other encumbrance on the
related Mortgaged Property,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or, subject to Section 8.18(a)(ii), waive its right to exercise) any
right it may have with respect to such Mortgage Loan (x) to accelerate the
payments thereon, or (y) to withhold its consent to the creation of any such
additional lien or other encumbrance, in
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a manner consistent with the Servicing Standard; provided, however, that any
such waiver shall require Rating Agency Confirmation.
(c) Nothing in this Section 8.6 shall constitute a waiver
of the Trustee's right, as the mortgagee of record, to receive notice of any
assumption of a Mortgage Loan, any sale or other transfer of the related
Mortgaged Property or the creation of any additional lien or other encumbrance
with respect to such Mortgaged Property.
(d) Except as otherwise permitted by Section 8.18, the
Special Servicer shall not agree to modify, waive or amend any term of any
Mortgage Loan in connection with the taking of, or the failure to take, any
action pursuant to this Section 8.6.
(e) In the event that a Mortgagor elects to obtain a
release of the related Mortgaged Property from the lien of the related Mortgage
by pledging defeasance collateral in accordance with the terms of the Mortgage
Note, then the Master Servicer shall, in accordance with the terms of such
Mortgage Note, obtain reasonable assurance that the Certificates will not be
subject to a downgrade, withdrawal or qualification, if applicable, by the
Rating Agencies as a result of such defeasance and that any related expenses
will be paid for by the Mortgagor. In addition, to the extent permitted by the
Mortgage Loan documents or applicable law, the Master Servicer shall require an
Opinion of Counsel (which shall be at the expense of the Mortgagor) to the
effect that such defeasance will not cause an Adverse REMIC Event, and an
independent public accountant's certification that the collateral is sufficient
to make such scheduled payments under the related Mortgage Note.
(f) The Master Servicer shall not be required to
establish and maintain on behalf of the Mortgagor a single purpose
bankruptcy-remote entity in connection with the defeasance of a Mortgage Loan.
If the Mortgage Loan documents require the prior written consent of, and
compliance with the conditions set by, the holder of the Mortgage Loan as a
condition to a defeasance of such Mortgage Loan, the Master Servicer agrees to
not grant such consent unless all costs and expenses arising from the defeasance
of the mortgage collateral are borne by the Mortgagor. The out-of-pocket
expenses incurred by the Master Servicer with respect to a defeasance if not
required to be paid by the Mortgagor shall constitute a Servicing Advance. The
Master Servicer shall use its best efforts to collect such out-of-pocket
expenses from the related Seller.
SECTION 8.7. REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Master Servicer shall notify the Special Servicer
of the occurrence of a Servicing Transfer Event in respect of any Mortgage Loan
and, subject to Section 8.18, the Special Servicer shall monitor such Mortgage
Loan, evaluate whether the causes of any default thereunder can be corrected
over a reasonable period without significant impairment of the value of the
related Mortgaged Property, initiate corrective action in cooperation with the
Mortgagor if, in the Special Servicer's reasonable and good faith judgment, cure
is likely, and take such other actions as are consistent with the Servicing
Standard. If, in the Special Servicer's reasonable and good faith judgment, such
corrective action has been unsuccessful, no satisfactory arrangement can be made
for collection of delinquent payments and no other alternative consistent with
the Servicing Standard can be negotiated, and the defaulted Mortgage Loan has
not been released from the Trust Fund pursuant to any provision hereof, then the
Special Servicer shall, subject to subsections (b) through (d) of this Section
8.7, exercise reasonable efforts, consistent with the Servicing Standard, to
foreclose upon or otherwise comparably convert (which may include an REO
Acquisition) the ownership of property securing such Mortgage Loan. The
foregoing is subject to the provision that, in any case in which a Mortgaged
Property shall have suffered damage from an Uninsured Cause, the Master Servicer
and the Special Servicer shall each
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have the right but not the obligation to expend its own funds as a Servicing
Advance toward the restoration of such property if it shall determine in its
reasonable discretion (i) that such restoration will increase, on a net present
value basis, the net proceeds of liquidation of such Mortgaged Property to
Certificateholders after reimbursement to itself for such Advances (together
with Advance Interest), and (ii) that such Advances (together with Advance
Interest) will be recoverable by the Master Servicer or Special Servicer, as the
case may be, out of the proceeds of liquidation of such Mortgaged Property, as
contemplated in Section 5.2. The Special Servicer (or, at the direction of the
Special Servicer, the Master Servicer) shall be responsible for all other costs
and expenses incurred by it in any such proceedings, subject to its being
entitled to reimbursement therefor as a Servicing Advance as provided in Section
4.2 or Section 5.2, and further subject to its being entitled to pay out of the
related Liquidation Proceeds any Liquidation Expenses incurred in respect of any
Mortgage Loan, which Liquidation Expenses were outstanding at the time such
proceeds are received. When applicable state law permits the Special Servicer to
select between judicial and non-judicial foreclosure in respect of any Mortgaged
Property, the Special Servicer shall make such selection in a manner consistent
with the Servicing Standard. Nothing contained in this Section 8.7 shall be
construed so as to require the Special Servicer, on behalf of the Trust Fund, to
make a bid on any Mortgaged Property at a foreclosure sale or similar proceeding
that is in excess of the fair market value of such property, as determined by
the Special Servicer in its sole judgment taking into account, among other
things, the physical condition of the Mortgaged Property, the state of the local
economy, the Trust's obligation to dispose of any REO Property within the period
specified in Section 8.19, and the results of any Appraisal obtained pursuant to
this Agreement, all such bids to be made in a manner consistent with the
Servicing Standard. If and when the Master Servicer or the Special Servicer
deems it necessary and prudent for purposes of establishing the fair market
value of any Mortgaged Property securing a defaulted Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, the Special Servicer is
authorized to have an Appraisal performed with respect to such property (the
cost of which Appraisal shall be covered by, and be reimbursable as, a Servicing
Advance).
(b) The Special Servicer shall not acquire any personal
property pursuant to this Section 8.7 (with the exception of cash or cash
equivalents pledged as collateral for a Mortgage Loan) unless either:
(i) such personal property is incident to real
property (within the meaning of Section 856(e)(1) of the Code) so
acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an
Opinion of Counsel (the cost of which may be withdrawn from the
Collection Account pursuant to Section 5.2) to the effect that the
holding of such personal property by the Trust Fund will not cause the
imposition of a tax on the Trust Fund or any REMIC Pool under the REMIC
Provisions or cause any of REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this
Section 8.7, the Special Servicer shall not, on behalf of the Trustee, complete
foreclosure proceedings, obtain title to a Mortgaged Property in lieu of
foreclosure or otherwise, have a receiver of rents appointed with respect to any
Mortgaged Property, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously received an Environmental
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Assessment in respect of such Mortgaged Property prepared (within the prior
three-month period) by a Person who regularly conducts Environmental Assessments
and the Special Servicer, based solely (as to environmental matters and related
costs) on the information set forth in such Environmental Assessment, determines
that:
(i) the Mortgaged Property is in compliance with
applicable Environmental Laws or, if not, that acquiring such Mortgaged
Property and taking such actions as are necessary to bring the
Mortgaged Property in compliance therewith is reasonably likely to
produce a greater recovery to Certificateholders on a net present value
basis than not acquiring such Mortgaged Property and not taking such
actions; and
(ii) there are no circumstances or conditions present
at the Mortgaged Property relating to the use, management or disposal
of Hazardous Materials for which investigations, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances
or conditions are present for which any such action could be required,
that acquiring such Mortgaged Property and taking such actions with
respect to such Mortgaged Property is reasonably likely to produce a
greater recovery to Certificateholders on a net present value basis
than not acquiring such Mortgaged Property and not taking such actions.
The cost of any such Environmental Assessment, as well as the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding paragraph, shall be advanced by the Master
Servicer; and if any such Environmental Assessment so warrants, the Special
Servicer shall perform such additional environmental testing as is consistent
with the Servicing Standard to determine whether the conditions described in
clauses (i) and (ii) of the preceding paragraph have been satisfied. The costs
of such testing shall be a Servicing Advance.
(d) If the environmental testing contemplated by
subsection (c) above establishes that either of the conditions set forth in
clauses (i) and (ii) of the first sentence thereof has not been satisfied with
respect to any Mortgaged Property securing a defaulted Mortgage Loan, then the
Special Servicer shall take such action as it deems to be in the best economic
interest of the Trust Fund (other than proceeding to acquire title to the
Mortgaged Property) and is hereby authorized at such time as it deems
appropriate to release all or a portion of such Mortgaged Property from the lien
of the related Mortgage.
(e) The Special Servicer shall provide to the Master
Servicer, the Depositor and each Rating Agency, and the Master Servicer shall,
in turn, promptly deliver copies thereof to the Trustee, written reports
regarding any material actions taken by the Special Servicer with respect to any
Mortgaged Property securing a defaulted Mortgage Loan as to which the
environmental testing contemplated in subsection (c) above has revealed that
either of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earliest to occur of
satisfaction of both such conditions, removal of the related Mortgage Loan from
the Trust Fund and release of the lien of the related Mortgage on such Mortgaged
Property.
(f) The Master Servicer shall report to the Internal
Revenue Service and the related Mortgagor, in the manner required by applicable
law, the information required to be reported regarding any Mortgaged Property
which is abandoned or foreclosed, and the information required to be reported
regarding the discharge of any debt. The Special Servicer shall provide the
Master Servicer with such information and reports as the Master Servicer deems
necessary to fulfill its obligations under this
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Section 8.7(f) promptly upon the Master Servicer's request therefor. The Master
Servicer shall deliver a copy of any such report to the Trustee and the Special
Servicer.
(g) The Special Servicer shall have the right to
determine, in accordance with the Servicing Standard, the advisability of the
maintenance of an action to obtain a deficiency judgment if the laws of the
state in which the Mortgaged Property is located and the terms of the Mortgage
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination in respect
of a defaulted Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than 10 Business Days following
such Final Recovery Determination.
SECTION 8.8. TRUSTEE TO COOPERATE; RELEASE OF MORTGAGE FILES.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer or the Special Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Master Servicer or the Special Servicer, as the case may be, will immediately
notify the Trustee and request delivery of the related Mortgage File. Any such
notice and request shall be in the form of a Request for Release signed by a
Servicing Officer and shall include a statement to the effect that all amounts
received or to be received in connection with such payment that are required to
be deposited in the Collection Account pursuant to Section 5.1 have been or will
be so deposited. Within five Business Days (or within such shorter period as
release can reasonably be accomplished if the Master Servicer or the Special
Servicer notifies the Trustee of an exigency) of receipt of such notice and
request, the Trustee shall release, or cause any related Custodian to release,
the related Mortgage File to the Master Servicer or the Special Servicer,
whichever requested it. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Collection
Account.
(b) From time to time as is appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
may deliver to the Trustee a Request for Release signed by a Servicing Officer
thereof. Upon receipt of the foregoing, the Trustee shall deliver or cause the
related Custodian to deliver, the Mortgage File or any document therein to the
Master Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File or such document to the Trustee or the related Custodian, or the
delivery to the Trustee of a certificate of a Servicing Officer stating that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account pursuant to Section 5.1 have been or will be so
deposited, or that such Mortgage Loan has become an REO Mortgage Loan, the
Request for Release shall be released by the Trustee to the Master Servicer or
the Special Servicer, as applicable.
(c) Within five Business Days (or within such shorter
period as delivery can reasonably be accomplished if the Special Servicer
notifies the Trustee of an exigency) of receipt thereof, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
trustee's sale or other documents necessary to the foreclosure or trustee's sale
in respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
Mortgage Note or Mortgage or otherwise available at law or in equity. The
Special Servicer shall be responsible for the preparation of all such documents
and pleadings. When submitted to the Trustee for
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signature, such documents or pleadings shall be accompanied by a certificate of
a Servicing Officer requesting that such pleadings or documents be executed by
the Trustee and certifying as to the reason such documents or pleadings are
required and that the execution and delivery thereof by the Trustee will not
invalidate or otherwise affect the lien of the related Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
SECTION 8.9. DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER SERVICER OR SPECIAL SERVICER TO BE HELD FOR TRUSTEE FOR THE BENEFIT OF
CERTIFICATEHOLDERS.
Notwithstanding any other provisions of this Agreement, the
Master Servicer and the Special Servicer shall each transmit to the Trustee, to
the extent required by this Agreement, all documents and instruments coming into
the possession of the Master Servicer or the Special Servicer, as the case may
be, from time to time and shall account fully to the Trustee for any funds
received or otherwise collected thereby, including Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds in respect of any Mortgage Loan or
REO Property. All Mortgage Loan documents and funds collected or held by, or
under the control of, the Master Servicer or the Special Servicer in respect of
any Mortgage Loans and/or REO Properties, whether from the collection of
principal and interest payments or from Liquidation Proceeds, Condemnation
Proceeds or Insurance Proceeds or otherwise, including any funds on deposit in
the Collection Account, shall be held by the Master Servicer or the Special
Servicer, as the case may be, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee, subject to the applicable provisions of this Agreement. The Master
Servicer and the Special Servicer each agrees that it shall not create, incur or
subject any Mortgage Loan documents or any funds that are deposited in the
Collection Account or any Lock-Box Account, Reserve Account or Servicing
Account, or any funds that otherwise are or may become due or payable to the
Trustee, to any claim, lien, security interest, judgment, levy, writ of
attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of setoff against any Mortgage Loan documents or any funds
collected on, or in connection with, a Mortgage Loan or REO Property, except,
however, that the Master Servicer and the Special Servicer each shall be
entitled to receive from any such funds any amounts that are properly due and
payable to the Master Servicer or the Special Servicer, as the case may be,
under this Agreement.
SECTION 8.10. SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the
Master Servicer shall be entitled to receive the Master Servicing Fee with
respect to each Mortgage Loan, including without limitation each Specially
Serviced Mortgage Loan and each REO Mortgage Loan. As to each Mortgage Loan,
including without limitation each Specially Serviced Mortgage Loan and each REO
Mortgage Loan, the Master Servicing Fee shall accrue on the related Stated
Principal Balance of such Mortgage Loan outstanding from time to time at the
applicable Master Servicing Fee Rate and shall be computed based on the Stated
Principal Balance as of the second preceding Due Date of such Mortgage Loan, and
using the same day count convention as the related Mortgage Loan. 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. The Master Servicing
Fee shall be payable monthly, on a loan-by-loan basis, from payments of interest
on each Mortgage Loan, REO Income allocable as interest on each REO Mortgage
Loan and the interest portion of P&I Advances on each Mortgage Loan, including
without limitation each REO Mortgage Loan. The Master Servicer shall be entitled
to recover unpaid Master Servicing Fees in respect of any Mortgage Loan,
including without limitation each REO Mortgage Loan, out of that portion of
related Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds,
Repurchase Proceeds or payments of Substitution Shortfall Amounts allocable as
recoveries of interest, to the extent permitted by
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Section 5.2. The Master Servicer's 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.
The Master Servicer shall be entitled to additional master
servicing compensation ("ADDITIONAL MASTER SERVICING COMPENSATION") in the form
of:
(i) 50% of any assumption fees (other than in respect
of Specially Serviced Mortgage Loans), 100% of any modification fees
relating to modifications made pursuant to Section 8.18(d), and Penalty
Charges collected on Mortgage Loans other than Specially Serviced
Mortgage Loans and REO Mortgage Loans, but only to the extent actually
paid by the related Mortgagor and to the extent that all amounts then
due and payable with respect to the related Mortgage Loan have been
paid and, with respect to Penalty Charges only, are not needed to pay
Advance Interest with respect to any other Mortgage Loan;
(ii) any Prepayment Interest Excesses collected on
the Mortgage Loans, including without limitation Specially Serviced
Mortgage Loans and REO Mortgage Loans, but only to the extent that the
aggregate of all such Prepayment Interest Excesses collected during
each Collection Period exceeds the Prepayment Interest Shortfalls
incurred during such Collection Period;
(iii) any interest and other income earned on the
investment of funds in the Collection Account and Interest Reserve
Account, but only to the extent not applied to offset losses on other
investments of funds in the Collection Account or Interest Reserve
Account, as applicable, and
(iv) any interest and other income earned on the
investment of funds in the Servicing Accounts, Reserve Accounts and
Lock-Box Accounts maintained by the Master Servicer, but only to the
extent not required to be paid to Mortgagors under applicable law or
the terms of the respective Mortgage Loan documents.
(b) As compensation for its activities hereunder, the
Special Servicer shall be entitled to receive the Special Servicing Fee with
respect to each Specially Serviced Mortgage Loan and each REO Mortgage Loan. As
to each Specially Serviced Mortgage Loan and each REO Mortgage Loan, the Special
Servicing Fee shall accrue on the related Stated Principal Balance of such
Mortgage Loan outstanding from time to time at the Special Servicing Fee Rate
and shall be computed based on the Stated Principal Balance as of the second
preceding Due Date of such Specially Serviced Mortgage Loan or REO Mortgage
Loan, and using the same day count convention as the related Mortgage Loan. The
Special Servicing Fee with respect to each Specially Serviced Mortgage Loan and
each REO Mortgage Loan shall cease to accrue if a Liquidation Event occurs in
respect thereof. As to each Specially Serviced Mortgage Loan and each REO
Mortgage Loan, earned but unpaid Special Servicing Fees shall be payable monthly
out of the same sources and at the same time (but separate from) Master
Servicing Fees payable to the Master Servicer in respect of such Specially
Serviced Mortgage Loan or REO Mortgage Loan.
As further compensation for its activities hereunder, the
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Mortgage Loan. As to each Corrected Mortgage Loan, the Workout
Fee shall be payable from, and shall be calculated by application of the Workout
Fee Rate to, each collection of interest and principal received on such Mortgage
Loan for so long as it remains a Corrected Mortgage Loan (including scheduled
payments, prepayments, balloon
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payments and payments at maturity). The Workout Fee with respect to any
Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event
occurs with respect thereto or if the related Mortgaged Property becomes an REO
Property, provided that a new Workout Fee will become payable if and when such
Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer
is terminated other than for cause or resigns in accordance with Section 8.24,
it shall retain the right to receive any and all Workout Fees payable in respect
of Mortgage Loans that became Corrected Mortgage Loans during the period that it
acted as Special Servicer and were still such at the time of such termination or
resignation (and the successor special servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
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 or any Liquidation Proceeds (other than
in connection with the purchase of any such Specially Serviced Mortgage Loan or
REO Property by any Person entitled to effect an optional termination of the
Trust pursuant to Section 10.01). 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. Notwithstanding anything herein to the
contrary, no Liquidation Fee will be payable from, or based upon the receipt of,
Liquidation Proceeds collected as a result of any purchase of a Specially
Serviced Mortgage Loan or REO Property described in the parenthetical to the
first sentence of this paragraph.
The Special Servicer shall be entitled to additional special
servicing compensation ("ADDITIONAL SPECIAL SERVICING COMPENSATION") in the form
of 100% of any modification fees and assumption fees relating to Specially
Serviced Mortgage Loans and, to the extent not otherwise applied to pay Advance
Interest as provided herein, Penalty Charges (to the extent accrued during the
period during which the Mortgage Loan is a Specially Serviced Mortgage Loan),
collected on Specially Serviced Mortgage Loans and REO Mortgage Loans, 50% of
any assumption fees collected on Mortgage Loans that are not Specially Serviced
Mortgage Loans, 100% of any modification fees on Mortgage Loans that are not
Specially Serviced Mortgage Loans (other than modification fees relating to
modifications made pursuant to Section 8.18(d)), and 100% of any extension fees,
but in each case only to the extent actually paid by the related Mortgagor and
to the extent that all amounts then due and payable with respect to the related
Mortgage Loan have been paid. The Special Servicer shall also be entitled to
investment income on amounts held in the REO Account pursuant to Section 8.19.
Notwithstanding the foregoing, any Penalty Charges actually
collected on the Specially Serviced Mortgage Loans shall be paid to the Special
Servicer only to the extent that they exceed the amount of Advance Interest that
the Trust Fund has previously been paid in connection with such Mortgage Loans.
(c) The Master Servicer and the Special Servicer shall
each be required to pay out of its own funds all overhead and general and
administrative expenses incurred by it in connection with its servicing
activities hereunder (including, without limitation, payment of any amount due
and owing to any Sub-Servicers retained by it and the deductibles for any
blanket policy obtained by it insuring against hazard losses pursuant to Section
8.5(b)), if and to the extent such expenses are not payable directly out of the
Collection Account, and neither the Master Servicer nor the Special Servicer, as
the case may be, shall be entitled to reimbursement except as expressly provided
in this Agreement. In the event that Rating Agency Confirmation is required in
connection with any exercise of rights by the Master Servicer or the Special
Servicer, as applicable, under any Mortgage Loan, the Master Servicer or Special
Servicer,
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as the case may be, shall use its reasonable efforts consistent with
the Servicing Standard to cause the related Mortgagor to pay any fee required by
the applicable Rating Agency for such confirmation, and if the Mortgagor does
not pay such fee, then it shall be paid by the Master Servicer as a Servicing
Advance.
SECTION 8.11. MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) The Master Servicer shall deliver to the Trustee and
the Special Servicer, no later than 2:00 p.m. Eastern time on the Report Date,
the Master Servicer Remittance Report with respect to the related Distribution
Date. The Special Servicer shall provide all information relating to Specially
Serviced Mortgage Loans and REO Properties to permit the Master Servicer to
satisfy its duties in this Section 8.11 on or before the date that is one
Business Day after the Determination Date.
(b) The Master Servicer shall deliver to the Trustee and
the Special Servicer within 30 days following each Master Servicer Remittance
Date a statement setting forth the status of the Collection Account as of the
close of business on such Master Servicer Remittance Date showing, for the
period covered by such statement, the aggregate of deposits of each type
provided in Section 5.1 in, and the aggregate of withdrawals of each type
provided in Section 5.2 from, the Collection Account.
SECTION 8.12. ANNUAL STATEMENT AS TO COMPLIANCE. The Master
Servicer and the Special Servicer shall each deliver to the Depositor, the
Operating Adviser (or if no Operating Adviser has been elected, the Majority
Certificateholder of the Controlling Class), the Rating Agencies and the Trustee
(and, in the case of the Special Servicer and the Master Servicer, to each
other) on or before April 30 of each year, an Officer's Certificate stating, as
to the signer thereof, that (a) a review of the activities of the Master
Servicer or the Special Servicer, as the case may be, during the preceding
calendar year or portion thereof and of the performance of the Master Servicer
or the Special Servicer, as the case may be, under this Agreement has been made
under such officer's supervision and (b) 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 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.
SECTION 8.13. ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
REPORT.On or before April 30 of each year beginning April 30, 2000, the Master
Servicer at its expense shall cause a firm of Accountants to furnish a statement
to the Depositor, the Operating Adviser (or if no Operating Adviser has been
elected, the Majority Certificateholder of the Controlling Class), the Rating
Agencies, the Special Servicer and the Trustee to the effect that (i) it has
obtained a letter of representation regarding certain matters from the
management of the Master Servicer, which includes an assertion that the Master
Servicer has complied with certain minimum mortgage loan servicing standards (to
the extent applicable to commercial and multifamily mortgage loans), identified
in the Uniform Single Attestation Program for Mortgage Bankers established by
the Mortgage Bankers Association of America, with respect to the servicing of
commercial and multifamily mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of commercial and multifamily mortgage loans by
Sub-Servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to
those Sub-Servicers.
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The Special Servicer will deliver to the Depositor, the
Operating Adviser (or if no Operating Adviser has been elected, the Majority
Certificateholder of the Controlling Class), the Trustee, the Rating Agencies
and the Master Servicer an annual accountants' report.
The Master Servicer and the Special Servicer, to the extent
applicable, shall each, with 90 days' prior written notice, use reasonable
efforts to cause the applicable Accountants to cooperate with the Depositor in
conforming any reports delivered pursuant to this Section 8.13 to requirements
imposed by the Securities and Exchange Commission on the Depositor in connection
with the Securities and Exchange Commission's issuance of a no-action letter
relating to the Depositor's reporting requirements in respect of the Trust Fund
pursuant to the Exchange Act.
SECTION 8.14. CERTAIN REPORTS REGARDING THE MORTGAGE LOANS
AND THE MORTGAGED PROPERTIES.
(a) On or before 3:00 p.m. New York time, on the Report
Date in each month, the Master Servicer shall deliver to the Trustee and the
Special Servicer a report in CSSA format containing information regarding the
Mortgage Loans as of the end of the related Collection Period, which report will
contain substantially the categories of information regarding the Mortgage Loans
set forth on Exhibit I hereto. The Master Servicer also maintains a site on the
World Wide Web at www.firstunion.com at which it intends to make available
certain information relating to the Mortgage Loans. Such information is expected
to include the Delinquent Loan Status Report, the Historical Loan Modification
Report, the Historical Loss Estimate Report, the REO Status Report, the Watch
List, the Comparative Financial Status Report, the CSSA loan setup file, the
CSSA Loan File, the CSSA Property File, and, as a convenience for interested
parties (and not in furtherance of the distribution thereof under the securities
laws) the Prospectus and this Prospectus Supplement.
(b) Reserved.
(c) No later than 2:00 p.m. New York time on the Master
Servicer Remittance Date, the Master Servicer shall deliver or cause to be
delivered to the Trustee, the Operating Adviser, the Special Servicer and the
Rating Agencies the following reports with respect to the Mortgage Loans (and,
if applicable, the related REO Properties), providing the required information
as of the Determination Date: (i) a Comparative Financial Status Report, (ii) a
Delinquent Loan Status Report; (iii) an Historical Loss Estimate Report; (iv) an
Historical Loan Modification Report; (v) an REO Status Report; and (vi) CSSA
Reports. Such reports shall be presented in writing and on a computer readable
medium reasonably acceptable to the Trustee. The information that pertains to
Specially Serviced Mortgage Loans and REO Properties reflected in such reports
shall be based solely upon the reports delivered by the Special Servicer to the
Master Servicer pursuant to Section 8.29. In the absence of manifest error, the
Master Servicer shall be entitled to conclusively rely upon, without
investigation or inquiry, the information and reports delivered to it by the
Special Servicer and any Mortgagor, and the Trustee shall be entitled to
conclusively rely upon the Master Servicer's reports and the Special Servicer's
reports without any duty or obligation to recompute, verify or recalculate any
of the amounts and other information stated therein. Any of such reports may
include any disclaimers the Master Servicer deems appropriate.
(d) The Master Servicer shall deliver or cause to be
delivered to the Trustee, the Operating Adviser, the Special Servicer and the
Rating Agencies upon request the following materials, in each case to the extent
that such materials or the information on which they are based have been
received by the Master Servicer:
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(i) At least annually by June 30, with respect to
each Mortgage Loan and REO Mortgage Loan, an Operating Statement
Analysis for the related Mortgaged Property or REO Property as of the
end of the preceding calendar year, together with copies of the
operating statements and rent rolls (but only to the extent the related
Mortgagor is required by the Mortgage to deliver, or otherwise agrees
to provide such information and, with respect to operating statements
and rent rolls for Specially Serviced Mortgage Loans and REO
Properties, only to the extent delivered by the Special Servicer) for
the related Mortgaged Property or REO Property as of the end of the
preceding fiscal year. The Master Servicer shall use its reasonable
efforts to obtain such annual operating statements and rent rolls with
respect to each of the Mortgage Loans other than Specially Serviced
Mortgage Loans or REO Mortgage Loans, which efforts shall include (if
such reports are required by the terms of the Mortgage Loans) a letter
sent to the related Mortgagor each quarter (followed up with telephone
calls) requesting such annual operating statements and rent rolls until
they are received to the extent such action is consistent with
applicable law and the terms of the Mortgage Loans. The Master Servicer
and the Special Servicer shall be entitled to rely conclusively on all
information provided by the Mortgagor and shall have no liability
arising directly or indirectly from the inaccuracy or incompleteness of
any information provided by the Mortgagor and shall have no duty to
verify the information provided by the Mortgagor.
(ii) Within thirty days after receipt by the Master
Servicer (or twenty days after receipt from the Special Servicer in the
case of a Specially Serviced Mortgage Loan or REO Property) of any
annual operating statements with respect to any Mortgaged Property or
REO Property, an NOI Adjustment Worksheet for such Mortgaged Property
(with the annual operating statements attached thereto as an exhibit).
The Master Servicer shall maintain one Operating Statement
Analysis report for each Mortgaged Property and REO Property (to the extent
prepared by and received from the Special Servicer in the case of any REO
Property or any Mortgaged Property constituting security for a Specially
Serviced Mortgage Loan). The Operating Statement Analysis report for each
Mortgaged Property (other than any such Mortgaged Property which is REO Property
or constitutes security for a Specially Serviced Mortgage Loan) is to be updated
by the Master Servicer and such updated report delivered to the Trustee on the
Master Servicer Remittance Date which is no earlier than thirty days after
receipt by the Master Servicer of updated operating statements for such
Mortgaged Property. On an annual basis, the Master Servicer will use the
"normalized" column from the NOI Adjustment Worksheet to update the Operating
Statement Analysis report and will use any operating statements received with
respect to any Mortgaged Property (other than any such Mortgaged Property which
is REO Property or constitutes security for a Specially Serviced Mortgage Loan)
to update the Operating Statement Analysis report for such Mortgaged Property,
such updates to be completed and copies thereof sent to the Trustee within
thirty days after receipt of the necessary information.
(e) No later than 1:00 p.m. New York time on the Master
Servicer Remittance Date, beginning in June 1999, the Master Servicer shall
prepare and deliver to the Trustee and the Special Servicer, a Watch List of all
Mortgage Loans that the Master Servicer has determined are in jeopardy of
becoming Specially Serviced Mortgage Loans. For this purpose, Mortgage Loans
that are in jeopardy of becoming Specially Serviced Mortgage Loans shall
include, without limitation: (i) Mortgage Loans having a current trailing
twelve-month Debt Service Coverage Ratio that is 80% or less of the trailing
twelve-month Debt Service Coverage Ratio as of the Cut-off Date or having a
current trailing twelve-month Debt Service Coverage Ratio that is less than
1.00x, (ii) Mortgage Loans as to which any required inspection of the related
Mortgaged Property conducted by the Master Servicer indicates a problem that
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the Master Servicer determines can reasonably be expected to materially
adversely affect the cash flow generated by such Mortgaged Property, (iii)
Mortgage Loans which have come to the Master Servicer's attention in the
performance of its duties under this Agreement (without any expansion of such
duties by reason hereof) that (A) any tenant occupying 25% or more of the space
in the related Mortgaged Property has vacated (without being replaced by a
comparable tenant and lease) or been the subject of bankruptcy or similar
proceedings or (B) relate to a borrower or an affiliate that is the subject of a
bankruptcy or similar proceeding, (iv) Mortgage Loans that are at least one full
Collection Period delinquent in payment, and (v) Mortgage Loans that are within
60 days of maturity. Any such Watch List may include any disclaimers the Master
Servicer deems appropriate.
The Special Servicer shall report to the Master Servicer any
of the foregoing events promptly upon the Special Servicer having knowledge of
such event. In addition, in connection with their servicing of the Mortgage
Loans, the Master Servicer and the Special Servicer shall provide to each other
and to the Trustee written notice of any event that comes to their knowledge
with respect to a Mortgage Loan or REO Property that the Master Servicer or the
Special Servicer, respectively, determines, in accordance with Servicing
Standards, would have a material adverse effect on such Mortgage Loan or REO
Property, which notice shall include an explanation as to the reason for such
material adverse effect.
(f) One Business Day after the Determination Date, the
Special Servicer shall deliver, or cause to be delivered, to the Master Servicer
and, upon the request of any of the Trustee, the Depositor or either Rating
Agency, to such requesting party, the following reports with respect to the
Specially Serviced Mortgage Loans (and, if applicable, the related REO
Properties), providing the required information as of the Due Date: (i) a
Delinquent Loan Status Report; (ii) an Historical Loss Estimate Report; (iii) an
Historical Loan Modification Report; (iv) an REO Status Report; (v) Comparative
Financial Status Reports with respect to all Specially Serviced Mortgage Loans;
and (vi) CSSA Reports. Such reports shall be presented in writing and on a
computer readable magnetic medium. Such information may be provided as part of
another CSSA report in lieu of these separate reports.
(g) The Special Servicer shall deliver or cause to be
delivered to the Master Servicer and, upon the request of any of the Trustee,
the Depositor or any Rating Agency, to such requesting party, the following
materials, in each case to the extent that such materials or the information on
which they are based have been received by the Special Servicer:
(i) Annually, on or before June 10 of each year,
commencing with June 10, 1999, with respect to each Specially Serviced
Mortgage Loan and REO Mortgage Loan, an Operating Statement Analysis
for the related Mortgaged Property or REO Property as of the end of the
preceding calendar year, together with copies of the operating
statements and rent rolls (but only to the extent the related Mortgagor
is required by the Mortgage to deliver, or otherwise agrees to provide
such information), for the related Mortgaged Property or REO Property
as of the end of the preceding calendar year. The Special Servicer
shall use its best reasonable efforts in accordance with the Servicing
Standard to obtain such annual operating statements and rent rolls with
respect to each Mortgaged Property constituting security for a
Specially Serviced Mortgage Loan and each REO Property, which efforts
shall include a letter sent to the related Mortgagor or other
appropriate party each quarter (followed up with telephone calls)
requesting such annual operating statements and rent rolls until they
are received to the extent that such action is consistent with
applicable law and the terms of applicable law and the terms of the
Specially Serviced Mortgage Loans.
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(ii) Within 10 days of receipt by the Special
Servicer of any annual operating statements with respect to any
Mortgaged Property relating to a Specially Serviced Mortgage Loan, or
at least six months of operating information with respect to any REO
Property, an NOI Adjustment Worksheet for such Mortgaged Property or
REO Property (with the annual operating statements attached thereto as
an exhibit).
The Special Servicer shall maintain one Operating Statement
Analysis report for each Mortgaged Property securing a Specially Serviced
Mortgage Loan and REO Property. The Operating Statement Analysis report for each
Mortgaged Property which constitutes security for a Specially Serviced Mortgage
Loan or is an REO Property is to be updated by the Special Servicer and such
updated report delivered to the Master Servicer within ten days after receipt by
the Special Servicer of updated operating statements for each such Mortgaged
Property. The Special Servicer will use the "normalized" column from the NOI
Adjustment Worksheet to update the Operating Statement Analysis report and will
use any operating statements received with respect to any Mortgaged Property
which constitutes security for a Specially Serviced Mortgage Loan or is an REO
Property to update the Operating Statement Analysis report for such Mortgaged
Property, such updates to be completed and copies thereof sent to the Master
Servicer within ten days after receipt of the necessary information.
(h) The Trustee shall be entitled to rely conclusively on
and shall not be responsible for the content or accuracy of any information
provided to it by the Master Servicer or the Special Servicer pursuant to this
Agreement.
(i) The Trustee shall provide or make available copies of
the reports received by it pursuant to Section 8.14(a) to the Depositor, HFCF,
PMCF, the Holders and each Rating Agency, subject to the provisions of Section
5.4(g).
(j) All reports prepared by the Master Servicer and
Special Servicer pursuant to this Section 8.14 shall be prepared, to the extent
applicable, in the format recommended by CSSA.
SECTION 8.15. CERTAIN AVAILABLE INFORMATION AND RELATED RIGHTS
OF THE MASTER SERVICER AND THE SPECIAL SERVICER.
(a) Subject to the restrictions described below (and
except to the extent not permitted by law or under any of the Mortgage Loan
documents), the Master Servicer and the Special Servicer shall each also afford
the Rating Agencies, the Depositor, the Trustee, the Fiscal Agent, the Special
Servicer, the Underwriters, and the Operating Adviser, and the Majority
Certificateholder of the Controlling Class upon reasonable notice and during
normal business hours, reasonable access to any and all additional relevant,
non-proprietary and non-attorney-client-privileged records and documentation in
its possession or under its control regarding the Mortgage Loans, REO Properties
and all accounts, insurance policies and other relevant matters relating to this
Agreement, and access to Servicing Officers of the Master Servicer or Special
Servicing Officers of the Special Servicer, as the case may be, responsible for
its obligations hereunder. Copies (or computer diskettes or other digital or
electronic copies of such information if reasonably available in lieu of paper
copies) of any and all of the foregoing items shall be made available by the
Master Servicer or the Special Servicer, as the case may be, upon request;
provided, however, that the Master Servicer and the Special Servicer shall each
be permitted to require payment by the requesting party (other than the Master
Servicer or Special Servicer, as applicable, the Depositor, the Trustee, the
Underwriters or either Rating Agency) of a sum sufficient to cover the
reasonable expenses actually incurred by the Master Servicer or the Special
Servicer, as the case may be, of providing access or copies (including
electronic or digital copies) of any such information requested in accordance
with the preceding sentence.
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(b) Nothing herein shall be deemed to require the Master
Servicer or Special Servicer to confirm, represent or warrant the accuracy of
(or to be liable or responsible for) any other Person's information or report,
included in any communication from the other (unless the Master Servicer and the
Special Servicer are the same Person) or from a Mortgagor. Neither the Master
Servicer nor the Special Servicer shall have any liability to the Depositor, the
Trustee, any Certificateholder, any Certificate Owner, the Underwriters, either
Rating Agency or any other Person to whom it delivers information pursuant to
this Section 8.15 or any other provision of this Agreement for federal, state or
other applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, the Trust (from amounts held in the Collection
Account from time to time) shall hold harmless and indemnify the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as the case may
be, from any loss or expense (including attorneys' fees) relating to or arising
from such claims.
(c) The Master Servicer and the Special Servicer shall
each produce the reports required of it under this Agreement; provided, however,
that neither the Master Servicer nor the Special Servicer shall be required to
produce any ad hoc non-standard written reports with respect to the Mortgage
Loans. In the event the Master Servicer or the Special Servicer elects to
provide such reports, it may require the Person requesting such report to pay a
reasonable fee to cover the costs of the preparation thereof. Requests for any
such report shall be made, and any such report shall be disseminated, through
the Trustee.
(d) In connection with providing access to or copies of
the items described in the subsections (a), (b) and/or (c) of this Section 8.15
or in Section 8.16, the Master Servicer, the Special Servicer and the Trustee
may each require: (a) in the case of Certificate Owners, a written confirmation
executed by the requesting Person, in form reasonably satisfactory to the Master
Servicer, the Special Servicer or the Trustee, as the case may be, generally to
the effect that such Person is a beneficial holder of Certificates, is
requesting the information solely for use in evaluating such Person's investment
in the Certificates and will otherwise keep such information confidential; and
(b) in the case of Prospective Investors, a written confirmation executed by the
requesting Person, in form reasonably satisfactory to the Master Servicer, the
Special Servicer or the Trustee, as the case may be, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential.
(e) The Master Servicer and the Special Servicer shall
each provide or cause to be provided to the OTS, the FDIC and any other federal
or state banking or insurance regulatory authority that may exercise authority
over any Certificateholder or Certificate Owner, access to any and all records
and other documentation regarding the Mortgage Loans and the Trust Fund within
its control that may be required by this Agreement or by applicable law. Such
access shall be afforded without charge but only upon reasonable prior written
request and during normal business hours at the offices of the Master Servicer
or the Special Servicer, as the case may be, designated by it. Nothing in this
Section 8.15(e) shall require the Master Servicer or the Special Servicer to
violate, in its judgment, any applicable law prohibiting disclosure of
information with respect to a Mortgagor, and the failure to provide access as a
result of such law shall not constitute a breach of this Agreement. The Master
Servicer or Special Servicer may require a requesting party to execute a
reasonable confidentiality agreement customary in the industry with respect to
such information.
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(f) The Master Servicer and the Special Servicer shall
each cooperate in providing the Rating Agencies with such other pertinent
information relating to the Mortgage Loans as is (or is required to be) in their
respective possession as the Rating Agencies may reasonably request. Any Holder
of a Privately Offered Certificate may, upon request to the Trustee (which may
be in the form of a standing request for as long as such Holder remains a Holder
of any such Certificates), obtain a copy of any report or other information (to
the extent the Trustee has such report or other information in its possession)
delivered to the Rating Agencies under this Agreement.
SECTION 8.16. RULE 144A INFORMATION. For so long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the Securities Act, each of the Master Servicer and the Special Servicer agrees
to provide to the Trustee, which in turn shall provide to any Holder,
Certificate Owner or Prospective Investor of such Certificates, upon the request
of such Holder, Certificate Owner or Prospective Investor, subject to the other
provisions of this Section 8.16 and the provisions of subsections (b), (c) and
(d) of Section 8.15, any information prepared by or otherwise in the possession
or under the control of the Master Servicer or the Special Servicer, as the case
may be, that has not already been delivered to the Trustee and that is required
to be provided to such Holder, Certificate Owner or Prospective Investor to
satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act,
including, without limitation, copies of the reports and information described
in subsection (a) of Section 8.15.
Any recipient of information provided pursuant to this Section
8.16 shall agree that such information shall not be disclosed or used for any
purpose other than the evaluation of an investment in the Certificates. The
Trustee shall be responsible for the delivery of the information requested
pursuant to this Section 8.16. As a condition to the Master Servicer or the
Special Servicer making any report or information available upon request to any
Person other than one of the other parties hereto, the Master Servicer or the
Special Servicer, as the case may be, may require that the recipient of such
information acknowledge that the Master Servicer or the Special Servicer, as the
case may be, may contemporaneously provide such information to the Depositor,
the Trustee, the Underwriters and/or the Certificateholders and Certificate
Owners. The Master Servicer and the Special Servicer will each be permitted to
require payment of a sum by the requesting party (other than the Rating
Agencies, the Depositor, the Trustee or the Underwriters) sufficient to cover
the reasonable costs and expenses of making such information available.
SECTION 8.17. INSPECTIONS; COLLECTION OF FINANCIAL STATEMENTS.
(a) The Master Servicer shall perform (or cause to be
performed) a physical inspection of each Mortgaged Property (other than
Mortgaged Properties constituting REO Properties or collateral for Specially
Serviced Mortgaged Loans) at such times and in such manner as are consistent
with the Servicing Standard, but in any event at least once every two years (or,
if the related Mortgage Loan has a current balance of more than $2,000,000, at
least once every year) provided that the Master Servicer will have no obligation
to inspect a Mortgaged Property required to be inspected by the Special Servicer
during such period. The Master Servicer shall promptly prepare (or cause to be
prepared) a written report of each such inspection detailing the condition of
the Mortgaged Property and specifying the existence of (i) any vacancy in the
Mortgaged Property evident from such inspection that the Master Servicer deems
material, (ii) any sale, transfer or abandonment of the Mortgaged Property
evident from such inspection, (iii) any adverse change in the condition or value
of the Mortgaged Property evident from such inspection that the Master Servicer
deems material, or (iv) any waste committed on the Mortgaged Property evident
from such inspection. The Master Servicer shall upon request deliver to the
Trustee, the Special Servicer and the Depositor a copy of each such written
report of the related
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inspection, and the Trustee shall upon written request deliver to the Holders of
the Privately Offered Certificates a copy of each such written report within 15
days of receipt of such report from the Master Servicer
(b) If any Mortgage Loan becomes a Specially Serviced
Mortgage Loan, then as soon as practicable (and in any event within 90 days
thereafter) the Special Servicer shall perform (or cause to be performed) a
physical inspection of each Mortgaged Property constituting collateral for such
Mortgage Loan (unless such Mortgaged Property had been inspected within the
prior three months), and the Special Servicer shall thereafter inspect such
Mortgaged Property at such times and in such manner as are consistent with the
Servicing Standard (but in any event at least once per calendar year). The cost
of such inspections of Specially Serviced Mortgage Loans shall be a Servicing
Advance. The Special Servicer shall promptly prepare (or cause to be prepared) a
written report of each such inspection detailing the condition of the Mortgaged
Property and specifying the existence of (i) any vacancy in the Mortgaged
Property evident from such inspection that the Special Servicer deems material,
(ii) any sale, transfer or abandonment of the Mortgaged Property evident from
such inspection, (iii) any adverse change in the condition or value of the
Mortgaged Property evident from such inspection that the Special Servicer deems
material, or (iv) any waste committed on the Mortgaged Property evident from
such inspection. The Special Servicer shall deliver to the Master Servicer, the
Trustee, the Operating Adviser and the Depositor a copy of each such written
report within 15 days of the related inspection, and the Trustee shall upon
written request deliver to the Holders of the Privately Offered Certificates a
copy of each such written report.
(c) The Master Servicer (or, in the case of Specially
Serviced Mortgage Loans, the Special Servicer) shall make reasonable efforts to
collect promptly from each Mortgagor quarterly and annual operating statements
and rent rolls of the related Mortgaged Property, and financial statements of
such Mortgagor, if delivery of such items is required pursuant to the terms of
the related Mortgage. In addition, the Special Servicer shall use reasonable
efforts to obtain quarterly and annual operating statements and rent rolls with
respect to each REO Property. The Master Servicer and Special Servicer shall,
upon request, each deliver copies of the collected items to the other such party
and the Trustee, and the Trustee shall deliver copies of such items to the
Depositor and Holders of the Privately Offered Certificates upon written
request.
SECTION 8.18. MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS
AND CONSENTS.
(a) Subject to the limitations of Section 12.4 hereof,
the Special Servicer and Master Servicer, as applicable, shall have the
following powers:
(i) The Special Servicer in accordance with the
Servicing Standard, may agree to any modification, waiver, amendment or
consent of or relating to any non-Money Term or may extend the maturity
date of any Balloon Mortgage Loan that is not a Specially Serviced
Mortgage Loan to a date that is not more than 60 days following the
original Maturity Date and not later than two years prior to the Rated
Final Distribution Date (or if secured by a ground lease, not later
than the date that is 10 years prior to the end of such ground lease),
if in the Special Servicer's sole judgment exercised in good faith and
in accordance with the Servicing Standard (and evidenced by an
Officer's Certificate), a default in the payment of the Balloon Payment
is reasonably foreseeable and such extension is reasonably likely to
produce a greater recovery on a net present value basis than
liquidation of such Mortgage Loan. The Special Servicer shall process
all such extensions and shall be entitled to (as additional servicing
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compensation) 100% of any extension fees collected from a Mortgagor
with respect to any such extension.
The Master Servicer may modify or amend the terms of
any Mortgage Loan without the consent of the Special Servicer in order
to (i) cure any ambiguity therein or (ii) correct or supplement any
provisions therein which may be inconsistent with any other provisions
therein or correct any error, provided that such modification or
amendment would not cause an Adverse REMIC Event to occur. The Master
Servicer shall promptly notify the Special Servicer of any such
modification or amendment. Other than as set forth in the preceding
sentence, the Master Servicer shall not agree to any modification or
amendment of a Mortgage Loan or any waiver or consent (other than
immaterial waivers and consents made in the ordinary course of
business, and pursuant to Section 8.18(d)).
(ii) The Special Servicer may require, in its
discretion, as a condition to granting any request by a Mortgagor for
any consent, modification, waiver or amendment, that such Mortgagor pay
to the Special Servicer a reasonable and customary modification fee to
the extent permitted by law. The Special Servicer may charge the
Mortgagor for any costs and expenses (including attorneys' fees)
incurred by the Special Servicer in connection with any request for a
modification, waiver or amendment. The failure or inability of the
Mortgagor to pay any such costs and expenses shall not impair the right
of the Special Servicer to cause such costs and expenses, and interest
thereon at the Advance Rate, to be paid or reimbursed by the Trust as a
Servicing Advance (to the extent not paid by the Mortgagor).
(iii) Each of the Special Servicer and the Master
Servicer, as applicable, shall notify the Trustee of any modification,
waiver or amendment of any term of any Mortgage Loan permitted by it
under this Section and the date thereof, and shall deliver to the
Trustee for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or
amendment, promptly following the execution thereof except to the
extent such documents have been submitted to the applicable recording
office, in which event the Special Servicer or the Master Servicer, as
applicable, shall promptly deliver copies of such documents to the
Trustee. Upon request, the Trustee shall deliver copies of such
documents to the Holders of the Privately Offered Certificates within
15 days of receipt by the Trustee thereof.
(b) Subject to the limitation of Section 12.4 hereof, the
Special Servicer, in accordance with the Servicing Standard, shall have the
following additional powers:
(i) The Special Servicer may enter into a
modification, waiver or amendment (including, without limitation, the
substitution or release of collateral or the pledge of additional
collateral) of the terms of a Specially Serviced Mortgage Loan,
including any modification, waiver or amendment to (a) reduce the
amounts owing under any Specially Serviced Mortgage Loan by forgiving
principal, accrued interest or any Yield Maintenance Charge or
Prepayment Premium, (b) reduce the amount of the Monthly Payment on any
Specially Serviced Mortgage Loan, including by way of a reduction in
the related Mortgage Rate, (c) forebear in the enforcement of any right
granted under any Mortgage Note or Mortgage relating to a Specially
Serviced Mortgage Loan, (d) extend the Maturity Date of any Specially
Serviced Mortgage Loan and/or (e) accept a principal prepayment on any
Specially Serviced Mortgage Loan during any period during which
voluntary Principal Prepayments are prohibited, provided that (1) the
related Mortgagor is in default with respect to the Specially Serviced
Mortgage Loan or, in the judgment of the Special Servicer, such default
is reasonably foreseeable, (2) in the
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reasonable judgment of the Special Servicer such modification would
increase the recovery on the Mortgage Loan to Certificateholders on a
net present value basis (the relevant discounting of amounts that will
be distributable to Certificateholders to be performed at the related
Mortgage Rate) and (3) such modification, waiver or amendment would not
cause an Adverse REMIC Event to occur.
In no event shall the Special Servicer (i) extend the Maturity
Date of a Specially Serviced Mortgage Loan beyond the date that is the earlier
of (a) five years from the date of such modification, and (b) two years prior to
the Rated Final Distribution Date; (ii) if the Specially Serviced Mortgage Loan
is secured by a ground lease, extend the Maturity Date of such Specially
Serviced Mortgage Loan beyond a date that is 10 years prior to the expiration of
the term of such ground lease; (iii) reduce the Mortgage Rate of a Specially
Serviced Mortgage Loan to a rate below the then-prevailing interest rate for
comparable loans at the time of such modification, as determined by the Special
Servicer, for a period exceeding 36 months from the date of such modification,
provided that the Special Servicer shall thereafter be permitted to so reduce
the Mortgage Rate for successive 12-month periods if the Operating Adviser
consents thereto in writing; or (iv) defer interest due on any Specially
Serviced Mortgage Loan in excess of 10% of the Stated Principal Balance of such
Specially Serviced Mortgage Loan or defer the collection of interest on any
Specially Serviced Mortgage Loan without accruing interest on such deferred
interest at a rate at least equal to the Mortgage Rate of such Specially
Serviced Mortgage Loan.
Notwithstanding the foregoing, if a Mortgage Loan is a Balloon
Loan that has failed to make the Balloon Payment at its scheduled maturity, and
such Balloon Loan is not a Specially Serviced Mortgage Loan (other than by
reason of failure to make the Balloon Payment) and has not been delinquent in
the preceding 12 months (other than with respect to the Balloon Payment), then
in addition to the other alternatives specified above, the Special Servicer may
make up to three one-year extensions at the existing Mortgage Rate for such
Mortgage Loan; provided that in no event shall any such extension extend beyond
the date that is two years prior to the Rated Final Distribution Date (or if
secured by a ground lease, not later than the date that is 10 years prior to the
expiration of such ground lease). The Special Servicer shall process all
extensions and shall be entitled as additional compensation to 100% of any
extension fees collected from a Mortgagor with respect to such extension.
The determination of the Special Servicer contemplated by
clause (2) of the proviso to the first paragraph of this Section 8.18(b)(i) and
clause (ii) of the second paragraph of this Section 8.18(b)(i) shall be
evidenced by an Officer's Certificate to such effect delivered to the Trustee
and the Master Servicer and describing in reasonable detail the basis for the
Special Servicer's determination. The Special Servicer shall append to such
Officer's Certificate any information, including but not limited to income and
expense statements, rent rolls, property inspection reports and appraisals, that
support such determination.
(ii) In the event the Special Servicer intends to
permit a Mortgagor to substitute collateral for all or any portion of a
Mortgaged Property pursuant to Section 8.18(b)(i) or pledge additional
collateral for the Mortgage Loan pursuant to Section 8.18(b)(i), if the
security interest of the Trust in such collateral would be perfected by
possession, or if such collateral requires special care or protection,
then prior to agreeing to such substitution or addition of collateral,
the Special Servicer shall make arrangements for such possession, care
or protection, and prior to agreeing to such substitution or addition
of collateral (or such arrangement for possession, care or protection)
shall obtain the prior written consent of the Trustee with respect
thereto (which consent shall not be unreasonably withheld, delayed or
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conditioned); provided, however, that any such substitution or addition
of collateral shall require Rating Agency Confirmation; and provided
further, that the Trustee shall not be required (but has the option) to
consent to any substitution or addition of collateral or to hold any
such collateral which will require the Trustee to undertake any
additional duties or obligations or incur any additional expense. In
the event that the Master Servicer or the Special Servicer intends to
permit a Mortgagor to release any portion of a Mortgaged Property from
the lien of the related Mortgage, then prior to agreeing to such
release, but subject to its compliance with the terms of the Mortgage
Loan documents, the Master Servicer or the Special Servicer shall
require Rating Agency Confirmation and otherwise comply with the
provisions of Section 12.1(i) hereto.
(iii) The Special Servicer will promptly deliver to
the Master Servicer, the Operating Adviser (or if no Operating Adviser
has been elected, the Majority Certificateholder of the Controlling
Class), the Rating Agencies and the Trustee a notice, specifying any
such modifications, waivers or amendments, such notice identifying the
affected Specially Serviced Mortgage Loan. Such notice shall be
delivered to the Trustee and shall set forth the reasons for such
waiver, modification, or amendment (including, but not limited to,
information such as related income and expense statements, rent rolls,
occupancy status, property inspections, and an internal or external
appraisal performed in accordance with MAI standards and methodologies
(and, if done externally, the cost of such appraisal shall be
recoverable as a Servicing Advance subject to the provisions of Section
4.2 hereof)). The Special Servicer shall also deliver to the Trustee
(or the Custodian), for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification,
waiver or amendment promptly following the execution thereof.
(iv) No fee described in this Section shall be
collected by the Special Servicer from the Mortgagor (or on behalf of
the Mortgagor) in conjunction with any consent or any modification,
waiver or amendment of the Mortgage Loan if the collection of such fee
would cause such consent, modification, waiver or amendment to be a
"significant modification" of the Mortgage Note within the meaning of
Treasury Regulation Section 1.860G-2(b). Subject to the foregoing, the
Special Servicer shall use its reasonable efforts, to collect any
modification fees and other expenses connected with a permitted
modification of a Mortgage Loan from the Mortgagor. The inability of
the Mortgagor to pay any costs and expenses of a proposed modification
shall not impair the right of the Special Servicer, the Master Servicer
or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel
referred to in this Section).
(v) Reserved.
(vi) Notwithstanding anything herein to the contrary,
the Special Servicer shall not be permitted to take or refrain from
taking any action pursuant to instructions from the Operating Adviser
that would cause it to violate any term or provision of this Agreement,
including the REMIC Provisions and the Servicing Standard.
(c) The Master Servicer (after consultation with the
Special Servicer) or Special Servicer shall be permitted, in its discretion, to
waive all or any accrued Excess Interest if, prior to the related maturity date,
the related borrower has requested the right to prepay the Mortgage Loan in full
together with all payments required by the Mortgage Loan in connection with such
prepayment except for all or a portion of accrued Excess Interest, provided that
the Master Servicer or Special Servicer, as applicable, determines that (i) in
the absence of the waiver of such Excess Interest, there is a reasonable
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likelihood that the Mortgage Loan will not be paid in full on the related
Maturity Date and (ii) waiver of the right to such accrued Excess Interest is
reasonably likely to produce a greater payment in the aggregate to
Certificateholders on a net present value basis than a refusal to waive the
right to such Excess Interest. Any such waiver shall not be effective until such
prepayment is tendered.
(d) Subject to the limitations set forth in this Section
8.18, for any Mortgage Loan other than a Specially Serviced Mortgage Loan, the
Master Servicer shall be responsible for any request by a Mortgagor for the
consent of the mortgagee for a modification, waiver or amendment of any term
with respect to:
(i) Approving routine leasing activity (including any
subordination, standstill and attornment agreements)
with respect to leases for less than the lesser of
(a) 30,000 square feet and (b) 20% of the related
Mortgaged Property;
(ii) Approving a change of the property manager at the
request of the related Mortgagor; provided that the
successor property manager is not affiliated with
the Mortgagor and is nationally or regionally
recognized manager of similar properties;
(iii) Approving any waiver affecting the timing of receipt
of financial statements from any Mortgagor, provided
that such financial statements are delivered no less
than quarterly and within 60 days of the end of the
calendar quarter;
(iv) Approving annual budgets for the related Mortgaged
Property, provided that no such budget (1) provides
for the payment of operating expenses in an amount
equal to more than 110% of the amounts budgeted
therefor for the prior year or (2) provides for the
payment of any material expenses to any affiliate of
the Mortgagor (other than the payment of a
management fee to any property manager if such
management fee is no more than the management fee in
effect on the Cut-off Date); and
(v) Subject to other restrictions in this Agreement
regarding Principal Prepayments, waiving any
provision of a Mortgage Loan requiring a specified
number of days' notice prior to a Principal
Prepayment.
(e) With respect to the Anticipated Repayment Date Loans
secured by the Mortgaged Properties entitled
Somerset Grove II (Control #2),
Springfield--Bressmer-Mendenhall (Control #16),
Springfield--Concordia Campus (Control #19),
Prescott E. Bloom Building (Control #6.10), Illinois
Department of Transportation Annex (Control #6.20),
Cordova Crossing--Sports Authority (Control #80),
Cordova Crossing--Linens n Things (Control #101),
the Master Servicer agrees that it shall not enforce
against the Mortgagor any right under the related
Mortgage Loan documents to payment of interest
thereon at a rate in excess of 200 basis points
above the related initial Mortgage Rate.
SECTION 8.19. TITLE TO REO PROPERTY.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued in the name of the Trustee or its nominee on
behalf of the Certificateholders. The Special Servicer, on behalf of the Trust
Fund, shall in accordance with Section 8.31 attempt to sell any REO
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Property for cash by the close of the third taxable year of the REMIC following
the taxable year in which the Trust Fund acquires ownership of such REO Property
for purposes of Section 860G(a)(8) of the Code (such date, the "REO SALE
DEADLINE"), unless the Special Servicer either (i) applies for, more than 60
days prior to the REO Sale Deadline, and is subsequently granted an extension of
time (an "REO EXTENSION") by the Internal Revenue Service to sell such REO
Property, or (ii) obtains for the Trustee an Opinion of Counsel, addressed to
the Trustee and the Special Servicer, to the effect that the holding by the
Trust Fund of such REO Property subsequent to the REO Sale Deadline will not
result in the imposition of taxes on "prohibited transactions" of REMIC I, REMIC
II or REMIC III as defined in Section 860F of the Code or cause REMIC I, REMIC
II or REMIC III to fail to qualify as a REMIC at any time that any Certificates
are outstanding. If the Special Servicer is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel contemplated by clause (ii) of the immediately preceding
sentence, the Special Servicer shall attempt to sell such REO Property within
such period beyond the REO Sale Deadline as is permitted by such REO Extension
or is contemplated by such Opinion of Counsel, as the case may be. Any expense
incurred by the Special Servicer in connection with its being granted the REO
Extension contemplated by clause (i) of the second preceding sentence or its
obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, shall be an expense of the Trust Fund payable out of the
Collection Account pursuant to Section 5.2.
(b) The Special Servicer shall segregate and hold all
revenues received by it with respect to any REO Property separate and apart from
its own funds and general assets and shall establish and maintain with respect
to any REO Property a segregated custodial account (each, an "REO Account"),
each of which shall be an Eligible Account and shall be entitled "LaSalle Bank
National Association, as Trustee for the Holders of Heller Financial Commercial
Mortgage Asset Corp., Commercial Mortgage Pass-Through Certificates, Series 1999
PH-1, REO Account." The Special Servicer shall be entitled to withdraw for its
account any interest or investment income earned on funds deposited in an REO
Account. The Special Servicer shall deposit or cause to be deposited in the REO
Account within one Business Day after receipt all REO Income, and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
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;
(iii) any ground rents in respect of such REO
Property; and
(iv) all costs and expenses necessary to maintain,
protect, manage, operate, repair, sell or restore such REO Property.
To the extent that amounts on deposit in the related REO
Account are insufficient for the purposes set forth in clauses (i)-(iv) above
with respect to such REO Property, the Master Servicer (at the direction of the
Special Servicer) shall advance from its own funds as a Servicing Advance such
amount as is necessary for such purposes unless such advances would, if made,
constitute Nonrecoverable Advances; provided, however, that the Master Servicer
(at the direction of the Special Servicer) shall make any such Servicing Advance
if it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings and such advance shall be deemed to constitute
a Nonrecoverable Servicing Advance.
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The Special Servicer shall withdraw from each REO Account and
remit to the Master Servicer for deposit into the Collection Account on a
monthly basis prior to or on the related Due Date the REO Income received or
collected from each REO Property (net of expenses), except that in determining
the amount of such REO Income, the Special Servicer may retain in each REO
Account reasonable reserves for repairs, replacements and necessary capital
improvements and other related expenses.
Funds in the REO Account may be invested and, if invested,
shall be invested by, and at the risk of, the Special Servicer in Eligible
Investments selected by the Special Servicer which shall mature, unless payable
on demand, not later than the Business Day immediately preceding the day such
funds are required to be withdrawn, and any such Eligible Investment shall not
be sold or disposed of prior to its maturity unless payable on demand. All such
Eligible Investments shall be made in the name of "Lennar Partners, Inc., in
trust for LaSalle Bank National Association, as Trustee for the Holders of the
Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1." None of the Depositor, the
Mortgagors, the Master Servicer or the Trustee shall be liable for any loss
incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment (to the extent not needed to offset losses from other investments)
shall be paid to the Special Servicer as Additional Special Servicing
Compensation and shall be subject to its withdrawal at any time from time to
time. The amount of any losses incurred in respect of any such investments shall
be for the account of the Special Servicer which shall deposit the amount of
such loss (to the extent not offset by income from other investments) in the REO
Account out of its own funds no later than the next succeeding Master Servicer
Remittance Date.
Except as expressly provided otherwise in this Agreement, if
any default occurs in the making of a payment due under any Eligible Investment,
or if a default occurs in any other performance required under any Eligible
Investment, the Trustee or the Special Servicer may take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings; provided, however, that if the
Special Servicer shall have deposited in the REO Account an amount equal to all
amounts due under any such Eligible Investment (net of anticipated income or
earnings thereon that would have been payable to the Special Servicer as
additional servicing compensation), the Special Servicer shall have the sole
right to enforce such payment or performance.
SECTION 8.20. 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, in its good faith and
reasonable judgment, 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
would be subject to the tax imposed on "prohibited transactions" under
Section 860F of the Code (either such tax referred to herein as an "REO
TAX"), then such Mortgaged Property may be Directly Operated by the
Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as
REO Property could result in income from such Mortgaged Property that
would be subject to an REO Tax, but that a
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lease of such Mortgaged Property to another party to operate such
Mortgaged Property, or the performance of some services by an
Independent Contractor with respect to such Mortgaged Property, or
another method of operating such Mortgaged Property would not result in
income subject to an REO Tax, then the Special Servicer may (provided
that, in the good faith and reasonable judgment of the Special
Servicer, it is commercially feasible) acquire such Mortgaged Property
as REO Property and so lease or operate such REO Property; or
(iii) Directly Operating such Mortgaged Property as
REO Property could result in income subject to an REO Tax and, in the
good faith and reasonable judgment of the Special Servicer, that no
commercially feasible means exists to operate such Mortgaged Property
as REO Property without the Trust incurring or possibly incurring an
REO Tax on income from such Mortgaged Property, then the Special
Servicer shall deliver to the Trustee, in writing, a proposed plan (the
"PROPOSED PLAN") to manage such Mortgaged Property as REO Property.
Such plan shall include potential sources of income, and to the extent
commercially feasible, estimates of the amount of income from each such
source. Within three Business Days after receipt of such plan, the
Trustee shall consult with the Special Servicer and shall, within a
reasonable time thereafter, 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 Trustee shall (to the maximum extent 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 Trustee, 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 REO Property
in a manner that would not result in the imposition of an REO Tax on
the income derived from such REO Property.
The Special Servicer's decision as to how each REO Property
shall be managed and operated shall in any event be based on the good faith and
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard, as to which means would (to the extent commercially feasible) maximize
the net after-tax REO Income received by the Trust with respect to such REO
Property without materially and adversely affecting the Special Servicer's
ability to sell such REO Property in accordance with this Agreement. Both the
Special Servicer and the Trustee may consult with counsel knowledgeable in such
matters at the expense of the Trust Fund in connection with determinations
required under this Section 8.20(a). Neither the Special Servicer nor the
Trustee 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 reasonable
exercise of their discretion while performing their respective responsibilities
under this Section 8.20(a) or, to the extent it relates to federal income tax
consequences for the Trust, Section 8.20(b) below. Nothing in this Section
8.20(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 8.31.
(b) If title to any REO Property is acquired, the Special
Servicer or an Independent Contractor chosen by 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 result in the
receipt by the Trust of any "income from non-permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC
Event. Except as otherwise expressly provided herein, the Special Servicer shall
not enter into any lease, contract or other agreement that causes REMIC I to
receive, and (unless required to do so under any lease, contact or agreement to
which the Special Servicer or the Trust may become a party or a
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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 REMIC I 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 in the
best interests of and for the benefit of the Certificateholders in accordance
with the Servicing Standard (as determined by the Special Servicer in its good
faith and reasonable judgment).
(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 an expense of the Trust, payable out of related REO Income)
shall be reasonable and customary in light of the nature and locality
of the REO Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor (A) pay all
costs and expenses incurred in connection with the operation and
management of such REO Property, including, without limitation, those
listed in subsection (b) of this Section 8.20 and (B) remit all related
REO Income collected (net of its fees and such costs and expenses) to
the Special Servicer upon receipt;
(iv) none of the provisions of this Section 8.20(c)
relating to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special Servicer
of any of its duties and obligations hereunder with respect to the
operation and management of any such REO Property; and
(v) the Special Servicer shall be obligated with
respect thereto to the same extent as if it alone were performing all
duties and obligations in connection with the operation and management
of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
SECTION 8.21. ADDITIONAL OBLIGATIONS OF THE MASTER SERVICER.
(a) The Master Servicer and the Special Servicer shall
each deliver to the other and to the Trustee (for inclusion in the Mortgage
File) copies of all Appraisals, environmental reports and engineering reports
(or, in each case, updates thereof) obtained with respect to any Mortgaged
Property or REO Property.
(b) The Master Servicer shall deliver to the Trustee for
deposit in the Distribution Account on each P&I Advance Date, without any right
of reimbursement therefor, an amount equal to the lesser of (i) the excess, if
any, of all Prepayment Interest Shortfalls over all Prepayment Interest
Excesses, in each case resulting from Principal Prepayments received in respect
of the Mortgage Pool during the most recently ended Collection Period, and (ii)
that portion of the aggregate Master Servicing
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Fees received by the Master Servicer during such Collection Period calculated in
respect of all Mortgage Loans at a rate of 0.02% per annum; provided, however,
that notwithstanding the foregoing provisions, the Master Servicer shall pay any
Prepayment Interest Shortfall created by its failure to enforce any provision in
the Mortgage Loan documents that requires any prepayment to be made only on the
applicable Due Date.
SECTION 8.22. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE MASTER SERVICER AND THE SPECIAL SERVICER.
(a) (i) The Master Servicer, in its capacity as Master
Servicer hereunder, hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor, as of the Closing
Date, that:
(A) the Master Servicer is a national
banking association, duly organized and validly existing, and
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, except where the
failure to so qualify or comply would not materially adversely
affect the Master Servicer's ability to perform its
obligations hereunder in accordance with the terms of this
Agreement;
(B) the Master Servicer has the full power
and authority to execute, deliver, perform, and to enter into
and consummate all transactions and obligations contemplated
by this Agreement. The Master Servicer has duly and validly
authorized the execution, delivery and performance of this
Agreement and this Agreement, assuming the due authorization,
execution and delivery thereof by the other parties hereto,
evidences the valid and binding obligation of the Master
Servicer enforceable against the Master Servicer in accordance
with its terms subject, as to enforcement of remedies, (A) to
applicable bankruptcy, reorganization, insolvency, moratorium,
receivership and other similar laws affecting creditors'
rights generally as from time to time in effect, (B) to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law) and (C) public policy considerations underlying the
securities laws to the extent that such considerations limit
the enforceability of the provisions of the Agreement that
purport to provide for indemnification for securities law
violations;
(C) the execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby, and the fulfillment of or compliance with the terms
and conditions of this Agreement on the part of the Master
Servicer will not (A) result in a breach of any term or
provision of its organizational documents or (B) conflict
with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material
agreement or instrument to which it is a party or by which it
may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over it, which would materially and
adversely affect its ability to perform its obligations under
this Agreement;
(D) there is no litigation pending or, to
the Master Servicer's knowledge, threatened against it, the
outcome of which would, if adversely determined, reasonably be
expected to materially and adversely affect the execution,
delivery and performance by, or the enforceability against,
the Master Servicer of this Agreement or
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its ability to service the Mortgage Loans or to perform any of
its other obligations hereunder in accordance with the terms
hereof;
(E) no consent, approval, authorization,
qualification, registration, filing, notice or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Master Servicer of,
or compliance by the Master Servicer with, this Agreement, or
the consummation of the transactions contemplated hereby,
other than any such consents, approvals, authorizations,
qualifications, registrations, filings, notices or orders as
have been obtained or made or where the lack of such consent,
approval, authorization, qualification, registration, filing,
notice or order would not have a material adverse effect on
the performance of the Master Servicer under this Agreement;
(F) the performance of the services by the
Master Servicer contemplated by this Agreement are in the
ordinary course of business of the Master Servicer; and
(G) the Master Servicer hereby covenants, to
its best knowledge, which may be based upon information
obtained from vendors who have responded to Master Servicer's
supplier inquiries and/or from information obtained by Master
Servicer from sources which Master Servicer reasonably
believes are reliable, that by August 31, 1999, any
custom-made software or hardware designed or purchased or
licensed by Master Servicer, which 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 August 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.
(ii) It is understood that the representations and
warranties set forth in this Section 8.22(a) shall survive the
execution and delivery of this Agreement.
(iii) Upon discovery by any of the parties hereto of
a breach of any of the foregoing representations and warranties that
materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such
breach shall give prompt written notice to each of the other parties
hereto.
(iv) Any successor master servicer shall be deemed to
have made, as of the date of its succession, each of the
representations set forth in Section 8.22(a)(i), subject to such
appropriate modifications to the representation and warranty set forth
in Section 8.22(a)(i)(A) to accurately reflect such successor's
jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
(b) (i) The Special Servicer, in its capacity as Special
Servicer hereunder, hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor, as of the Closing
Date, that:
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(A) the Special Servicer is duly organized,
validly existing and in good standing as a corporation under
the laws of the State of Florida, and 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, except where the failure to so qualify
or comply would not materially adversely affect the Special
Servicer's ability to perform its obligations hereunder in
accordance with the terms of this Agreement;
(B) the Special Servicer has the full power
and authority to execute, deliver, perform, and to enter into
and consummate all transactions and obligations contemplated
by this Agreement. The Special Servicer has duly and validly
authorized the execution, delivery and performance of this
Agreement and this Agreement, assuming the due authorization,
execution and delivery thereof by the other parties hereto,
evidences the valid and binding obligation of the Special
Servicer enforceable against the Special Servicer in
accordance with its terms subject, as to enforcement of
remedies, (A) to applicable bankruptcy, reorganization,
insolvency, moratorium, receivership and other similar laws
affecting creditors' rights generally as from time to time in
effect, (B) to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and (C) public policy considerations
underlying the securities laws to the extent that such
considerations limit the enforceability of the provisions of
the Agreement that purport to provide for indemnification for
securities law violations;
(C) the execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby, and the fulfillment of or compliance with the terms
and conditions of this Agreement on the part of the Special
Servicer will not (A) result in a breach of any term or
provision of its charter or by-laws or (B) conflict with,
result in a breach, violation or acceleration of, or result in
a default under, the terms of any other material agreement or
instrument to which it is a party or by which it may be bound,
or any law, governmental rule, regulation, or judgment, decree
or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over it, which would materially and adversely affect its
ability to perform its obligations under this Agreement;
(D) there is no litigation pending or, to
the Special Servicer's knowledge, threatened against it, the
outcome of which would, if adversely determined, reasonably be
expected to materially and adversely affect the execution,
delivery and performance by, or the enforceability against,
the Special Servicer of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(E) no consent, approval, authorization,
qualification, registration, filing, notice or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Special Servicer
of, or compliance by the Special Servicer with, this
Agreement, or the consummation of the transactions
contemplated hereby, other than any such consents, approvals,
authorizations, qualifications, registrations, filings,
notices or orders as have been obtained or made or where the
lack of such consent, approval, authorization, qualification,
registration, filing,
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notice or order would not have a material adverse effect on
the performance of the Special Servicer under this Agreement;
and
(F) the performance of the services by the
Special Servicer contemplated by this Agreement are in the
ordinary course of business of the Special Servicer.
(G) The Special Servicer hereby covenants,
to its best knowledge, which may be based upon information
obtained from vendors who have responded to Special Servicer's
supplier inquiries and/or from information obtained by Special
Servicer from sources which Special Servicer reasonably
believes are reliable, that by August 31, 1999, any
custom-made software or hardware designed or purchased or
licensed by Special Servicer, which Special 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 August 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 Special Servicer properly exchange date data.
(ii) It is understood that the representations and
warranties set forth in this Section 8.22(b) shall survive the
execution and delivery of this Agreement.
(iii) Upon discovery by any of the parties hereto of
a breach of any of the foregoing representations and warranties that
materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such
breach shall give prompt written notice to each of the other parties
hereto.
(iv) Any successor special servicer shall be deemed
to have made, as of the date of its succession, each of the
representations set forth in Section 8.22(b)(i), subject to such
appropriate modifications to the representation and warranty set forth
in Section 8.22(b)(i)(A) to accurately reflect such successor's
jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 8.23. MERGER OR CONSOLIDATION. Any Person into which
the Master Servicer or the Special Servicer may be merged or consolidated or to
which the Master Servicer or the Special Servicer has transferred all or
substantially all of its servicing assets, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer or the Special Servicer shall be a party, or any Person succeeding to
the business of the Master Servicer or the Special Servicer, shall be the
successor of the Master Servicer or the Special Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, that Rating Agency Confirmation
shall have been obtained with respect to such merger, consolidation, or
succession.
SECTION 8.24. RESIGNATION OF MASTER SERVICER OR SPECIAL
SERVICER.
(a) Except as otherwise provided in Section 8.24(b) or
8.25 hereof, neither the Master Servicer nor the Special Servicer shall resign
from the obligations and duties hereby imposed on
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it, unless there is 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
so causing such conflict being of a type and nature carried on by it at the date
of this Agreement). Any such determination permitting the resignation of the
Master Servicer or the Special Servicer shall be evidenced by an Opinion of
Counsel to such effect delivered to the Trustee. No such resignation shall
become effective until a successor servicer designated by the Trustee, with the
consent of the Depositor, shall have assumed the Master Servicer's or Special
Servicer's, as the case may be, responsibilities and obligations under this
Agreement and Rating Agency Confirmation shall have been obtained. Notice of
such resignation shall be given promptly by the Master Servicer or the Special
Servicer, as the case may be, to the Trustee.
(b) The Master Servicer and the Special Servicer may each
resign from the obligations and duties imposed on it, upon 30 days notice to the
Trustee, provided that (i) a successor servicer (x) is available, (y) has assets
of at least $15,000,000 and (z) is willing to assume the obligations,
responsibilities, and covenants to be performed hereunder by the resigning party
on substantially the same terms and conditions, and for not more than equivalent
compensation, to that herein provided; (ii) the resigning party bears all costs
associated with its resignation and the transfer of servicing; and (iii) Rating
Agency Confirmation is obtained with respect to such servicing transfer, as
evidenced by a letter delivered to the Trustee by each Rating Agency.
SECTION 8.25. ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER
SERVICER OR THE SPECIAL SERVICER. The Master Servicer and the Special Servicer
shall each have the right without the prior written consent of the Trustee to
assign and delegate all of its duties hereunder; provided, however, that (i) the
Master Servicer or the Special Servicer, as the case may be, gives the Depositor
and the Trustee notice of such assignment and delegation; (ii) such purchaser or
transferee accepting such assignment and delegation executes and delivers to the
Depositor and the Trustee an agreement accepting such assignment, which contains
an assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Master Servicer or the Special Servicer, as
the case may be, with like effect as if originally named as a party to this
Agreement; (iii) a Rating Agency Confirmation shall have been obtained with
respect to such assignment and delegation; and (iv) notice of the assignment and
delegation is given to the Trustee and the Depositor, it being understood that
the delegations existing as of the Closing Date shall be deemed satisfactory to
the Trustee and the Depositor. In the case of any such assignment and delegation
in accordance with the requirements of this Section, the Master Servicer or the
Special Servicer, as the case may be, shall be released from its obligations
under this Agreement, except that the Master Servicer or the Special Servicer,
as the case may be, shall remain liable for all liabilities and obligations
incurred by it as the Master Servicer or the Special Servicer, as the case may
be, hereunder prior to the satisfaction of the conditions to such assignment set
forth in the preceding sentence. Notwithstanding the above, each of the Master
Servicer and the Special Servicer may appoint Sub-Servicers in accordance with
Section 8.4 hereof, provided that the Master Servicer or the Special Servicer
remains fully liable for their actions, agents or independent contractors
appointed or retained to perform select duties thereof.
SECTION 8.26. LIMITATION ON LIABILITY OF MASTER SERVICER,
SPECIAL SERVICER AND OTHERS.
(a) None of the Master Servicer, the Special Servicer or
any of their respective directors, officers, employees or agents shall be under
any liability to the holders of the Certificates, the Trust or any other party
for any action taken or for refraining from the taking of any action in good
faith or for errors in reasonable judgment; provided that this provision shall
not protect the Master Servicer,
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the Special Servicer or any such Person against any breach of a representation,
warranty or covenant contained herein or any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of duties under this Agreement or by reason of negligent disregard
of obligations and duties hereunder. The Master Servicer, the Special Servicer
and any director, officer, employee or agent of the Master Servicer or the
Special Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. Neither the Master Servicer nor the Special Servicer shall be under
any obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties under this Agreement; provided that the Master Servicer
and the Special Servicer each may in its sole discretion undertake any such
action that it may reasonably deem necessary or desirable in order to protect
the interests of the Certificateholders and the Trustee in the Mortgage Loans
for which it is responsible hereunder or otherwise under this Agreement. In such
event, all legal expenses and costs of such action shall be expenses and costs
of the Trust, and the Master Servicer or the Special Servicer, as applicable,
shall be entitled to be reimbursed therefor as Servicing Advances as provided by
Section 5.2.
(b) In addition, neither the Master Servicer nor the
Special Servicer shall have any liability with respect to, and each shall be
entitled to conclusively rely as to the truth of the statements made and the
correctness of the opinions expressed therein on, any certificates or opinions
furnished to the Master Servicer or the Special Servicer, as the case may be,
and conforming to the requirements of this Agreement. Subject to the Servicing
Standard, the Master and the Special Servicer each shall have the right to rely
on information provided to it by the other (unless the Master Servicer and the
Special Servicer are the same party) and by the Mortgagors, and will have no
duty to investigate or verify the accuracy thereof.
(c) Neither the Master Servicer nor the Special Servicer
shall be obligated to incur any liabilities, costs, charges, fees or other
expenses that relate to or arise from any breach of any representation, warranty
or covenant made by the Depositor, the Fiscal Agent or Trustee in this
Agreement.
SECTION 8.27. INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer, the Special Servicer and each of
their respective directors, officers, members, managers, employees and agents
shall be indemnified by the Trust and held harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action relating to this Agreement, the Certificates or any asset of
the Trust Fund (including, without limitation, those arising from the
distribution of reports and information pursuant to the terms of this
Agreement), other than any loss, liability or expense: (i) specifically required
to be borne by such Person pursuant to the terms hereof; (ii) that constitutes a
Servicing Advance (and is otherwise specifically reimbursable hereunder); (iii)
that was incurred in connection with claims against such party resulting from
(A) any breach of a representation, warranty or covenant made herein by such
party, (B) willful misfeasance, bad faith or negligence in the performance of
obligations or duties hereunder by such party, or from negligent disregard of
such obligations or duties, or (C) any violation by such party of any state or
federal securities law; or (iv) imposed by any taxing authority if such loss,
liability or expense is not specifically reimbursable pursuant to the terms of
this Agreement. Each of the Master Servicer and the Special Servicer shall
promptly notify the Trustee if a claim is made by a third party with respect to
this Agreement, the Certificates or any asset of the Trust Fund entitling the
Master Servicer or the Special Servicer, as the case may be, to indemnification
hereunder, whereupon the Trustee, on behalf of the Trust, shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Master
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Servicer or the Special Servicer, as applicable) and pay out of the Collection
Account all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy out of the Collection Account any judgment
or decree that may be entered against it or them in respect of such claim. Any
failure to so notify the Trustee shall not affect any rights the Master Servicer
or the Special Servicer may have to indemnification under this Agreement or
otherwise, unless the Trust's defense of such claim is prejudiced thereby and
the Trustee delivers a certification explaining the prejudice. The Trustee or
the Master Servicer shall promptly make from the Collection Account any payments
certified by the Master Servicer or the Special Servicer to the Trustee as
required to be made to the Master Servicer or the Special Servicer, as the case
may be, pursuant to this Section 8.27(a). The indemnification provided herein
shall survive the resignation or termination of the Master Servicer or the
Special Servicer.
(b) The Master Servicer agrees to indemnify the Trust,
the Trustee, the Fiscal Agent, the Special Servicer (if different than the
Master Servicer), the Depositor, and any director, officer, manager, member,
employee or agent thereof, and hold them harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses that any of them may sustain
arising from or as a result of the willful misfeasance, bad faith or negligence
in the performance of any of the Master Servicer's duties hereunder or by reason
of negligent disregard of the Master Servicer's obligations and duties hereunder
(unless such claim, loss, penalty, fine, forfeiture, legal fee and related cost
or judgment results from the willful misfeasance, bad faith or negligence of
such indemnified party), and if in any such situation the Master Servicer is
replaced, the parties hereto agree that the amount of such claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and other
costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor master servicer. Each of the Trustee,
the Depositor, the Special Servicer (if different than the Master Servicer) and
the Fiscal Agent shall immediately notify the Master Servicer if a claim is made
by a third party with respect to this Agreement, the Certificates or any asset
of the Trust Fund entitling the Trust, the Trustee, the Depositor, the Special
Servicer or the Fiscal Agent, as the case may be, to indemnification hereunder,
whereupon the Master Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Trustee, the Depositor, the Special
Servicer or the Fiscal Agent, as applicable) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree that may be entered against it or them in respect of such
claim. Any failure to so notify the Master Servicer shall not affect any rights
the Trust, the Trustee, the Depositor, Special Servicer or the Fiscal Agent may
have to indemnification under this Agreement or otherwise, unless the Master
Servicer's defense of such claim is materially prejudiced thereby and the Master
Servicer delivers a certification explaining the prejudice. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or termination of the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent.
(c) The Special Servicer agrees to indemnify the Trust,
the Trustee, the Fiscal Agent, the Master Servicer (if different than the
Special Servicer), the Depositor, and any director, officer, employee or agent
thereof, and hold them harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses that any of them may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance of
any of the Special Servicer's duties hereunder or by reason of negligent
disregard of the Special Servicer's obligations and duties hereunder by the
Special Servicer (unless such claim, loss, penalty, fine, forfeiture, legal fee
and related cost or judgment results from the willful misfeasance, bad faith or
negligence of such indemnified party). Each of the Trustee, the Fiscal Agent,
the Master Servicer (if different than the Special Servicer) and the Depositor
shall immediately notify the Special Servicer if a claim is made by a third
party with respect to this Agreement, the Certificates or any
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asset of the Trust Fund entitling the Trust or the Trustee, the Fiscal Agent,
the Master Servicer or the Depositor, as the case may be, to indemnification
hereunder, whereupon the Special Servicer shall assume the defense of any such
claim (with counsel reasonably satisfactory to the Trustee, the Fiscal Agent,
the Master Servicer or the Depositor, as applicable) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree that may be entered against it or them in respect
of such claim. Any failure to so notify the Special Servicer shall not affect
any rights the Trust, the Trustee, the Fiscal Agent, the Master Servicer or the
Depositor may have to indemnification under this Agreement or otherwise, unless
the Special Servicer's defense of such claim is materially prejudiced thereby.
The indemnification provided herein shall survive the termination of this
Agreement and the resignation or termination of the Special Servicer, the Master
Servicer, the Trustee and the Fiscal Agent.
SECTION 8.28. TAX REPORTING. From and after the Closing Date,
the Master Servicer shall comply with the Mortgagor tax reporting requirements
imposed by Sections 6050H, 6050J and 6050P of the Code and any similar tax
reporting obligations under State law with respect to any Specially Serviced
Mortgage Loan. The Special Servicer shall provide to the Master Servicer copies
of any such reports. The Master Servicer shall forward such reports to the
Trustee. The Special Servicer shall provide the Master Servicer with such
information and reports as the Master Servicer deems necessary to fulfill its
obligations under this Section 8.28 promptly upon the Master Servicer's request
therefor.
SECTION 8.29. CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, in the case of any Specially
Serviced Mortgage Loans will deliver, at such times as are set forth in Section
8.14(f), the reports set forth in Section 8.14(f), which will include a
narrative description for each Specially Serviced Mortgage Loan of the current
status of such Mortgage Loan. The Special Servicer will also deliver any
additional reports as may be reasonably agreed upon by the Operating Adviser and
the Special Servicer for a reasonable fee payable by the Operating Adviser.
(b) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination with
respect to any Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee, the Master Servicer and the Operating Adviser (or if no
Operating Adviser has been elected, the Majority Certificateholder of the
Controlling Class) no later than the tenth Business Day following such Final
Recovery Determination.
(c) In addition, no later than 30 days after a Servicing
Transfer Event for a Mortgage Loan, the Special Servicer shall deliver to the
Master Servicer, each Rating Agency and the Operating Adviser (or if no
Operating Adviser has been elected, the Majority Certificateholder of the
Controlling Class) a report (the "ASSET STATUS REPORT") with respect to such
Mortgage Loan and the related Mortgaged Property. Such Asset Status Report shall
set forth the following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced
Mortgage Loan and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer, consistent
with the Servicing Standard, that are applicable to the exercise of
remedies as aforesaid, and to the enforcement of any related guaranties
or other collateral for the related Mortgage Loan, and whether outside
legal counsel has been retained;
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(ii) the most current rent roll and income or
operating statement available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations as to how
such Specially Serviced Mortgage Loan might be returned to the Master
Servicer for regular servicing or otherwise realized upon;
(v) upon receipt of an Appraisal, the Appraised Value
of the Mortgaged Property together with the assumptions used in the
calculation thereof; and
(vi) such other information as the Special Servicer
deems relevant in light of the Servicing Standard.
(d) If the Operating Advisor disapproves of an Asset
Status Report, the Operating Advisor 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
8.29(e), revise such Asset Status Report and deliver to the Operating Advisor,
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 Operating Advisor 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 8.29(e), revise such Asset Status Report as provided above in this
paragraph until the earliest of (a) the failure of the Operating Advisor 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 8.29(e), 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) following the occurrence of an extraordinary event, take any
action set forth in an Asset Status Report before the expiration of the ten (10)
Business Day period during which the Operating Advisor 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
Operating Advisor; 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 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 8.29(e), revise such Asset Status
Report as described above. The Trustee shall be entitled to reimbursement from
the Trust Fund for the reasonable out-of-pocket expenses of providing such
notices.
The Special Servicer may not take any action
inconsistent with an Asset Status
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Report that has been adopted as described above, unless such action would be
required in order to act in accordance with the Servicing Standard.
(e) 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
Operating Advisor 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 otherwise have a material adverse effect on the
grantor trust created hereunder; or
(iii) expose the Master Servicer, the Special
Servicer, the Depositor, any Seller, the Trust Fund, 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 Operating Advisor 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 Operating Advisor and, if any
Operating Advisor resigns or is removed, during the period following such
resignation or removal until a replacement is selected.
SECTION 8.30. QUALIFICATION TO SERVICE. The Master Servicer
and the Special Servicer shall each keep in full force and effect such
qualifications to do business and any necessary licenses as are necessary to
perform its duties under this Agreement.
SECTION 8.31. SALE OF DEFAULTED MORTGAGE LOANS AND REO
PROPERTIES.
(a) The Special Servicer may offer to sell for cash to
any Person any REO Property or Defaulted Mortgage Loan. In the case of REO
Property, the Special Servicer shall offer to sell such REO Property no later
than the time determined by the Special Servicer to be sufficient to result in
the sale of such REO Property on or prior to the date specified in Section
8.19(a), and in any event prior to the Rated Final Distribution Date. The
Special Servicer shall give the Operating Adviser and the Trustee not less than
five days' prior written notice of its intention to sell any such Defaulted
Mortgage Loan or REO Property, and in respect of such sale, the Special Servicer
shall offer such Defaulted Mortgage Loan or REO Property for sale in a fair
auction or other manner as is consistent with the Servicing Standard and shall
accept the highest cash bid received in such auction or other procedure from any
Person other than an Interested Person for any Defaulted Mortgage Loan or REO
Property in an amount, except as otherwise provided in this Section, at least
equal to the Purchase Price therefor.
In the absence of a bid in an amount at least equal to the
Purchase Price (after deducting allocable expenses), the Special Servicer shall
accept the highest cash bid received from any Person other
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than any Interested Person or the Trustee in its individual capacity, unless the
Special Servicer has received other bids, the Interested Party's bid is the
highest bid, and the Special Servicer (in consultation with the Trustee)
determines that acceptance of such bid is in the best interest of the
Certificateholders.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise 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. In
addition, the Special Servicer may accept a lower bid (including a bid lower
than the Purchase Price) if it determines, in accordance with the Servicing
Standard, that acceptance of such bid would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower bid
is more likely to perform its obligations, or the terms offered by the
prospective buyer making the lower bid are more favorable), provided that if any
Defaulted Mortgage Loan or REO Property as to which an Appraisal Reduction has
occurred is to be sold by the Special Servicer, then the Special Servicer shall
not, without the approval of the Operating Adviser, if any, accept any bid for
such loan or property that is less than 90% of the appraised value of the
related Mortgaged Property (based on the Appraisal or internal evaluation used
in determining the related Appraisal Reduction). The Special Servicer shall
determine no later than six months prior to the end of the REO Sale Deadline
with respect to any REO Property whether a sale of such REO Property pursuant to
any bids being made with respect thereto is in the best economic interests of
the Certificateholders as a whole. If the Special Servicer so determines in
accordance with the Servicing Standard that such a sale would not be in the best
interests of the Certificateholders, the Special Servicer shall seek an
extension of such period in the manner described in Section 8.19.
(b) Subject to the REMIC Provisions, the Special Servicer
shall act on behalf of the Trust in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Defaulted Mortgage
Loan or REO Property, including the collection of all amounts payable in
connection therewith. Any sale of a Defaulted Mortgage Loan or REO Property
shall be without recourse to, or representation or warranty by, the Trustee, the
Depositor, the Special Servicer, the Master Servicer, or the Trust, except for
warranties in a deed and other normal and customary representations and
warranties given in connection with the sale of mortgage loans and real estate.
None of the Special Servicer, the Master Servicer, the Depositor, the Fiscal
Agent or the Trustee shall have any liability to the Trust or any
Certificateholder with respect to the price at which a Defaulted Mortgage Loan
is sold if the sale is consummated in accordance with the terms of this
Agreement.
(c) The proceeds of any sale after deduction of the
expenses of such sale incurred in connection therewith shall be deposited within
one Business Day in the Collection Account.
(d) (d) Notwithstanding anything herein to the contrary,
the Special Servicer shall not be required to take or refrain from taking any
action pursuant to instructions from (or which require the approval of) the
Operating Adviser that would cause it to violate any term or provision of this
Agreement, the REMIC Provisions or the Servicing Standard.
SECTION 8.32. OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 8.32(c), the Holders of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to elect an operating adviser (the
"OPERATING ADVISER") with the powers set forth in Section 8.33. An election of
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an Operating Adviser may also be held upon the resignation or removal of any
Person acting as Operating Adviser. The initial Operating Adviser shall be First
Chicago Capital Corporation.
(b) At the request of the Holders of Certificates
representing at least 50% of the Class Principal Balance of the Controlling
Class, the Trustee shall call a meeting of the Holders of the Controlling Class
for purpose of electing an Operating Adviser. Notice of the meeting shall be
mailed or delivered by the Trustee to each Holder of Certificates of the
Controlling Class not less than 10 nor more than 60 days prior to the meeting.
The notice shall state the place and the time of the meeting, which may be held
by telephone. Holders of Certificates representing a majority of the Class
Principal Balance of the Controlling Class, present in person or represented by
proxy, shall constitute a quorum for the nomination of an Operating Adviser. At
the meeting, each Holder shall be entitled to nominate one Person to act as
Operating Adviser. The Trustee shall cause the election of the Operating Adviser
to be held as soon thereafter as is reasonably practicable.
(c) Each Holder of Certificates of the Controlling Class
shall be entitled to vote in each election of the Operating Adviser. The voting
in each election of the Operating Adviser shall be in writing mailed,
telecopied, delivered or sent by courier and actually received by the Trustee on
or prior to the date of such election. Immediately upon receipt by the Trustee
of votes (which have not been rescinded) from the Holders of Certificates
representing more than 50% of the Class Principal Balance of the Controlling
Class which are cast for a single Person, such Person shall be, upon such
Person's acceptance, the Operating Adviser. The Trustee shall act as judge of
each election and, absent manifest error, the determination of the results of
any election by the Trustee shall be conclusive. Notwithstanding any other
provisions of this Section 8.32, the Trustee may make such reasonable
regulations as it may deem advisable for any election.
(d) The Operating Adviser may be removed at any time by
the written vote, copies of which must be delivered to the Trustee, of the
Holders of the Certificates representing more than 50% of the Class Principal
Balance of the Controlling Class.
(e) For purposes of electing or removing an Operating
Adviser, Certificates of the Controlling Class held by the Depositor, the Master
Servicer or the Special Servicer or by any Affiliate of any of them shall be
taken into account with the same force and effect as if any other Person held
such Certificates.
(f) The Operating Advisor 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 Operating Advisor 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 Operating Advisor may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates, that the Operating Advisor may act solely
in the interests of the Holders of the Controlling Class, that the Operating
Advisor does not have any duties to the Holders of any Class of Certificates
other than the Controlling Class, that the Operating Advisor 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 Operating
Advisor shall not be deemed to have been negligent or reckless, or to have acted
in bad faith or engaged in willful misfeasance, by reason of its having acted
solely in the interests of the Holders of the Controlling Class, and that the
Operating Advisor shall have no liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever
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against the Operating Advisor or any director, officer, employee, agent or
principal thereof for having so acted.
SECTION 8.33. DUTIES OF OPERATING ADVISER.
(a) If an Operating Adviser has been elected and is
currently acting in such capacity, then, at least five days prior to the Special
Servicer's taking any of the following actions, the Special Servicer shall
notify such Operating Adviser of its intention to take such action:
(i) any foreclosure upon or comparable conversion
(which may include acquisition of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as
come into and continue in default;
(ii) any modification of a Money Term of a Mortgage
Loan (other than a modification consisting of the extension of the
original Maturity Date of such Mortgage Loan for two years or less);
(iii) any sale of a Defaulted Mortgage Loan or REO
Property pursuant to Section 8.31;
(iv) any determination to bring a Mortgaged Property
or an REO Property into compliance with Environmental Laws; and
(v) any acceptance of substitute or additional
collateral for a Mortgage Loan.
(b) The Operating Adviser, if any, may direct the Trustee
to remove the Special Servicer, at any time effective upon the appointment and
written acceptance of such appointment by a successor to the Special Servicer
appointed by the Operating Adviser; provided that, prior to the effectiveness of
any such appointment the Operating Adviser and the Trustee shall have received:
(i) Rating Agency Confirmation; and (ii) an Opinion of Counsel (which shall not
be an expense of the Trustee or Trust) to the effect that this Agreement shall
be enforceable against the designated successor in accordance with its terms.
Any costs related to such removal shall be at the expense of the Operating
Adviser. The existing Special Servicer shall be deemed to have resigned
simultaneously with such designated successor's becoming the Special Servicer
hereunder; provided, however, that (i) the resigning Special Servicer shall
continue to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the effective date of such resignation, whether in
respect of Servicing Advances or otherwise, and (ii) it and its directors,
officers, employees and agents shall continue to be entitled to the benefits of
Sections 8.26 and 8.27, notwithstanding any such resignation. Such resigning
Special Servicer shall cooperate with the Trustee and the replacement Special
Servicer in effecting the termination of the resigning Special Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been deposited in the Collection Account or delivered by the Special
Servicer to the Master Servicer or that are thereafter received with respect to
Specially Serviced Mortgage Loans and REO Properties.
SECTION 8.34. EXCHANGE ACT REPORTING.The Trustee shall, at the
Trustee's expense, prepare for filing, execute and properly file with the
Securities and Exchange Commission, any and all reports, statements and
information, including, without limitation Form 10-K and Form 8-K, respecting
the Trust Fund and/or the Certificates required or specifically provided herein
to be filed on behalf of the
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Trust under the Exchange Act. The Master Servicer and the Special Servicer shall
provide any items required to be delivered by either of them under this
Agreement in Microsoft Word or in such other mutually acceptable format for
conversion to EDGAR format for electronic filing via the EDGAR system (in
addition to any other required format). The Trustee shall, at the Trustee's
expense and in accordance with and to the extent permitted by applicable law,
file a Form 15 relating to automatic termination of reporting in respect of the
Trust under the Exchange Act.
SECTION 8.35. LETTERS OF CREDIT.
With respect to the Mortgage Loans listed on Schedule IV,
which are secured in part by letters of credit, the Master Servicer shall
consult with the Special Servicer prior to making any changes to the terms
thereof.
ARTICLE IX.
DEFAULT
SECTION 9.1. EVENTS OF DEFAULT.
(a) "EVENT OF DEFAULT", wherever used herein, means any
one of the following events:
(i) (A) any failure by the Master Servicer to make a
required deposit to the Collection Account which continues unremedied
for one Business Day following the date on which such deposit was first
required to be made, or (B) any failure by the Master Servicer to
deposit into, or to remit to the Trustee for deposit into, the
Distribution Account any amount required to be so deposited or
remitted, which failure is not remedied by 11:00 a.m. (New York City
time) on the related Distribution Date; provided that if the Master
Servicer fails to make any remittance required to be made by the Master
Servicer to the Distribution Account on the Master Servicer Remittance
Date, the Master Servicer shall pay to the Trustee for the account of
the Trustee interest on any amount not timely remitted at the Advance
Rate from and including the Master Servicer Remittance Date to, but not
including, the day on which such remittance is actually made; or
(ii) any failure by the Special Servicer to deposit
into, or to remit to the Master Servicer for deposit into, the
Collection Account or REO 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 was first required to be made; or
(iii) any failure by the Master Servicer or the
Special Servicer to timely make any Servicing Advance required to be
made by it pursuant to this Agreement which continues unremedied for a
period ending on the earlier of (A) 15 days following the date such
Servicing Advance was first required to be made, and (B) either, if
applicable, (1) in the case of a Servicing Advance relating to the
payment of insurance premiums, the day on which such insurance coverage
terminates if such premiums are not paid or (2) in the case of a
Servicing Advance relating to the payment of real estate taxes, the
date of the commencement of a foreclosure action with respect to the
failure to make such payment; or
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(iv) any failure on the part of the Master Servicer
or the Special Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Master Servicer or the Special Servicer contained in this Agreement
which continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by the Trustee or the Depositor, or to
the Master Servicer or the Special Servicer, as the case may be, the
Depositor and the Trustee by the Holders of Certificates entitled to
not less than 25% of the Voting Rights, provided, however, that with
respect to any such failure which is not curable within such 30-day
period, the Master Servicer or the Special Servicer, as the case may
be, will be entitled to an additional cure period of 30 days to effect
such cure so long as the Master Servicer or the Special Servicer, as
the case may be, has commenced to cure such failure within the initial
30-day period and has provided the Trustee with an Officer's
Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(v) any breach on the part of the Master Servicer or
the Special Servicer of any representation or warranty contained in
this Agreement which materially and adversely affects the interests of
any Class of Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by the Trustee or
the Depositor, or to the Master Servicer or the Special Servicer, as
the case may be, the Depositor and the Trustee by the Holders of
Certificates entitled to not less than 25% of the Voting Rights,
provided, however, that with respect to any breach which is not curable
within such 30-day period, the Master Servicer or the Special Servicer,
as the case may be, will be entitled to an additional cure period of 30
days to effect such cure so long as the Master Servicer or the Special
Servicer, as the case may be, has commenced to cure such breach within
the initial 30-day period and has provided the Trustee with an
Officer's Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(vi) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law for the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(vii) the Master Servicer or the Special Servicer
shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or
substantially all of its property; or
(viii) the Master Servicer or the Special Servicer
shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable
bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
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(ix) the Trustee shall have received written notice
from Fitch that the continuation of the Master Servicer or the Special
Servicer in such capacity, in and of itself, would result or has
resulted in the downgrade, qualification (which shall include a
"RatingAlert--negative") or withdrawal of any rating then assigned by
Fitch to any Class of Certificates; or
(x) Moody's places the ratings of any Class of
Certificates on a "watch" status in contemplation of a ratings
downgrade or withdrawal (or Moody's has downgraded or withdrawn any
Class of Certificates), citing servicing concerns with respect to the
Master Servicer or the Special Servicer, as applicable, as the sole or
a contributory factor in such rating action; or
(xi) the Master Servicer or the Special Servicer, as
applicable, is no longer on the approved list of commercial mortgage
loan master servicers or special servicers maintained by Standard &
Poor's Ratings Services, and the Master Servicer or the Special
Servicer, as applicable, shall not have again become listed on the
approved list within 45 days thereafter.
(b) If any Event of Default with respect to the Master
Servicer or the Special Servicer (in either case for purposes of this
Section 9.1(b), the "DEFAULTING PARTY") shall occur and be continuing,
then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Depositor or the Trustee may
terminate, and at the written direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights, the Trustee shall
terminate, by notice in writing to the Defaulting Party, with a copy of
such notice to the Depositor (if the termination is effected by the
Trustee) or to the Trustee (if the termination is effected by the
Depositor), all of the rights and obligations of the Defaulting Party
under this Agreement and in and to the Mortgage Loans and the proceeds
thereof (other than any rights of the Defaulting Party as
Certificateholder and for recovery of amounts due the Defaulting Party
out of the proceeds of the Mortgage Loans). From and after the receipt
by the Defaulting Party of such written notice, all authority and power
of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on
behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the
Mortgage Loans and related documents, or otherwise. The Master Servicer
and the Special Servicer each agrees that if it is terminated pursuant
to this Section 9.1(b), it shall promptly (and in any event no later
than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records
requested by the Trustee to enable it or a successor servicer to assume
the Master Servicer's or Special Servicer's, as the case may be,
functions hereunder, and shall cooperate with the Trustee in effecting
the termination of the Master Servicer's or Special Servicer's, as the
case may be, responsibilities and rights hereunder, including, without
limitation, the transfer within two Business Days to the Trustee or a
successor servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the Master
Servicer or the Special Servicer, as the case may be, to the Collection
Account, the Distribution Account or any Servicing Account or
thereafter be received with respect to the Mortgage Loans or any REO
Property (provided, however, that the Master Servicer and the Special
Servicer each shall continue to be entitled to receive all amounts
accrued or owing to it
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under this Agreement on or prior to the date of such termination,
whether in respect of Advances (together with Advance Interest thereon)
made by it or otherwise, and it and its directors, officers, employees
and agents shall continue to be entitled to the benefits of Sections
8.26 and 8.27 notwithstanding any such termination).
SECTION 9.2. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR. On and
after the time the Master Servicer or the Special Servicer receives a notice of
termination pursuant to Section 9.1, the Trustee shall be the successor in all
respects to the Master Servicer or the Special Servicer, as the case may be, in
its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities (except for liabilities incurred prior to the Event of Default)
relating thereto and arising thereafter placed on the Master Servicer or the
Special Servicer, as the case may be, by the terms and provisions hereof,
including, without limitation, the Master Servicer's obligation to make P&I
Advances; provided that any failure to perform such duties or responsibilities
caused by the Master Servicer's or the Special Servicer's failure to provide
information or monies required by Section 9.1 shall not be considered a default
by the Trustee hereunder. The Trustee shall not be liable for any of the
representations and warranties of the Master Servicer or the Special Servicer
and the Trustee shall not be required to purchase any Mortgage Loan hereunder.
As compensation therefor, the Trustee shall be entitled to the applicable
Servicing Fees and all funds relating to the Mortgage Loans that the Master
Servicer or the Special Servicer would have been entitled to charge to the
Collection Account if the Master Servicer or the Special Servicer had continued
to act hereunder. Notwithstanding the above, and subject to the provisions of
Section 9.5, the Trustee may, if it shall be unwilling to so act, or shall, if
it is unable to so act or if the Holders of Certificates entitled to at least
51% of the Voting Rights so request in writing to the Trustee or if it is not
appropriately rated as an approved master servicer or special servicer, as the
case may be, by each Rating Agency, promptly appoint, or petition a court of
competent jurisdiction for the appointment of, a mortgage loan servicing
institution that has a net worth of not less than $15,000,000 and is otherwise
acceptable to each Rating Agency (as evidenced by Rating Agency Confirmation),
as the successor to the Master Servicer or the Special Servicer, as the case may
be, hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the Master Servicer or the Special Servicer. No
appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption by the successor to the Master
Servicer or the Special Servicer of all the responsibilities, duties and
liabilities of the Master Servicer or the Special Servicer, as the case may be,
hereunder. Pending appointment of a successor to the Master Servicer or the
Special Servicer hereunder, the Trustee shall act in such capacity as
hereinabove provided and shall be entitled to such compensation as would
otherwise have been payable to the Master Servicer or the Special Servicer, as
the case may be. In connection with any such appointment and assumption
described herein, the Trustee may make such arrangements for the compensation of
such successor out of payments on 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 and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
SECTION 9.3. NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any resignation of the Master Servicer or the
Special Servicer pursuant to Section 8.24, any termination of the Master
Servicer or the Special Servicer pursuant to Section 9.1 or any appointment of a
successor to the Master Servicer or the Special Servicer pursuant to Section
9.2, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register, and to the
Special Servicer in the case of the resignation or termination of the Master
Servicer.
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(b) Not later than the later of (i) 60 days after the
occurrence of any event which constitutes or, with notice or lapse of time or
both, would constitute an Event of Default and (ii) five days after the Trustee
discovers or is notified 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 9.4. WAIVER OF EVENTS OF DEFAULT.The Holders of
Certificates entitled to at least 66 2/3% of the Voting Rights allocated to the
respective Classes of Certificates affected by any Event of Default hereunder
may, subject to Section 9.1(b) hereof, waive such Event of Default; provided,
however, that an Event of Default under clause (i) or (ii) of Section 9.1(a) may
be waived only by all of the Certificateholders. 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; provided, however, that the
Trustee shall be entitled to reimbursement pursuant to Section 7.12 for any
costs and expenses incurred as a result of such Event of Default. 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 9.4, 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 any other
Person held such Certificates.
SECTION 9.5 SALE OF SERVICING RIGHTS.
If the Master Servicer is terminated solely due to an Event of
Default under Section 9.01(a)(ix), (x) or (xi) and the Trustee succeeds to the
Master Servicer pursuant to Section 9.2, and if the Master Servicer delivers to
the Trustee proposed bid materials within five Business Days of such
termination, the Trustee shall, within the next three Business Days of such
delivery, solicit good faith bids for the rights to master service the Mortgage
Loans under this Agreement from at least three Persons qualified under this
Agreement to act as successor master servicer (or if three qualified Persons
cannot be located, from as many Persons as qualified). The bid proposal shall
require any Successful Bidder, as a condition of such bid, to enter into this
Agreement as successor master servicer, and to agree to be bound by the terms
hereof within 45 days after the termination of the 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 0.03% per annum per Mortgage Loan serviced, such fee to be
paid by the successor master servicer (each a "Servicing Retained Bid") and (ii)
on the basis of terminating each sub-servicing agreement with the terminated
Master Servicer (each a "Servicing Released Bid"), subject to the provisions of
Section 8.4. The Trustee shall select the qualified bidder of a Servicing
Retained Bid, or if none a Servicing Released Bid, with the highest cash bid
(the "Successful Bidder") to act as successor master servicer hereunder;
provided that the Trustee shall not select the bidder of a Servicing Retained
Bid unless it receives written confirmation from the Rating Agencies that the
retention of the terminated master servicer pursuant to a sub-servicing
agreement would not result in the withdrawal, qualification or downgrade of the
then-current ratings of any Class of Certificates. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor master servicer
pursuant to the terms hereof, no later than 45 days after the termination of the
Master Servicer.
Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder, including the transfer of the
servicing of the Mortgage Loans, the Trustee shall remit
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or cause to be remitted (i) if the successful bid was a Servicing Retained Bid,
to the terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of expenses incurred in connection with the termination
of the servicing rights, obtaining such bid and out-of-pocket expenses incurred
in connection with transferring the servicing of the Mortgage Loans) and (ii) if
the successful bid was a Servicing Released Bid, to the 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 45 days after the Trustee was appointed as
successor master servicer, or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer (or if the terminated Master
Servicer fails to do so, the Trust) 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
9.5 and may select a successor master servicer of its choice pursuant to the
terms hereof.
ARTICLE X.
PURCHASE AND TERMINATION OF THE TRUST
SECTION 10.1. TERMINATION OF TRUST.
(a) Subject to Section 10.3, the Trust and the respective
obligations and responsibilities of the Depositor, the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent hereunder (other than the
obligation of the Trustee to make payments to Certificateholders on the final
Distribution Date pursuant to Section 6.4 or otherwise as set forth in Section
10.2 and other than the obligations in the nature of information or tax
reporting or tax-related administrative or judicial contests or proceedings)
shall terminate on the earlier of (i) the later of (A) the final payment or
other liquidation of the last Mortgage Loan held by the Trust and (B) the
disposition of the last REO Property held by the Trust and (ii) the sale of all
Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b); provided that in no event shall the Trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late Ambassador of the United
States to the Court of St. James, living on the date hereof.
(b) As soon as reasonably practical, the Trustee shall
give the Depositor, the Special Servicer, the Master Servicer, the Majority
Certificateholder of the Controlling Class and the Class R-I Certificateholders
notice of the date when the aggregate Certificate Principal Balance of the
Principal Balance Certificates, after giving effect to distributions of
principal made on the next Distribution Date, will be less than or equal to 1%
of the Initial Pool Balance. The Depositor, the Special Servicer, the Master
Servicer, the majority holders of the Controlling Class and the Holders of Class
R-I Certificates representing a majority Percentage Interest in such Class shall
thereafter be entitled, in that order of priority, to purchase, in whole only,
the Mortgage Loans and any REO Properties then remaining in the Trust Fund. If
any such party desires to exercise such option, it will notify the Trustee who
will notify any other such party with a prior right to exercise such option. If
any such party that has been so provided notice by the Trustee notifies the
Trustee within ten Business Days after receiving notice of the proposed purchase
that it wishes to purchase the assets of the Trust, then such party (or, in the
event that more than one of such parties notifies the Trustee that it wishes to
purchase the assets of the Trust, the party with the first right to purchase the
assets of the Trust) may purchase the assets of the Trust in accordance with
this Agreement. The "TERMINATION PRICE" shall equal the greater of (x) the sum
of (i) the aggregate Purchase Price of all the remaining Mortgage Loans (other
than REO Mortgage Loans and
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Mortgage Loans as to which a Final Recovery Determination has been made) held by
the Trust, plus (ii) the appraised value of each remaining REO Property, if any,
held by the Trust (such appraisal to be conducted by a Qualified Appraiser
selected by the Master Servicer and approved by the Trustee), minus (iii) solely
in the case where the Master Servicer is effecting such purchase, the aggregate
amount of unreimbursed Advances made by the Master Servicer, together with any
Advance Interest accrued and payable to the Master Servicer in respect of such
Advances and any unpaid Master Servicing Fees remaining outstanding (which items
shall be deemed to have been paid or reimbursed to the Master Servicer in
connection with such purchase) (or, solely in the case where the Special
Servicer is effecting such purchase, the aggregate amount of unreimbursed
Servicing Advances made by the Special Servicer, together with any Advance
Interest accrued and payable to the Special Servicer in respect of such
Servicing Advances and any unpaid Special Servicing Fees remaining outstanding
(which items shall be deemed to have been paid or reimbursed to the Special
Servicer in connection with such purchase)); (y) the fair market value of all
remaining assets of REMIC I and the grantor trust; and (z) the amount that would
be sufficient to pay the outstanding Certificate Principal Balance of each Class
of Certificates, Distributable Certificate Interest thereon, and Distributable
Certificate Interest on the Class X Certificates for the final Distribution
Date.
In the event that the Depositor, the Master Servicer, the
Special Servicer, the Majority Certificateholder of the Controlling Class or the
Holders of Class R-I Certificates representing a majority Percentage Interest in
such Class purchase all of the remaining Mortgage Loans and REO Properties held
by the Trust in accordance with the preceding paragraph, the party effecting
such purchase (the "FINAL PURCHASER") shall (i) deposit in the Collection
Account not later than the Determination Date relating to the Distribution Date
on which the final distribution on the Certificates is to occur, an amount in
immediately available funds equal to the Termination Price (other than the
amount, if any, of such Termination Price paid in respect of the assets of the
grantor trust, which amount shall be paid to the Trustee for deposit in the
Excess Interest Distribution Account) and (ii) deliver notice to the Trustee of
its intention to effect such purchase. Upon confirmation that such deposit has
been made, the Trustee shall release or cause to be released to the Final
Purchaser or its designee the Mortgage Files for the remaining Mortgage Loans
and shall execute all assignments, endorsements and other instruments furnished
to it by the Final Purchaser as shall be necessary to effectuate transfer of the
remaining Mortgage Loans and REO Properties held by the Trust, in each case
without representation or warranty by the Trustee. All Servicing Files for the
remaining Mortgage Loans and REO Properties shall be delivered to the Final
Purchaser or its designee at the expense of the Final Purchaser.
(c) As a condition to the purchase of the assets of the
Trust pursuant to Section 10.1(b), the Final Purchaser must deliver to the
Trustee an Opinion of Counsel, which shall be at the expense of the Final
Purchaser, stating that such termination will be a "qualified liquidation" under
Section 860F(a)(4) of the Code of each of REMIC I, REMIC II and REMIC III. Such
purchase shall be made in accordance with Section 10.3.
SECTION 10.2. PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions
of Section 10.1, specifying the Distribution Date upon which the final
distribution shall be made, shall be given promptly by the Trustee to each
Rating Agency and each Certificateholder by first class mail no later than the
later of (a) ten days prior to the date of such termination and (b) the date the
Trustee receives notice of such termination. Such notice shall specify (A) the
Distribution Date upon which final distribution on the Certificates will be made
and (B) that the Record Date otherwise applicable to such Distribution Date is
not applicable, distribution being made only upon presentation and surrender of
the Certificates at the
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office or agency of the Trustee therein specified. The Trustee shall give such
notice to the Depositor and the Certificate Registrar at the time such notice is
given to Certificateholders. Upon any such termination, the Trustee shall
terminate, or request the Master Servicer to terminate, the Collection Account
and the Distribution Account and any other account or fund maintained with
respect to the Certificates, subject to the Trustee's obligation hereunder to
hold all amounts payable to the nontendering Certificateholders in trust without
interest pending such payment.
(b) On the final Distribution Date, the Trustee shall
distribute to each Certificateholder that presents and surrenders its
Certificates all amounts payable on such Certificates on such final Distribution
Date in accordance with Section 6.4.
(c) In the event that all of the Holders do not surrender
their Certificates for cancellation within three months after the time specified
in the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to contact
the nontendering Certificateholders concerning surrender of their Certificates,
and the cost thereof shall be paid out of the amounts distributable to such
Holders. If within two years after the second notice any such Certificates shall
not have been surrendered for cancellation, the Trustee shall, subject to
applicable state law relating to escheat, hold all amounts distributable to such
Holders for the benefit of such Holders. No interest shall accrue on any amount
held by the Trustee and not distributed to a Certificateholder due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section. Any money held by
the Trustee pending distribution under this Section 10.2 after 90 days after the
adoption of a plan of complete liquidation shall be deemed for tax purposes to
have been distributed from the REMICs and shall be beneficially owned by the
related Holder.
SECTION 10.3. ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) In the event of a purchase of all the remaining
Mortgage Loans and REO Properties held by the Trust in accordance with Section
10.1 or any other termination of the Trust under this Article X, the Trust and
each REMIC Pool shall be terminated in accordance with the following additional
requirements, unless in the case of a termination under Section 10.1 hereof, the
Final Purchaser delivers to the Trustee an Opinion of Counsel at the expense of
the Final Purchaser (or, in the case of any other termination, the Trustee shall
obtain such Opinion of Counsel at the expense of the Trust Fund) addressed to
the Depositor and the Trustee to the effect that the failure of the Trust to
comply with the requirements of this Section 10.3 will not (i) result in the
imposition of taxes on "prohibited transactions" of any REMIC Pool under the
REMIC Provisions or (ii) cause any REMIC Pool to fail to qualify as a REMIC at
any time that any Certificates are outstanding:
(i) within 89 days prior to the final Distribution
Date set forth in the notice given by the Trustee under Section 10.2,
the Trustee shall adopt a plan of complete liquidation prepared by the
Final Purchaser and meeting the requirements for a qualified
liquidation for each REMIC Pool under Section 860F of the Code and any
regulations thereunder;
(ii) during such 90-day liquidation period and at or
after the adoption of the plans of complete liquidation and at or prior
to the final Distribution Date, the Trustee shall sell all of the
remaining Mortgage Loans and any REO Properties held by the Trust to
the Final Purchaser for cash in an amount equal to the Termination
Price, such cash shall be deposited into the Collection Account, shall
be deemed distributed on the REMIC I Regular Interests in
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retirement thereof, shall be deemed distributed on the REMIC II Regular
Interests in retirement thereof, and shall be distributed to the
Certificateholders in retirement of the Certificates;
(iii) at the time of 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 related Class of
Residual Certificates all cash on hand in each REMIC Pool after making
such final deemed payment or payments (other than cash retained to meet
claims), and REMIC I, REMIC II and REMIC III shall terminate at that
time; and
(iv) in no event may the final payment on the REMIC I
Interests, the REMIC II Interests, the REMIC III Regular Certificates,
or the Class R-III Certificates be made after the 89th day from the
date on which such plans of complete liquidation are adopted. The
Trustee shall specify the first day of the 90-day liquidation period in
a statement attached to the final Tax Return for each REMIC Pool
pursuant to Treasury regulation 1.860F-1.
(b) By their acceptance of Certificates, the Holders
thereof hereby agree to authorize the Trustee to adopt a plan of complete
liquidation of REMIC I, REMIC II and REMIC III in accordance with the foregoing
requirements, which authorization shall be binding upon all successor
Certificateholders.
ARTICLE XI.
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1. LIMITATION ON RIGHTS OF HOLDERS.
(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
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer,
the Special Servicer or the operation and management of the Trust, 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 person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) No Certificateholder, solely by virtue of its status
as Certificateholder, shall have any right by virtue or by availing 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 unless the
Holders of Certificates entitled to not less than 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 cost, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding and no
direction inconsistent with such written request has been given the Trustee
during such 60-day period by such Certificateholders; it being understood and
intended, and being expressly
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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 or by availing of any provision of this Agreement to
affect, disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner herein provided and for the benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.2. ACCESS TO LIST OF HOLDERS.
(a) If the Trustee is not acting as Certificate
Registrar, the Certificate Registrar will furnish or cause to be furnished to
the Trustee, within fifteen days after receipt by the Certificate Registrar of a
request by the Trustee in writing, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Certificateholders of each
Class as of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special
Servicer, the Master Servicer or three or more Holders (hereinafter referred to
as "APPLICANTS," with a single Person that (together with its Affiliates) is the
Holder of more than one Class of Certificates being viewed as a single
"APPLICANT" for these purposes) apply in writing to the Trustee, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, send, at such Person's expense, the written communication
proffered by the applicants to all Certificateholders at their addresses as they
appear in the Certificate Register. The Depositor, the Master Servicer and the
Special Servicer may each obtain, upon request, from the Trustee and the
Certificate Registrar a copy of the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate,
agrees with the Depositor, the Certificate Registrar and the Trustee that
neither the Depositor, the Certificate Registrar nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
SECTION 11.3. ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Agreement to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor.
Such instrument or instruments (as the action embodies therein and evidenced
thereby) are herein sometimes referred to as an "ACT" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agents shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee and the Depositor, if made in
the manner provided in this Section. The Trustee agrees to promptly notify the
Depositor of any such instrument or instruments received by it, and to promptly
forward copies of the same.
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(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to such notary public
or other officer the execution thereof. Whenever such execution is by an officer
of a corporation or a member of a partnership on behalf of such corporation or
partnership, such certificate or affidavit shall also constitute sufficient
proof of such officer's or member's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the individual
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Certificates (notwithstanding any
notation of ownership or other writing thereon made by anyone other than the
Trustee) shall be proved by the Certificate Register, and neither the Trustee
nor the Depositor shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Certificate shall
bind every future Holder of the same Certificate and the Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Depositor in reliance thereon, whether or not
notation of such action is made upon such Certificate.
ARTICLE XII.
REMIC ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC
Pool.
SECTION 12.1. REMIC ADMINISTRATION.
(a) An election will be made by the Trustee on behalf of
the Trust to treat the segregated pool of assets consisting of the Mortgage
Loans (other than the right to Excess Interest in respect of the Anticipated
Repayment Date Loans), such amounts as shall from time to time be held in the
Collection Account and the Distribution Account in respect thereof, the
Insurance Policies and any REO Properties and any other assets constituting
REMIC I (as set forth on the definition of REMIC I) as a REMIC under the Code.
Such election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the REMIC I Interests are issued.
For purposes of such election, each of the REMIC I Regular Interests shall be
designated as a separate class of "regular interests" in REMIC I and the Class
R-I Certificates shall be designated as the sole class of "residual interests"
in REMIC I.
An election will be made by the Trustee on behalf of REMIC II
to treat the segregated pool of assets consisting of the REMIC I Regular
Interests as a REMIC under the Code. Such election will be made on Form 1066 or
other appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in which
the REMIC II Interests are issued. For the purposes of such election, the REMIC
II Regular Interests shall be designated as the "regular interests" in REMIC II
and the Class R-II Certificates shall be designated as the sole class of
"residual interests" in REMIC II.
An election will be made by the Trustee on behalf of REMIC III
to treat the segregated pool of assets consisting of the REMIC II Regular
Interests as a REMIC under the Code. Such election
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will be made on Form 1066 or other appropriate federal tax or information return
or any appropriate state return for the taxable year ending on the last day of
the calendar year in which the REMIC III Certificates are issued. For purposes
of such election, the Class A-1, Class A-2, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, the Class N
Regular Interest represented by the Class N Certificates, and each Component
Interest of the Class X Certificates shall be designated as the "regular
interests" in REMIC III and the Class R-III Certificates shall be designated as
the sole class of "residual interests" in REMIC III.
The Trustee shall not permit the creation of any "interests"
(within the meaning of Treasury regulation Section 1.860D-1(b)(1)) in any of the
REMIC Pools other than the REMIC I Regular Interests, the REMIC II Regular
Interests and the interests evidenced by the Certificates.
(b) The Closing Date is hereby designated as the "Startup
Day" of each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
The latest possible maturity date for the REMIC I Interests, the REMIC II
Interests and the REMIC III Certificates shall be the Rated Final Distribution
Date.
The assets of the Trust Fund consisting of the right to any
Excess Interest in respect of the Anticipated Repayment Date Loans and the
Excess Interest Distribution Account shall be held by the Trustee for the
benefit of the Holders of the Class N Grantor Trust Interest represented by the
Class N Certificates, which Class N Certificates, in the aggregate, will
evidence 100% beneficial ownership of such assets (the "GRANTOR TRUST ASSETS")
from and after the Closing Date. It is intended that the portion of the Trust
Fund consisting of the grantor trust assets will be treated as a grantor trust
for federal income tax purposes, and each of the parties to this Agreement
agrees that it will not take any action that is inconsistent with establishing
or maintaining such treatment. The Trustee shall hold the grantor trust assets
separate and apart from the assets of REMIC I, REMIC II, and REMIC III.
(c) The Trustee shall pay all routine tax related
expenses (not including any taxes, however denominated, including any additions
to tax, penalties and interest) of each REMIC Pool and the grantor trust,
excluding any professional fees or extraordinary expenses related to audits or
any administrative or judicial proceedings with respect to any REMIC Pool or the
grantor trust that involve the Internal Revenue Service or state tax
authorities.
(d) The Trustee shall cause to be prepared, signed, and
timely filed with the Internal Revenue Service, on behalf of each REMIC Pool, an
application for a taxpayer identification number for each REMIC Pool and the
grantor trust on Internal Revenue Service Form SS-4. The Trustee, upon receipt
from the Internal Revenue Service of the Notice of Taxpayer Identification
Number Assigned, shall promptly forward a copy of such notice to the Depositor
and the Master Servicer. The Trustee shall prepare and file Form 8811 on behalf
of each REMIC Pool within 30 days after the Closing Date and shall designate an
appropriate Person to respond to inquiries by or on behalf of Certificateholders
for original issue discount and related information in accordance with
applicable provisions of the Code.
(e) The Trustee shall prepare, execute and file all of
each REMIC Pool's and the grantor trust's federal and state income or franchise
tax and information returns as such REMIC Pool's and the grantor trust's direct
representative; the expenses of preparing and filing such returns shall be borne
by the Trustee. The Depositor, the Master Servicer and the Special Servicer
shall each provide on a timely basis to the Trustee or its designee such
information with respect to the Trust or any REMIC Pool as is in the
Depositor's, the Master Servicer's or the Special Servicer's, as the case may
be, possession, that the Depositor, the Master Servicer or the Special Servicer,
as the case may be, has received or prepared by virtue of its acting in such
capacity hereunder and that is reasonably requested by
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the Trustee to enable it to perform its obligations under this subsection, and
the Trustee shall be entitled to conclusively rely on such information in the
performance of its obligations hereunder. The Depositor shall indemnify the
Trust, the Trustee and the Fiscal Agent for any liability or assessment against
any of them or any cost or expense (including attorneys' fees) incurred by any
of them resulting from any error in any of such tax or information returns
resulting from bad faith, negligence, or willful malfeasance of the Depositor in
providing any information for which the Depositor is responsible for preparing.
The Master Servicer and the Special Servicer shall each indemnify the Trust, the
Trustee, the Fiscal Agent and the Depositor for any liability or assessment
against the Trust, the Trustee, the Fiscal Agent or the Depositor, as the case
may be, and any expenses incurred in connection with such liability or
assessment (including attorney's fees) resulting from any error in any of such
tax or information returns resulting from errors in the information provided by
the Master Servicer or the Special Servicer, as the case may be, caused by the
negligence, willful misconduct or bad faith of the Master Servicer or the
Special Servicer, as the case may be. The Trustee shall be liable to the Trust,
the Master Servicer, the Special Servicer and the Depositor for any expense
incurred by the Trust, the Master Servicer, the Special Servicer or the
Depositor resulting from any error in any of such tax or information returns
resulting from errors in the preparation of such returns caused by the
negligence, willful misconduct or bad faith of the Trustee. Each indemnified
party shall immediately notify the indemnifying party or parties of the
existence of a claim for indemnification under this Section 12.1(e), and provide
the indemnifying party or parties, at the expense of such indemnifying party or
parties, an opportunity to contest the tax or assessment or expense giving rise
to such claim, provided that the failure to give such notification rights shall
not affect the indemnification rights in favor of the Trust under this Section
12.1(e). Any such indemnification shall survive the resignation or termination
of the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent
and the termination of this Agreement.
(f) The Trustee shall perform on behalf of each REMIC
Pool and the grantor trust all reporting and other tax compliance duties that
are the responsibility of such REMIC Pool and the grantor trust under the Code,
REMIC Provisions, or other compliance guidance issued by the Internal Revenue
Service or any state or local taxing authority. Among its other duties, the
Trustee shall provide (i) to the Internal Revenue Service or other Persons
(including, but not limited to, any Person that transferred a Residual
Certificate to a Disqualified Organization or to an agent that has acquired a
Residual Certificate on behalf of a Disqualified Organization) such information
as is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Disqualified Organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions.
(g) The Trustee shall forward to the Depositor copies of
quarterly and annual Tax Returns and Form 1099 information returns and such
other information within the control of the Trustee as the Depositor may
reasonably request in writing. Moreover, the Trustee shall forward to
Certificateholders such forms and furnish such information within its control as
are required by the Code to be furnished to them, shall prepare and file with
the appropriate state authorities as may to the actual knowledge of a
Responsible Officer of the Trustee be required by applicable law and shall
prepare and disseminate to Certificateholders Forms 1099 (or otherwise furnish
information within the control of the Trustee) to the extent required by
applicable law. The Trustee will make available to any Certificateholder any tax
related information required to be made available to such Certificateholder
pursuant to the Code and any Treasury Regulations thereunder.
(h) The Holder of Certificates representing the greatest
Percentage Interest in each Class of Residual Certificates shall be the Tax
Matters Person for the related REMIC Pool; provided that if Treasury Regulations
shall be modified to require another Person to be designated as Tax Matters
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Person, then such Person shall become Tax Matters Person at such time. The
duties of the Tax Matters Person for each of the REMIC Pools are hereby
delegated to the Trustee, and each Residual Certificateholder, by acceptance of
its Residual Certificate, agrees, on behalf of itself and all successor holders
of such Residual Certificate, to such delegation to the Trustee as their agent
and attorney in fact. If the Code or applicable Treasury regulations prohibits
the Trustee from signing any applicable Internal Revenue Service, court or other
administrative documents or from otherwise acting as Tax Matters Person (as an
agent or otherwise), the Trustee shall do or cause to be done whatever is
necessary for the signing of such documents and the taking of any other such
act, and the Residual Certificateholders shall reasonably cooperate with the
Trustee in connection therewith. The Trustee shall not be required to expend or
risk its own funds or otherwise incur any other financial liability in the
performance of its duties hereunder or in the exercise of any of its rights or
powers (except to the extent of the ordinary expenses of performing its duties
under, or as otherwise expressly provided in, this Agreement), 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.
(i) The Trustee, the Holders of the Residual
Certificates, the Master Servicer and the Special Servicer shall each exercise
reasonable care, to the extent within its control, and with respect to each of
the Trustee, the Master Servicer and the Special Servicer, within the scope of
its express duties, and shall each act in accordance with this Agreement and the
REMIC Provisions, in order to create and maintain the status of each REMIC Pool
as a REMIC and the grantor trust assets as a grantor trust or, as appropriate,
adopt a plan of complete liquidation in accordance with the REMIC Provisions and
Article X hereof.
(j) The Trustee, the Master Servicer, the Special
Servicer, the Fiscal Agent and the Holders of Residual Certificates shall not
take any action or fail to take any action or cause any REMIC Pool to take any
action or fail to take any action if any of such Persons knows or could, upon
the exercise of reasonable diligence, know, that, under the REMIC Provisions,
such action or failure to act, as the case may be, could (i) endanger the status
of any REMIC Pool as a REMIC or (ii) result in the imposition of a tax upon any
REMIC Pool (including but not limited to the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code, the tax on contributions to a REMIC
set forth in Section 860G(d) of the Code, or except as provided in Section
8.20(a) hereof, result in the imposition of a tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code (any of the
foregoing, an "ADVERSE REMIC EVENT")), unless the Trustee has received an
Opinion of Counsel (at the expense of the party seeking to take such action) to
the effect that the contemplated action will not endanger such status or result
in the imposition of such a tax. Any action required under this Section which
would result in an unusual or unexpected expense shall be undertaken at the
expense of the party seeking to have the Trustee, the Master Servicer, the
Special Servicer or the Holders of the Residual Certificates undertake such
action.
(k) In the event that any tax is imposed on the grantor
trust or on REMIC I, REMIC II or REMIC III, including, without limitation,
"prohibited transactions" taxes as defined in Section 860F(a)(2) of the Code,
any tax on "net income from foreclosure property" as defined in Section 860G(c)
of the Code, any taxes on contributions to REMIC I, REMIC II or REMIC III after
the Startup Day pursuant to Section 860G(d) of the Code, and any other tax
imposed by the Code or any applicable provisions of state or local tax laws
(other than any tax permitted to be incurred by the Special Servicer pursuant to
Section 8.20(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the Trustee, if such tax arises out of or results
from a breach of any of its obligations under this Article XII; (ii) the Special
Servicer, if such tax arises out of or results from a breach by the Special
Servicer of any of its
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obligations under Article VIII or this Article XII; (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 VIII or this Article XII; or (iv) the Trust in
all other instances. Any tax permitted to be incurred by the Special Servicer
pursuant to Section 8.20(a) shall be charged to and paid by the Master Servicer
(at the direction of the Trust) from the net income generated on the related REO
Property. Any such amounts payable by the Trust in respect of taxes shall be
paid by the Master Servicer (at the direction of the Trustee) out of amounts on
deposit in the Collection Account or, if appropriate, out of collections of
Excess Interest.
(l) The Trustee shall, for federal income tax purposes,
maintain books and records with respect to each REMIC Pool on a calendar year
and on an accrual basis. The books and records shall be sufficient concerning
the nature and amount of each REMIC Pool's investments to show that such REMIC
Pool has complied with the REMIC Provisions.
(m) None of the Trustee, the Master Servicer or the
Special Servicer shall enter into any arrangement by which any REMIC Pool will
receive a fee or other compensation for services (other than under the
circumstances described in, and subject to the conditions of, Section 8.20(a)).
(n) In order to enable the Trustee to perform its duties
as set forth herein, the Depositor shall provide, or cause to be provided, to
the Trustee within ten (10) days after the Closing Date all information or data
that the Trustee reasonably determines to be relevant for tax purposes on the
valuations and offering prices of the Certificates, including, without
limitation, the yield, Prepayment Assumption, Issue Prices and projected cash
flows of the Senior Certificates, Subordinate Certificates and Residual
Certificates, as applicable, and the projected cash flows of the Mortgage Loans.
Thereafter, the Depositor shall provide to the Trustee or its designee, promptly
upon request therefor, any such additional information or data within the
Depositor's possession or knowledge that the Trustee may, from time to time,
reasonably request in order to enable the Trustee to perform its duties as set
forth herein. The Trustee is hereby directed to use any and all such information
or data provided by the Depositor in the preparation of all federal and state
income or franchise tax and information returns and reports for each REMIC Pool
and the grantor trust to Certificateholders as required herein. The Depositor
hereby indemnifies the Trustee, the Fiscal Agent and each REMIC Pool for any
losses, liabilities, damages, claims, expenses (including attorneys' fees) or
assessments against the Trustee, the Fiscal Agent and each REMIC Pool arising
from any errors or miscalculations of the Trustee pursuant to this Section that
result from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Trustee (but not resulting from the
methodology employed by the Trustee) on a timely basis and such indemnification
shall survive the termination of this Agreement and the termination or
resignation of the Trustee or Fiscal Agent; provided, however, that to the
extent that any Certificates have been transferred to a Seller under
circumstances in which the fair market value of such Certificates is their issue
price, the Depositor may exclusively rely on the accuracy of a determination of
such fair market value by such Seller in supplying information to the Trustee
pursuant to this Section 12.1(n).
The Trustee agrees that all such information or data so
obtained by it is to be regarded as confidential information and agrees that it
shall use its best reasonable efforts to retain in confidence, and shall ensure
that its officers, employees and representatives retain in confidence, and shall
not disclose, without the prior written consent of the Depositor, any or all of
such information or data, or make any use whatsoever (other than for the
purposes contemplated by this Agreement) of any such information or data without
the prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section 12.1
(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
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professional advisers of the Trustee and its parent, or (ii) in connection with
enforcing its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the
Trustee, the Master Servicer and the Special Servicer each shall, to the extent
within its control and the scope of its duties more specifically set forth
herein, maintain the assets of each REMIC Pool as "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, subject to the "de minimis" exception of
Treasury Regulation Section 1.860D-1(b)(3).
(p) the Holders of the Class R-I, Class R-II and Class
R-III Certificates shall pay when due their pro rata share of any and all
federal, state and local taxes imposed on REMIC I, REMIC II or REMIC III, as
applicable, or their respective assets or transactions, including, without
limitation, "prohibited transaction" taxes, as defined in Section 860F of the
Code, any tax on contributions imposed by Section 860G(d) of the Code, and any
tax on "net income from foreclosure property" as defined in Section 860G(c) of
the Code. To the extent that such taxes are not paid by the Class R-I, Class
R-II or Class R-III Certificateholders, respectively, the Trustee shall pay such
remaining REMIC taxes out of current or future amounts otherwise distributable
to the respective Holder or, if no such amounts are available, out of other
amounts held in the Distribution Account.
SECTION 12.2. PROHIBITED TRANSACTIONS AND ACTIVITIES. None of
the Trustee, the Master Servicer or the Special Servicer shall, to the extent
within its control, permit the sale, disposition or substitution of any of the
Mortgage Loans (except in a disposition pursuant to (i) the foreclosure, default
or imminent default of a Mortgage Loan, (ii) the bankruptcy or insolvency of any
REMIC Pool, (iii) the termination of the REMIC Pools in a "qualified
liquidation" as defined in Section 860F(a)(4) of the Code, or (iv) a repurchase
or substitution by any Seller, as contemplated by Article II hereof), nor
acquire any assets for the Trust, except as provided herein, nor sell or dispose
of any investments in the Collection Account or Distribution Account for gain,
nor accept any contributions to any REMIC Pool (other than a cash contribution
during the 3-month period beginning on the Startup Day), unless it has received
an Opinion of Counsel (at the expense of the Person requesting such action) to
the effect that such sale, disposition, acquisition, substitution, or acceptance
will not (a) affect adversely the status of any REMIC Pool as a REMIC or of the
REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC III Regular
Certificates or the Component Interests of the Class X Certificates, as the case
may be, as the regular interests therein, (b) affect the distribution of
interest or principal on the Certificates, (c) result in the encumbrance of the
assets transferred or assigned to any REMIC Pool (except pursuant to the
provisions of this Agreement) or (d) cause any REMIC Pool to be subject to a tax
on "prohibited transactions" or "prohibited contributions" or other tax pursuant
to the REMIC Provisions.
SECTION 12.3. LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS
OF REMIC STATUS. In the event that any REMIC Pool fails to qualify as a REMIC,
loses its status as a REMIC, or incurs state or local taxes, or tax as a result
of a prohibited transaction or prohibited contribution subject to taxation under
the REMIC Provisions due to the negligent performance by the Trustee of its
duties and obligations set forth herein, the Trustee shall be liable to the
REMIC Pools and the Holders of the Residual Certificates for any and all losses,
claims, damages, liabilities or expenses ("LOSSES") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee shall not be liable pursuant to this Section 12.3 to the extent that
any such Losses are attributable to the action or inaction of the Master
Servicer, the Special Servicer, the Depositor or the Holders of such Residual
Certificates or to the extent that any such Losses result from any actions or
failures to act taken in reliance on an Opinion of Counsel or misinformation
provided by the Master Servicer, the Special Servicer, the Depositor or such
Holders of the Residual Certificates. The foregoing shall not be deemed
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to limit or restrict the rights and remedies of the Trust or the
Certificateholders under any other provision of this Agreement or now or
hereafter otherwise existing at law or in equity. The Trustee shall be entitled
to intervene in any litigation in connection with the foregoing and to maintain
control over its defense.
SECTION 12.4. MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding
anything to the contrary in this Agreement, neither the Trustee, the Master
Servicer nor the Special Servicer shall permit any modification of any Money
Term of a Mortgage Loan or a Specially Serviced Mortgage Loan unless the Trustee
and the Master Servicer have received a Nondisqualification Opinion or a ruling
to the same effect as a Nondisqualification Opinion from the Internal Revenue
Service (at the expense of the party making the request that the Master Servicer
or the Special Servicer modify the Mortgage Loan or a Specially Serviced
Mortgage Loan), provided that no Nondisqualification Opinion shall be required
to modify a Money Term of a Specially Serviced Mortgage Loan that has suffered a
payment default.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. BINDING NATURE OF AGREEMENT. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
SECTION 13.2. ENTIRE AGREEMENT. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied, oral
or written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof.
SECTION 13.3. AMENDMENT.
(a) This Agreement may be amended from time to time by
the parties hereto, without notice to or the consent of any of the Holders, (i)
to cure any ambiguity, (ii) to correct or supplement any provision herein which
may be inconsistent with any other provisions herein, (iii) to amend any
provision hereof to the extent necessary or desirable to maintain the status of
each REMIC Pool as a REMIC for the purposes of federal income tax law (or
comparable provisions of state income tax law), (iv) to make any other
provisions with respect to matters or questions ensuing under or with respect to
this Agreement not inconsistent with the provisions hereof, or (v) to modify,
add to or eliminate the provisions of Article III relating to transfers of
Residual Certificates as provided under such Article; provided that (x) no such
amendment shall adversely affect the status of any REMIC Pool as a REMIC and (y)
no such amendment effected pursuant to clause (i), (ii) or (iv) of the preceding
sentence shall adversely affect in any material respect the interests of any
Holder not consenting thereto. Prior to entering into any amendment without the
consent of Holders pursuant to this paragraph, the Trustee may require (at the
expense of the party requesting such amendment, except that if the Trustee
requests such amendment, such amendment shall be at the expense of the
Depositor, if the Depositor consents) a Nondisqualification Opinion and an
Opinion of Counsel to the effect that such amendment is permitted under this
paragraph. The placement of an "original issue discount" legend on, or any
change required to correct any such legend previously placed on, a Certificate
shall not be deemed an amendment to this Agreement.
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(b) This Agreement may also be amended from time to time
by the parties hereto with the consent of the Holders of Certificates entitled
to not less than 51% of the Voting Rights allocated to all Classes affected by
such amendment, 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 or the rights and obligations of any party
hereto; provided that no such amendment may (i) reduce in any manner the amount
of, or delay the timing of the distributions required to be made 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 the immediately
preceding clause (i), without the consent of all the Holders of Certificates of
such Class, or (iii) modify the provisions of this Section 13.3, without the
consent of all the Holders of Certificates. Prior to entering into any amendment
pursuant to this paragraph, the Trustee may require (at the expense of the party
requesting the amendment) a Nondisqualification Opinion and an Opinion of
Counsel to the effect that such amendment is permitted under this paragraph.
(c) Promptly after the execution of any such amendment,
the Trustee shall furnish written notification of the substance of such
amendment to each Holder and the Rating Agencies.
(d) It shall not be necessary for the consent of Holders
under this Section 13.3 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Holders shall be in the affirmative
and in writing and shall be subject to such reasonable regulations as the
Trustee may prescribe.
(e) Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 13.3, Certificates registered in the name of the Depositor, the
Master Servicer, the Special Servicer or any of their respective Affiliates
shall be entitled to the same Voting Rights with respect to matters described
above as they would if any other Person held such Certificates.
SECTION 13.4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN THE STATE OF NEW YORK, OTHER THAN THE PRINCIPLES SET FORTH IN SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
SECTION 13.5. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (a) in the case of the Depositor, Heller Financial Commercial
Mortgage Asset Corp., 500 West Monroe Street, Chicago, Illinois 60661,
Attention: Thomas Bax; (b) in the case of the Trustee, at the Corporate Trust
Office; (c) in the case of HFCF, 500 West Monroe Street, Chicago, Illinois
60661, Attention: Thomas Bax; (d) in the case of PMCF, 100 Mulberry Street,
Gateway Center 4, 9th Floor, Newark, New Jersey 07102, Attention: Marty Lanigan;
(e) in the case of the Master Servicer, First Union National Bank, NC 1075, 8739
Research Drive, Charlotte, NC 28262-1075, facsimile number (704) 593-7735,
Attention: Commerical Mortgage Pass-Through Certificates-Series 1999 PH-1; with
a copy to Legal Department, Attention: General Counsel, Timothy F. Danello,
facsimile number (704) 383-0649; (f) in the case of the Special Servicer, Lennar
Partners, Inc., 760 N.W. 107th Avenue, Miami, Florida 33172, facsimile number
(305) 226-7691, Attention: Steve Engel; or as to each party hereto such other
address as may hereafter be furnished by
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<PAGE>
such party to the other parties hereto in writing. Any notice required or
permitted to be given to a Holder shall be mailed by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice.
SECTION 13.6. SEVERABILITY OF PROVISIONS. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 13.7. INDULGENCES; NO WAIVERS. Neither the failure nor
any delay on the part of a party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, and no waiver of any right, remedy, power or privilege with respect
to any occurrence shall be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8. HEADINGS NOT TO AFFECT INTERPRETATION. The
headings contained in this Agreement are for convenience of reference only, and
shall not be used in the interpretation hereof.
SECTION 13.9. BENEFITS OF AGREEMENT. Nothing in this Agreement
or in the Certificates, express or implied, shall give to any Person, other than
the parties to this Agreement and their successors hereunder and the Holders of
the Certificates, any benefit or any legal or equitable right, power, remedy or
claim under this Agreement.
SECTION 13.10. SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Trustee (or, in the case of the items in clauses
(vi) and (vii), the successor trustee) shall give prompt notice to the Rating
Agencies and, except in the case of clause (viii), the Operating Adviser (or if
no Operating Adviser has been elected, the Majority Certificateholder of the
Controlling Class), of the occurrence of any of the following events of which it
has notice or actual knowledge:
(i) any amendment to this Agreement pursuant to
Section 13.3 hereof;
(ii) any repurchase or replacement of any Mortgage
Loan by a Seller;
(iii) waiver of a due-on-sale or due-on-encumbrance
clause as provided in Section 8.6;
(iv) any resignation or removal of the Master
Servicer, the Special Servicer or the Fiscal Agent pursuant to this
Agreement;
(v) the appointment of any successor to the Master
Servicer, the Special Servicer or the Fiscal Agent pursuant to this
Agreement;
(vi) the resignation or removal of the Trustee
pursuant to Section 7.6;
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(vii) the appointment of a successor trustee pursuant
to Section 7.7;
(viii) the election, resignation or removal of an
Operating Adviser pursuant to Section 8.32;
(ix) termination of the Trust pursuant to Article X
hereof;
(x) the final distribution to any Class of
Certificateholders; or
(xi) an Event of Default.
(b) All notices to the Rating Agencies shall be in
writing and sent by first class mail, telecopy or overnight courier, as follows:
If to Moody's, to:
Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Attention: Structured Finance Commercial Real Estate
Monitoring
If to Fitch, to:
Fitch IBCA, Inc.
One State Street Plaza
New York, NY 10004
Attention: Commercial Mortgage Surveillance
If to any other Rating Agency, at such address as shall be
provided in writing to the Depositor by such Rating Agency.
(c) The Master Servicer and the Special Servicer shall
each deliver to the Trustee, and the Trustee shall
deliver to the Rating Agencies and the Depositor,
copies of all reports prepared by the Master Servicer
or Special Servicer, as the case may be, pursuant to
this Agreement and required to be delivered to each
other, the Trustee or the Certificateholders,
together with any other information as reasonably
requested by the Rating Agencies and the Depositor.
(d) Any notice or other document required to be delivered
or mailed by the Depositor, the Master Servicer, the
Special Servicer or the Trustee shall be given by
such parties, respectively, on a best efforts basis
and only as a matter of courtesy and accommodation to
the Rating Agencies, unless otherwise specifically
required herein, and such parties, respectively,
shall have no liability for failure to deliver any
such notice or document to the Rating Agencies.
(e) The Trustee, the Master Servicer and the Special
Servicer, as applicable, shall furnish to each Rating
Agency with respect to each Mortgage Loan such
information as the Rating Agency shall reasonably
request and which the Trustee, Master Servicer or
Special Servicer can reasonably provide in
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accordance with applicable law and without waiving
any attorney-client privilege relating to such
information. The Trustee, Master Servicer and Special
Servicer, as applicable, may include any reasonable
disclaimer they deem appropriate with respect to such
information.
(f) The parties hereto acknowledge that the Sellers are
obligated to pay the surveillance fees of the Rating
Agencies.
SECTION 13.11. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
SECTION 13.12. INTENTION OF PARTIES.
(a) It is the express intent of the parties hereto that
the conveyance of the Mortgage Loans and related property to the Trustee, for
the benefit of the Certificateholders, by the Depositor as provided in Section
2.1 be, and be construed as, an absolute sale of the Mortgage Loans and related
property. It is, further, not the intention of the parties that such conveyance
be deemed a pledge of the Mortgage Loans and related property by the Depositor
to the Trustee to secure a debt or other obligation of the Depositor. However,
in the event that, notwithstanding the intent of the parties, such conveyance is
held not to be an absolute sale of the Mortgage Loans or any related property,
or the Mortgage Loans or any related property are for any other reason held to
be the property of the Depositor, then:
(i) This Agreement shall be deemed to be a security
agreement.
(ii) The conveyance provided for in Section 2.1 shall
be deemed to be a grant by the Depositor to the Trustee, for the
benefit of the Certificateholders, of a security interest in all of the
Depositor's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) All accounts, contract rights, general
intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit and uncertificated securities
consisting of, arising from or relating to any of the property
described in clauses (1)-(4) below: (1) the Mortgage Loans
(including, without limitation, the Mortgage Notes, the
related Mortgages, the related security agreements, and the
related title, hazard and other insurance policies) identified
on the Mortgage Loan Schedule, including all Replacement
Mortgage Loans, together with all payments and other
collections with respect thereto after the Cut-off Date (other
than Monthly Payments of principal and interest due on or
before the Cut-off Date) and the related Mortgage Files; (2)
the Distribution Account and the Collection Account,
including, without limitation, all funds and investments
therein and all income from the investment of funds therein
(including any accrued discount realized on liquidation of any
investment purchased at a discount); (3) the REMIC I Regular
Interests, the REMIC II Regular Interests and the
Certificates; and (4) the Mortgage Loan Purchase Agreements;
(B) All accounts, contract rights, general
intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit, uncertificated securities, and
other rights arising from or by virtue of the disposition of,
or collections with respect to, or insurance proceeds payable
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with respect to, or claims against other Persons with respect
to, all or any part of the collateral described in clause (A)
above (including any accrued discount realized on liquidation
of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the
collateral described in clauses (A) and (B) above.
(iii) The possession by the Trustee of the Mortgage
Notes, the Mortgages and such other goods, letters of credit, advices
of credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be "possession by the secured party," or
possession by a purchaser or a Person designated by him or her, for
purposes of perfecting the security interest pursuant to the Uniform
Commercial Code (including, without limitation, Sections 9-305, 8-313
or 8-321 thereof) as in force in each relevant jurisdiction.
(iv) Notifications to Persons holding such property,
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.
(b) The Depositor and, at the Depositor's direction, the
Master Servicer and the Trustee, at the Depositor's expense, shall, to the
extent consistent with this Agreement, take such reasonable actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the property described above, 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 the Agreement. The Master
Servicer shall file, at the direction and at the expense of the Depositor, all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any relevant
jurisdiction to perfect the Trustee's security interest in such property,
including, without limitation, continuation statements. In connection herewith,
the Trustee shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
(c) The Depositor shall not take any action inconsistent
with the Trust's ownership of the Mortgage Loans.
SECTION 13.13. RECORDATION OF AGREEMENT. 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, if any,
shall be effected by the Master Servicer at the expense of the Trust payable out
of the Collection Account, but only upon direction of the Trustee accompanied by
an Opinion of Counsel (the cost of which shall be payable out of the Collection
Account) to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders of the Trust.
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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 as of
the day and year first above written.
HELLER FINANCIAL COMMERCIAL
MORTGAGE ASSET CORP.,
as Depositor
By:
---------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
as Master Servicer
By:
---------------------------------
Name:
Title:
LENNAR PARTNERS, INC.,
as Special Servicer
By:
---------------------------------
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Name:
Title:
171
<PAGE>
ABN AMRO BANK N.V.,
as Fiscal Agent
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
172
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of May, 1999, before me, a notary public in
and for said State, personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed the within instrument as on
behalf of HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP., and acknowledged to
me that such corporation executed the within instrument pursuant to its by-laws
or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
---------------------------------
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of May, 1999, before me, a notary public in
and for said State, personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the within instrument as
of FIRST UNION NATIONAL BANK, and acknowledged to me that such corporation
executed the within instrument pursuant to its bylaws or a resolution of its
Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
---------------------------------
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of May, 1999, before me, a notary public in
and for said State, personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the within instrument as
on behalf of
LASALLE BANK NATIONAL ASSOCIATION, and acknowledged to me that
such nationally chartered bank executed the within instrument pursuant to its
by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
---------------------------------
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of May, 1999, before me, a notary public in
and for said State, personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be one of the persons who executed the within instrument as
on behalf of LENNAR PARTNERS, INC., and
acknowledged to me that such banking corporation executed the within instrument
pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
---------------------------------
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of May, 1999, before me, a notary public in
and for said State, personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the within instrument as
on behalf of ABN AMRO BANK N.V., and
acknowledged to me that such nationally chartered bank executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
---------------------------------
Notary Public
<PAGE>
- --------------------------------------------------------------------------------
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.,
as Depositor,
and
FIRST UNION NATIONAL BANK,
as Master Servicer,
and
LENNAR PARTNERS, INC.,
as Special Servicer,
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
and
ABN AMRO BANK N.V.,
as Fiscal Agent
--------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
Dated as of May 1, 1999
--------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999 PH-1
- --------------------------------------------------------------------------------
<PAGE>
EXHIBITS
<TABLE>
<CAPTION>
<S> <C> <C>
Exhibit A-1 Form of Class A-1 Certificate.................................................................A-1
Exhibit A-2 Form of Class A-2 Certificate.................................................................A-2
Exhibit A-3 Form of Class B Certificate...................................................................A-3
Exhibit A-4 Form of Class C Certificate...................................................................A-4
Exhibit A-5 Form of Class D Certificate...................................................................A-5
Exhibit A-6 Form of Class E Certificate...................................................................A-6
Exhibit A-7 Form of Class F Certificate...................................................................A-7
Exhibit A-8 Form of Class G Certificate...................................................................A-8
Exhibit A-9 Form of Class H Certificate...................................................................A-9
Exhibit A-10 Form of Class J Certificate..................................................................A-10
Exhibit A-11 Form of Class K Certificate..................................................................A-11
Exhibit A-12 Form of Class L Certificate..................................................................A-12
Exhibit A-13 Form of Class M Certificate..................................................................A-13
Exhibit A-14 Form of Class N Certificate..................................................................A-14
Exhibit A-15 Form of Class R-I Certificate................................................................A-15
Exhibit A-16 Form of Class R-II Certificate...............................................................A-16
Exhibit A-17 Form of Class R-III Certificate..............................................................A-17
Exhibit A-18 Form of Class X Certificate..................................................................A-18
Exhibit B-1 Form of Initial Certification of Trustee......................................................B-1
Exhibit B-2 Form of Final Certification of Trustee........................................................B-2
Exhibit C Form of Request for Release.....................................................................C
Exhibit D-1 Transfers of Definitive Privately Offered Certificates.......................................D1-1
Exhibit D-2A Form I of Transferee Certificate For Transfers of Definitive Privately Offered
Certificates..............................................................................D2-1
Annex 1 Qualified Institutional Buyer Status Under SEC Rule 144A.....................................D2-3
Annex 2 Qualified Institutional Buyer Status Under SEC Rule 144A.....................................D2-6
Exhibit D-2B Form II of Transferee Certificate for Transfers of Definitive Privately
Offered Certificates......................................................................D2-8
Exhibit D-3A Form I of Transferee Certificate for Transfers of Interests in Book-Entry
Privately Offered Certificates............................................................D3-1
Exhibit D-3B Form II of Transferee Certificate for Transfers of Interests in Book-Entry
Privately Offered Certificates............................................................D3-3
Annex 1 Qualified Institutional Buyer Status Under SEC Rule 144A.....................................D3-5
Annex 2 Qualified Institutional Buyer Status Under SEC Rule 144A.....................................D3-8
Exhibit E Form of Transferor Certificate for Transfers of REMIC Residual Certificate......................E
Exhibit F Form of Transfer Affidavit and Agreement for Transfers of REMIC Residual
Certificates.................................................................................F
Exhibit G Form of Monthly Certificateholder Report........................................................G
Exhibit H-1 Comparative Financial Status Report...........................................................H-1
Exhibit H-2 Delinquent Loan Status Report.................................................................H-2
Exhibit H-3 Historical Loan Modification Report...........................................................H-3
Exhibit H-4 Historical Loss Estimate Report...............................................................H-4
Exhibit H-5 REO Status Report.............................................................................H-5
Exhibit H-6 Watch List ...................................................................................H-6
Exhibit H-7 Operating Statement Analysis..................................................................H-7
Exhibit H-8 NOI Adjustment Worksheet .....................................................................H-8
Exhibit H-9 CSSA Reports .................................................................................H-9
<PAGE>
Exhibit H-10 CSSA Reports ................................................................................H-11
Exhibit I Mortgage Loan Report..........................................................................I-1
SCHEDULES
Schedule I HFCF Loan Schedule..............................................................................I
Schedule II PMCF Loan Schedule.............................................................................II
Schedule III Interest Reserve Loans........................................................................III
Schedule IV Letter of Credit Loans.........................................................................IV
</TABLE>
<PAGE>
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT").
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS A-1 CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS NOT TREATED AS
HAVING BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS _____% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _____% PER ANNUM,
COMPOUNDED MONTHLY. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY IS THE
EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY
DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING
THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE
HYPERAMORTIZATION DATE IN THE CASE OF THE
A-1-1
<PAGE>
HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS A-1 CERTIFICATE AS OF THE
CLOSING DATE $203,000,000
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER:
LENNAR PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS A-1
CERTIFICATE AS OF THE CLOSING DATE:
$203,000,000 NO. 1
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class A-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class A-1 Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the
A-1-3
<PAGE>
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-1-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-1-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-1-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
AUTHORIZED OFFICER
Dated: May ___, 1999
A-1-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
----------------------------------
AUTHORIZED SIGNATORY
A-1-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common... (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
-------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------- ---------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------
SIGNATURE GUARANTEED The signature must be
guaranteed by a commercial bank or trust
company or by a member firm of the New York
Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-1-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-1-10
<PAGE>
EXHIBIT A-2
[FORM OF CLASS A-2 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT").
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-2 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS A-2 CERTIFICATE WAS ISSUED ON MAY ___, 1999 AND IS NOT TREATED AS
HAVING BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS _____% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _____% PER ANNUM,
COMPOUNDED MONTHLY. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY IS THE
EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY
DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING
THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE
HYPERAMORTIZATION DATE IN THE CASE OF THE
A-2-1
<PAGE>
HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-2-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: ___% CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS A-2 CERTIFICATE AS OF THE
CLOSING DATE $543,066,000
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS A-2
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$543,066,000
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class A-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class A-2 Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-
A-2-3
<PAGE>
Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-2-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-2-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-2-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
AUTHORIZED OFFICER
Dated: May ___, 1999
A-2-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
----------------------------------
AUTHORIZED SIGNATORY
A-2-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common... (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------
- ------------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------- -----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- ---------------------------------------------
SIGNATURE GUARANTEED The signature must be
guaranteed by a commercial bank or trust
company or by a member firm of the New York
Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-2-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-2-10
<PAGE>
EXHIBIT A-3
[FORM OF CLASS B CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS B CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS NOT TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS _______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE.
A-3-1
<PAGE>
THE YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE
APPROXIMATELY _______% PER ANNUM, COMPOUNDED MONTHLY. THE METHOD USED TO
CALCULATE THE YIELD TO MATURITY IS THE EXACT METHOD. THE ACTUAL YIELD TO
MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED AMOUNTS. THE
PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS 0% CPR AND
THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF
THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-3-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS B CERTIFICATE AS OF THE
CLOSING DATE $22,917,000
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS B CERTIFICATE
AS OF THE CLOSING DATE: $22,917,000 NO. 1
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class B Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the
A-3-3
<PAGE>
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-3-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any
A-3-5
<PAGE>
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-3-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-3-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
------------------------------------
AUTHORIZED SIGNATORY
A-3-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common... (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------------
- -----------------------------
---------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ -----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-3-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-3-10
<PAGE>
EXHIBIT A-4
[FORM OF CLASS C CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS C CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS NOT TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE.
A-4-1
<PAGE>
THE YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE
APPROXIMATELY ______% PER ANNUM, COMPOUNDED MONTHLY. THE METHOD USED TO
CALCULATE THE YIELD TO MATURITY IS THE EXACT METHOD. THE ACTUAL YIELD TO
MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED AMOUNTS. THE
PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS 0% CPR AND
THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF
THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-4-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS C CERTIFICATE AS OF THE
CLOSING DATE $20,370,000
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS C CERTIFICATE
AS OF THE CLOSING DATE: $20,370,000 NO. 1
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class C Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class C Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the
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Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
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<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any
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<PAGE>
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
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<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
---------------------------------
AUTHORIZED SIGNATORY
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------------------
- -----------------------------------
--------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------- ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- -------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
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<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-4-10
<PAGE>
EXHIBIT A-5
[FORM OF CLASS D CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS D CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST",
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<PAGE>
THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE WOULD BE
APPROXIMATELY ________%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE FOR
PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _______% PER ANNUM, COMPOUNDED
MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL
PERIOD (MAY __, 1999 TO JUNE 15, 1999) FOR PURPOSES OF COMPUTING OID ON THIS
CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL AMOUNT OF THIS CERTIFICATE WOULD BE
APPROXIMATELY _______%. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY AND
THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD IS THE EXACT METHOD.
THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE
PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO
MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE
HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION LOANS. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE
OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS D CERTIFICATE AS OF THE
CLOSING DATE $53,472,000
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS D CERTIFICATE
AS OF THE CLOSING DATE: $53,472,000 NO. 1
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class D Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class D Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the
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<PAGE>
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
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<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any
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<PAGE>
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-5-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-5-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
--------------------------------
AUTHORIZED SIGNATORY
A-5-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
- ---------------------------------------
--------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------- ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- -------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-5-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-5-10
<PAGE>
EXHIBIT A-6
[FORM OF CLASS E CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON
A-6-1
<PAGE>
THE CERTIFICATES ALLOCABLE TO THIS CLASS E CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS E CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY _______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY ______% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (MAY __, 1999 TO JUNE 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY _______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-6-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE ____ % CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS G CERTIFICATE AS OF THE
CLOSING DATE $12,732,000
DATE OF POOLING & SERVICING
AGREEMENT: AS OF MAY 1, 1999 MASTER SERVICER: FIRST UNION
NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS E CERTIFICATE
AS OF THE CLOSING DATE: $12,732,000 NO. 1
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class E Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class E Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the
A-6-3
<PAGE>
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-6-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-6-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-6-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-6-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
-----------------------------------
AUTHORIZED SIGNATORY
A-6-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------
- ----------------------------------
---------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------- -----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- -------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-6-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-6-10
<PAGE>
EXHIBIT A-7
[FORM OF CLASS F CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON
A-7-1
<PAGE>
THE CERTIFICATES ALLOCABLE TO THIS CLASS F CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS F CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY _______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY ______% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (MAY __, 1999 TO JUNE 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY _______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-7-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE ____ % CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS G CERTIFICATE AS OF THE
CLOSING DATE $38,194,000
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS F CERTIFICATE
AS OF THE CLOSING DATE: $38,194,000 NO. 1
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class F Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class F Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the Pooling
A-7-3
<PAGE>
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-7-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-7-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-7-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-7-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
----------------------------------
AUTHORIZED SIGNATORY
A-7-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-7-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-7-10
<PAGE>
EXHIBIT A-8
[FORM OF CLASS G CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON
A-8-1
<PAGE>
THE CERTIFICATES ALLOCABLE TO THIS CLASS G CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS G CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 74.6209% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY _______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _____% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (MAY __, 1999 TO JUNE 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY ______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-8-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS G CERTIFICATE AS OF THE
CLOSING DATE $17,825,000
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS G CERTIFICATE
AS OF THE CLOSING DATE: $17,825,000 NO. 1
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class G Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class G Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the
A-8-3
<PAGE>
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-8-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-8-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-8-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-8-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
-------------------------------------
AUTHORIZED SIGNATORY
A-8-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-8-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-8-10
<PAGE>
EXHIBIT A-9
[FORM OF CLASS H CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON
A-9-1
<PAGE>
THE CERTIFICATES ALLOCABLE TO THIS CLASS H CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS H CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY ______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _________% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (MAY __, 1999 TO JUNE 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY ______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-9-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE PRINCIPAL BALANCE
OF THIS CLASS H CERTIFICATE AS OF THE
CLOSING DATE $35,648,000
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS H CERTIFICATE
AS OF THE CLOSING DATE: $35,648,000 NO. 1
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class H Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class H Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the
A-9-3
<PAGE>
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-9-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-9-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-9-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-9-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
----------------------------------
AUTHORIZED SIGNATORY
A-9-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-9-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
____________________ account number ______________ or, if mailed by check, to
__________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-9-10
<PAGE>
EXHIBIT A-10
[FORM OF CLASS J CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON
A-10-1
<PAGE>
THE CERTIFICATES ALLOCABLE TO THIS CLASS J CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS J CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY ______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _______% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (MAY __, 1999 TO JUNE 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY _______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-10-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS J CERTIFICATE AS OF THE
CLOSING DATE $20,370,000
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS J CERTIFICATE
AS OF THE CLOSING DATE: $20,370,000 NO. 1
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class J Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the Pooling
A-10-3
<PAGE>
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-10-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-10-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-10-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-10-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
------------------------------------
AUTHORIZED SIGNATORY
A-10-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-10-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
___________________ account number ___________________ or, if mailed by check,
to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-10-10
<PAGE>
EXHIBIT A-11
[FORM OF CLASS K CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON
A-11-1
<PAGE>
THE CERTIFICATES ALLOCABLE TO THIS CLASS K CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS K CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS _____% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY _______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY ________% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (MAY __, 1999 TO JUNE 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY ______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-11-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS K CERTIFICATE AS OF THE
CLOSING DATE $7,639,000
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS K CERTIFICATE
AS OF THE CLOSING DATE: $7,639,000 NO. 1
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class K Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class K Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the
A-11-3
<PAGE>
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-11-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-11-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-11-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-11-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
--------------------------------
AUTHORIZED SIGNATORY
A-11-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-11-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-11-10
<PAGE>
EXHIBIT A-12
[FORM OF CLASS L CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON
A-12-1
<PAGE>
THE CERTIFICATES ALLOCABLE TO THIS CLASS L CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS L CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS _____% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY ________%, (II) THE YIELD TO MATURITY OF THIS
CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY ________% PER
ANNUM, COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE
INITIAL ACCRUAL PERIOD (MAY __, 1999 TO JUNE 15, 1999) FOR PURPOSES OF COMPUTING
OID ON THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY ______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-12-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS L CERTIFICATE AS OF THE
CLOSING DATE $15,278,000
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS L CERTIFICATE
AS OF THE CLOSING DATE: $15,278,000 NO. 1
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class L Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class L Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the
A-12-3
<PAGE>
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-12-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-12-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-12-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-12-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
-------------------------------------
AUTHORIZED SIGNATORY
A-12-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-12-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-12-10
<PAGE>
EXHIBIT A-13
[FORM OF CLASS M CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON
A-13-1
<PAGE>
THE CERTIFICATES ALLOCABLE TO THIS CLASS M CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS M CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY _______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _______% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (MAY __, 1999 TO JUNE 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY _______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-13-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS M CERTIFICATE AS OF THE
CLOSING DATE $7,638,000
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS M CERTIFICATE
AS OF THE CLOSING DATE: $7,638,000 NO. 1
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class M Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the
A-13-3
<PAGE>
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-13-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-13-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-13-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-13-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
------------------------------------
AUTHORIZED SIGNATORY
A-13-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-13-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-13-10
<PAGE>
EXHIBIT A-14
[FORM OF CLASS N CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON
A-14-1
<PAGE>
THE CERTIFICATES ALLOCABLE TO THIS CLASS N CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS N CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS _______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY _________%, (II) THE YIELD TO MATURITY OF
THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY ________%
PER ANNUM, COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO
THE INITIAL ACCRUAL PERIOD (MAY __, 1999 TO JUNE 15, 1999) FOR PURPOSES OF
COMPUTING OID ON THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL
AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY 0.0607%. THE METHOD USED TO
CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS
CERTIFICATE MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION
USED IN CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE
BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE
HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-14-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS N CERTIFICATE AS OF THE
CLOSING DATE $20,371,763
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. __________
BALANCE OF THE CLASS N CERTIFICATE
AS OF THE CLOSING DATE: $20,371,763 NO. 1
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class N Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class N Certificates. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-
A-14-3
<PAGE>
Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-14-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-14-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-14-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-14-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
-------------------------------------
AUTHORIZED SIGNATORY
A-14-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-14-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-14-10
<PAGE>
EXHIBIT A-15
[FORM OF CLASS R-I CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING
(OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES
ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY ITS BOARD OF
A-15-1
<PAGE>
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN 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), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE WHOSE INCOME FROM SOURCES WITHOUT THE UNITED
STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES OR A TRUST SUBJECT TO THE CONTROL OF A UNITED STATES FIDUCIARY
AND THE PRIMARY SUPERVISION OF A UNITED STATES COURT (ANY SUCH PERSON BEING
HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF
SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION
OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-15-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
PERCENTAGE INTEREST OF THIS CLASS MASTER SERVICER: FIRST UNION
R-I CERTIFICATE: _____% NATIONAL BANK
DATE OF POOLING & SERVICING INITIAL SPECIAL SERVICER: LENNAR
AGREEMENT: AS OF MAY 1, 1999 PARTNERS, INC.
CUT-OFF DATE: MAY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: MAY __, 1999
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
NO. _________
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT ____________________ is the registered owner of the interest
evidenced by this Certificate in the Class R-I Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Heller Financial Commercial
Mortgage Asset Corp. (hereinafter called the "Depositor", which term includes
any successor entity under the Pooling and Servicing Agreement), the Trustee,
the Master Servicer, the Special Servicer and the Fiscal Agent, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Collection Account, the Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-I Certificates specified on the face hereof. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations
A-15-3
<PAGE>
of the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the Holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
A-15-4
<PAGE>
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall
A-15-5
<PAGE>
terminate on the earlier of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan held by the Trust and (B) the disposition
of the last REO Property held by the Trust and (ii) the sale of all Mortgage
Loans and any REO Properties held by the Trust in accordance with Section
10.1(b) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-15-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-15-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
---------------------------------
AUTHORIZED SIGNATORY
A-15-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-15-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-15-10
<PAGE>
EXHIBIT A-16
[FORM OF CLASS R-II CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING
(OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES
ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY ITS BOARD OF
A-16-1
<PAGE>
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN 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), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE WHOSE INCOME FROM SOURCES WITHOUT THE UNITED
STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES OR A TRUST SUBJECT TO THE CONTROL OF A UNITED STATES FIDUCIARY
AND THE PRIMARY SUPERVISION OF A UNITED STATES COURT (ANY SUCH PERSON BEING
HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF
SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION
OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-II CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-16-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
PERCENTAGE INTEREST OF THIS CLASS MASTER SERVICER: FIRST UNION
R-II CERTIFICATE: -----% NATIONAL BANK
DATE OF POOLING & SERVICING INITIAL SPECIAL SERVICER: LENNAR
AGREEMENT: AS OF MAY 1, 1999 PARTNERS, INC.
CUT-OFF DATE: MAY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: MAY __, 1999
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
NO. _________
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT _________________________________ is the registered owner of
the interest evidenced by this Certificate in the Class R-II Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Heller Financial
Commercial Mortgage Asset Corp. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Master Servicer and the Special Servicer, a summary of certain of
the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations
A-16-3
<PAGE>
of the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the Holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
A-16-4
<PAGE>
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall
A-16-5
<PAGE>
terminate on the earlier of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan held by the Trust and (B) the disposition
of the last REO Property held by the Trust and (ii) the sale of all Mortgage
Loans and any REO Properties held by the Trust in accordance with Section
10.1(b) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-16-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-16-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
----------------------------------
AUTHORIZED SIGNATORY
A-16-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-16-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-16-10
<PAGE>
EXHIBIT A-17
[FORM OF CLASS R-III CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
TRUSTEE TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY ITS BOARD OF
A-17-1
<PAGE>
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN 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), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE WHOSE INCOME FROM SOURCES WITHOUT THE UNITED
STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES OR A TRUST SUBJECT TO THE CONTROL OF A UNITED STATES FIDUCIARY
AND THE PRIMARY SUPERVISION OF A UNITED STATES COURT (ANY SUCH PERSON BEING
HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF
SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION
OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-17-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
PERCENTAGE INTEREST OF THIS CLASS MASTER SERVICER: FIRST UNION
R-III CERTIFICATE:-----% NATIONAL BANK
DATE OF POOLING & SERVICING INITIAL SPECIAL SERVICER:
AGREEMENT: AS OF MAY 1, 1999 LENNAR PARTNERS, INC.
CUT-OFF DATE: MAY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: MAY __, 1999
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
NO. _________
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT ____________________ is the registered owner of the interest
evidenced by this Certificate in the Class R-III Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Heller Financial
Commercial Mortgage Asset Corp. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Master Servicer and the Special Servicer, a summary of certain of
the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-III Certificates specified on the face hereof. The Certificates are designated
as the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations
A-17-3
<PAGE>
of the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the Holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
A-17-4
<PAGE>
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall
A-17-5
<PAGE>
terminate on the earlier of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan held by the Trust and (B) the disposition
of the last REO Property held by the Trust and (ii) the sale of all Mortgage
Loans and any REO Properties held by the Trust in accordance with Section
10.1(b) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-17-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-17-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
------------------------------------
AUTHORIZED SIGNATORY
A-17-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-17-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-17-10
<PAGE>
EXHIBIT A-18
[FORM OF CLASS X CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT").
THE PORTION OF THE CERTIFICATE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY
THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO
THE CERTIFICATE NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH
BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE
NOTIONAL AMOUNT BY INQUIRY OF THE TRUSTEE.
A-18-1
<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS AN INVESTMENT
UNIT COMPRISED OF FIFTEEN COMPONENT INTERESTS, EACH OF WHICH IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS X CERTIFICATE WAS ISSUED ON MAY __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 2.8334% OF THE ORIGINAL
NOTIONAL PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE
PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED
IN PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL NOTIONAL PRINCIPAL AMOUNT OF
THIS CERTIFICATE WOULD BE APPROXIMATELY ______%, (II) THE YIELD TO MATURITY OF
THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _______%
PER ANNUM, COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO
THE INITIAL ACCRUAL PERIOD (MAY __, 1999 TO JUNE 15, 1999) FOR PURPOSES OF
COMPUTING OID ON PRINCIPAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY
______%. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF
OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL
YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED
AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS
0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN
THE CASE OF THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-18-2
<PAGE>
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999 PH-1
INITIAL PASS-THROUGH RATE: ____% INITIAL CERTIFICATE NOTIONAL
AMOUNT OF THIS CLASS X
CERTIFICATE: $___________
DATE OF POOLING & SERVICING MASTER SERVICER: FIRST UNION
AGREEMENT: AS OF MAY 1, 1999 NATIONAL BANK
CUT-OFF DATE: MAY 1, 1999 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MAY __, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JUNE 15, 1999
AGGREGATE CERTIFICATE NOTIONAL CUSIP NO. [_________]
AMOUNT OF THE CLASS X CERTIFICATES
AS OF THE CLOSING DATE: $___________ NO. 1
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class X Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Heller Financial Commercial Mortgage
Asset Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Notional Amount of this
Certificate specified on the face hereof by the initial aggregate Certificate
Notional Amount of the Class X Certificates. The Certificates are designated as
the Heller Financial Commercial Mortgage Asset Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999 PH-1 and are issued in eighteen Classes
as specifically set forth in the Pooling
A-18-3
<PAGE>
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 15th day of each month or,
if such 15th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Notional Amount of this Certificate immediately prior to each
Distribution Date. Interest allocated to this Certificate on any Distribution
Date will be in an amount due to this Certificate's pro rata share of the amount
to be distributed on the Certificates of this Class as of such Distribution
Date, with a final distribution to be made upon retirement of this Certificate
as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-18-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-18-5
<PAGE>
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-18-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------
AUTHORIZED OFFICER
Dated: May __, 1999
A-18-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
BY:
------------------------------------
AUTHORIZED SIGNATORY
A-18-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
----------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------ ----------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face
of this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
A-18-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-18-10
<PAGE>
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
May __, 1999
Heller Financial Commercial Mortgage Asset Corp.
500 West Monroe Street
Chicago, Illinois 60661
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Heller Financial Commercial Mortgage Asset Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1999 PH-1
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the
Pooling and Servicing Agreement, the undersigned hereby certifies that, with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject
to the exceptions noted in the schedule of exceptions attached hereto, that: (a)
all documents specified in clause (i) of the definition of "Mortgage File" are
in its possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, (c) based on its examination
and only as to the foregoing documents, the loan number set forth in the
Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the
information contained in such documents, and (d) each Mortgage Note has been
endorsed as provided in clause (i) of the definition of "Mortgage File". The
Trustee makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any such documents contained in each Mortgage
File or any of the Mortgage Loans identified in the Mortgage Loan Schedule, or
(ii) the collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor
has granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized words and phrases used herein and not otherwise
defined herein shall have the respective meanings assigned to them in the
Pooling and Servicing Agreement. This Certificate is subject in all respects to
the terms of said Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION, as Trustee
By:___________________________
Name:
Title:
B-1-1
<PAGE>
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
May __, 1999
Heller Financial Commercial Mortgage Asset Corp.
500 West Monroe Street
Chicago, Illinois 60661
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Heller Financial Commercial Mortgage Asset Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1999 PH-1
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the
Pooling and Servicing Agreement, the undersigned hereby certifies that, with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject
to the exceptions noted in the schedule of exceptions attached hereto, that: (a)
all documents specified in clauses (i), (ii), (iii), (ix), (xii) (to the extent
it relates to the foregoing) and (xiii) are in its possession, (b) documents
delivered to it or a Custodian as part of the related Mortgage File have been
reviewed by it or such Custodian and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (c) based on its examination and only as to the
foregoing documents, the street address of the Mortgaged Property (but not the
zip code) and the name of the Mortgagor set forth in the Mortgage Loan Schedule
respecting such Mortgage Loan accurately reflects the information contained in
the documents in the Mortgage File, and (d) each Mortgage Note has been endorsed
as provided in clauses (i) of the definition of "Mortgage File". The Trustee
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents contained in each Mortgage
File or any of the Trustee Mortgage Loans identified in the Mortgage Loan
Schedule, or (ii) the collectibility, insurability, effectiveness or suitability
of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor
has granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
This Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE BANK NATIONAL ASSOCIATION, as Trustee
By:___________________________
Name:
Title:
B-2-1
<PAGE>
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LASALLE BANK NATIONAL ASSOCIATION
135 S. LaSalle Street
Suite 200
Chicago, Illinois 60674
Attn: _________________________________
Re: Heller Financial Commercial Mortgage Asset Corp., Commercial
Morgan Pass-Through Certificates, Series 1999 PH-1
Date: [____________, ____, ___]
In connection with the administration of the Mortgage Loans held by you
as Trustee under the Pooling and Servicing Agreement dated as of May 1, 1999, by
and among Heller Financial Commercial Mortgage Asset Corp., as Depositor, First
Union National Bank, as Master Servicer, Lennar Partners, Inc., as Special
Servicer and LASALLE BANK NATIONAL ASSOCIATION, as Trustee (the "Pooling and
Servicing Agreement"), the undersigned hereby requests a release of the Mortgage
File held by you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Property Name:
Address:
Loan No.:
Reason for requesting file:
____1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all amounts
received in connection with the Mortgage Loan have been or will be,
following the [Master] [Special] Servicer's release of the Trustee
Mortgage File, credited to the Collection Account or the Distribution
Account pursuant to the Pooling and Servicing Agreement.)
____2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the Purchase
Price has been credited to the Distribution Account pursuant to the
Pooling and Servicing Agreement.)
____3. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a Qualifying
Substitute Mortgage Loan has been assigned and delivered to you along
with the related Mortgage File pursuant to the Pooling and Servicing
Agreement.)
____4. The Mortgage Loan is being foreclosed.
____5. Other. (Describe)
C-1
<PAGE>
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned to you, except if the Mortgage Loan has
been paid in full, repurchased or substituted for by a Qualifying Substitute
Mortgage Loan (in which case the Mortgage File will be retained by us
permanently), when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them
in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By:__________________________________
Name:
Title:
C-2
<PAGE>
EXHIBIT D-1
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
To: LASALLE BANK NATIONAL ASSOCIATION
135 S. LaSalle Street
Suite 200
Chicago, Illinois 60674
Attn: _________________________________
Re: Heller Financial Commercial Mortgage Asset Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999 PH-1
(the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_______________ (the "Transferor") to ________________ (the "Transferee") of a
Certificate (the "Transferred Certificate") having an initial Principal Balance
or Notional Amount as of May __, 1999 (the "Closing Date") of $__________. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), to be dated as of May 1, 1999, among Heller
Financial Commercial Mortgage Asset Corp. as depositor (the "Depositor"), First
Union National Bank, as master servicer, Lennar Partners, Inc., as special
servicer and LASALLE BANK NATIONAL ASSOCIATION, as trustee. All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificate with the full right to transfer such Certificate free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of any Certificate, any
interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, which (in the case of any of the
acts described in clauses (a) through (e) hereof) would constitute a
distribution of any Certificate under the Securities Act of 1933, as
amended (the "Securities Act"), or would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of any
Certificate pursuant to the Securities Act or any state securities
laws.
Very truly yours,
(Transferor)
By:______________________________________
Name:____________________________________
Title:___________________________________
D-1-1
<PAGE>
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
To: LASALLE BANK NATIONAL ASSOCIATION
135 S. LaSalle Street
Suite 200
Chicago, Illinois 60674
Attn: _________________________________
Re: Heller Financial Commercial Mortgage Asset Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999 PH-1
(the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to __________________ (the "Transferee") of
Class __________ Certificates having an initial Principal Balance or Notional
Amount as of May __, 1999 (the "Closing Date") of $____________ (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, to be
dated as of May 1, 1999 (the "Pooling and Servicing Agreement"), among Heller
Financial Commercial Mortgage Asset Corp., as depositor (the "Depositor"), First
Union National Bank, as master servicer, Lennar Partners, Inc., as special
servicer, and LASALLE BANK NATIONAL ASSOCIATION, as trustee. All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act") and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee
is aware that the sale to it of the Transferred Certificates is being
made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of a
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a Qualified Institutional Buyer that
purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
D-2-1
<PAGE>
2. The Transferee has been furnished with all information
regarding (a) the Transferred Certificates and distributions thereon,
(b) the nature, performance and servicing of the Mortgage Loans, (c)
the Pooling and Servicing Agreement, and (d) any credit enhancement
mechanism associated with the Transferred Certificates, that it has
requested.
Very truly yours,
(Transferor)
By:______________________________________
Name:____________________________________
Title:___________________________________
D-2-2
<PAGE>
ANNEX 1 TO EXHIBIT D-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 owned and/or invested
on a discretionary basis $______________________1 in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the
criteria in the category marked below.
____ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Certificate in the case of a U.S. bank,
and not more than 18 months preceding such date of sale for a foreign bank or
equivalent institution.
____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a State
or Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as of a date not more
than 16 months preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months preceding such
date of sale for a foreign savings and loan association or equivalent
institution.
____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and
- -------------------
1 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that
case, Transferee must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
D-2-3
<PAGE>
which is subject to supervision by the insurance commissioner or a similar
official or agency of a State, U.S. territory or the District of Columbia.
____ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Adviser. The Transferee is an investment adviser
registered under the Investment Advisers Act of 1940, as amended.
____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection (a)(1) of
Rule 144A pursuant to which it qualifies. Note that registered investment
companies should complete Annex 2 rather than this Annex 1.)
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by
the Transferee, if the Transferee is a dealer, (iii) bank deposit notes
and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on
a discretionary basis by the Transferee, the Transferee did not include
any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the
Transferee, the Transferee used the cost of such securities to the
Transferee, unless the Transferee reports its securities holdings in
its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has
been published, in which case the securities were valued at market.
Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only
if such subsidiaries are consolidated with the Transferee in its
financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are
managed under the Transferee's direction. However, such securities were
not included if the Transferee is a majority-owned, consolidated
subsidiary of another enterprise and the Transferee is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to
the Transferred Certificates are relying and will continue to rely on
the statements made herein because one or more sales to the Transferee
may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "No", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
D-2-4
<PAGE>
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.
______________________________________________
Print Name of Transferee
By:
Name ___________________________________
Title:___________________________________
Date: ___________________________________
D-2-5
<PAGE>
ANNEX 2 TO EXHIBIT D-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 certificate being
transferred (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act of
1933, as amended ("Rule 144A") because the Transferee is part of a
Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment
company registered under the Investment Company Act of 1940, as
amended, and (ii) as marked below, the Transferee alone owned and/or
invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family
of Investment Companies, the cost of such securities was used, unless
the Transferee of any member of the Transferee's Family of Investment
Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities of such entity were valued at
market.
The Transferee owned and/or invested on a discretionary basis
$__________ in securities (other than the excluded securities referred to below)
as of the end of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
The Transferee is part of a Family of Investment Companies which owned
in the aggregate $____________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the same
parent or because one investment adviser is a majority owned subsidiary
of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are
part of the Transferee's Family of Investment Companies, (ii) bank
deposit notes and certificates of deposit, (iii) loan participations,
(iv) repurchase agreements, (v) securities owned but subject to a
repurchase agreement and (vi) currency, interest rate and commodity
swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a
D-2-6
<PAGE>
discretionary basis by the Transferee, or owned by the Transferee's
Family of Investment Companies, the securities referred to in this
paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying
and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "No", then in
each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a
"qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice by the undersigned, the Transferee's purchase
of the Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
______________________________________________
Print Name of Transferee or Adviser
By:
Name ___________________________________
Title:___________________________________
Date: ___________________________________
IF AN ADVISER:
______________________________________________
Print Name of Transferee
Date:_________________________________________
D-2-7
<PAGE>
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
To: LASALLE BANK NATIONAL ASSOCIATION
135 S. LaSalle Street
Suite 200
Chicago, Illinois 60674
Attn: _________________________________
Re: Heller Financial Commercial Mortgage Asset Corp.,
Commercial Mortgage Pass-Through Certificates,
Series 1999 PH-1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
__________________ (the "Transferor") to _____________________ (the
"Transferee") of Class ____ Certificates having an initial Principal Balance or
Notional Amount as of May __, 1999 (the "Closing Date") of $___________ (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, to be
dated as of May 1, 1999 (the "Pooling and Servicing Agreement") among Heller
Financial Commercial Mortgage Asset Corp., as depositor (the "Depositor"), First
Union National Bank, as master servicer, Lennar Partners, Inc., as special
servicer and LASALLE BANK NATIONAL ASSOCIATION, as trustee. All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates
for its own account for investment and not with a view to or for sale
or transfer in connection with any distribution thereof, in whole or in
part, in any manner which would violate the Securities Act of 1933, as
amended (the "Securities Act"), or any applicable state securities
laws.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificates belong has not been
and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated to so
register or qualify the Class of Certificates to which the Transferred
Certificates belong, and (c) no Transferred Certificate may be resold
or transferred unless it is (i) registered pursuant to the Securities
Act and registered or qualified pursuant any applicable state
securities laws or (ii) sold or transferred in transactions which are
exempt from such registration and qualification and the Certificate
Registrar has received either: (A) a certificate from the
Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit ___ to the Pooling and Servicing Agreement and
a certificate from such Certificateholder's prospective transferee
substantially in the form attached either as Exhibit ___ or as Exhibit
___ to the Pooling and Servicing Agreement; or (C) an opinion of
counsel satisfactory to the Trustee with respect to the availability of
such exemption from registration under the Securities Act, together
with copies of the written certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which
such opinion is based.
D-2-8
<PAGE>
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate except in compliance
with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate
will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS
OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a pledge, disposition or other transfer of any Certificate, any
interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation with respect to any Certificate, any interest in
any Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with
respect to any Certificate, any interest in any Certificate or any
other similar security, which (in the case of any of the acts described
in clauses (a) through (e) above) would constitute a distribution of
the Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of
the Securities Act or any state securities law or would require
registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any Certificate, any interest in any
Certificate or any other similar security.
6. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the Pooling and Servicing Agreement and the
Trust Fund created pursuant thereto, (d) the nature, performance and
servicing of the Mortgage Loans, and (e) all related matters, that it
has requested.
D-2-9
<PAGE>
7. The Transferee is an "accredited investor" as defined in
any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or an entity in which all of the equity owners come
within such paragraphs. The Transferee has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificate; the Transferee has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
(Transferee)
By:____________________________________
Name______________________________
Title:____________________________
D-2-10
<PAGE>
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Heller Financial Commercial Mortgage Asset Corp.,
Commercial Mortgage Pass-Through Certificates, Series
1999 PH-1 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to __________________ (the "Transferee")
of a Certificate (the "Transferred Certificate") having an initial Principal
Balance or Notional Amount as of May __, 1999 (the "Closing Date") of
$____________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of May 1,
1999, among Heller Financial Commercial Mortgage Asset Corp., as depositor (the
"Depositor"), First Union National Bank, as master servicer, Lennar Partners,
Inc., as special servicer and LASALLE BANK NATIONAL ASSOCIATION, as trustee. All
terms used herein and not otherwise defined shall have the meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, and for the benefit of the Depositor and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for
its own account for investment and not with a view to or for sale or
transfer in connection with any distribution thereof, in whole or in
part, in any manner which would violate the Securities Act of 1933, as
amended (the "Securities Act"), or any applicable state securities
laws.
2. The Transferee understands that (a) the Certificates have
not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated to so register or qualify the Certificates and (c) no
interest in the Certificates may be sold or transferred unless (i) such
Certificates are registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities
laws or (ii) such interest sold or transferred in transactions which
are exempt from such registration and qualification and the Certificate
Owner desiring to effect such transfer has received either (A) a
certification from such Certificate Owner's prospective transferee
(substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an
opinion of counsel satisfactory to the Certificate Registrar with
respect to the availability of such exemption, together with copies of
the certification(s) from the transferor and/or transferee setting
forth the facts surrounding the transfer upon which such opinion is
based.
3. The Transferee understands that it may not sell or
otherwise transfer any portion of its interest in the Transferred
Certificate except in compliance with the provisions of Section 3.3 of
the Pooling and Servicing Agreement, which provisions it has carefully
reviewed.
4. Transferee understands that each Transferred Certificate
will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES
D-3-1
<PAGE>
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a pledge, disposition or other transfer of any Certificate, any
interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, that (in the case of any of the
acts described in clauses (a) through (e) above) would constitute a
distribution of any Certificate under the Securities Act, would render
the disposition of an Certificate a violation of Section 5 of the
Securities Act or any state securities law or would require
registration or qualification of any Certificate pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate.
6. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the Pooling and Servicing Agreement and (d)
all related matters, that it has requested.
7. The Transferee is an institutional "accredited investor" as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act
and has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in
the Certificates; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed
investment decision; and the Transferee is able to bear the economic
risks of such an investment and can afford a complete loss of such
investment.
Very truly yours,
(Transferee)
By:____________________________________
Name______________________________
Title:____________________________
D-3-2
<PAGE>
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Heller Financial Commercial Mortgage Asset Corp.,
Commercial Mortgage Pass-Through Certificates, Series
1999 PH-1 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _____________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Principal Balance or Notional Amount as of May __, 1999 (the "Closing Date") of
$________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of May 1, 1999,
among Heller Financial Commercial Mortgage Asset Corp. as depositor (the
"Depositor"), First Union National Bank, as master servicer, Lennar Partners,
Inc., as special servicer and LASALLE BANK NATIONAL ASSOCIATION, as trustee. All
terms used herein and not otherwise defined shall have the meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, and for the benefit of the Depositor and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of
1933, as amended (the "Securities Act"), and has completed one of the
forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it is being made in
reliance on Rule 144A. The Transferee is acquiring the Transferred
Certificate for its own account or for the account of a qualified
institutional buyer, and understands that such Certificate or any
interest therein may be resold, pledged or transferred only (i) to a
person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificate belongs have not been
and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to
register or qualify the Certificates and (c) no interest in the
Certificates may be sold or transferred unless (i) such Certificates
are registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) such
interest sold or transferred in transactions which are exempt from such
registration and qualification and the Certificate Owner desiring to
effect such transfer has received either (A) a certification from such
Certificate Owner's prospective transferee (substantially in the form
attached to the Pooling and Servicing Agreement) setting forth the
facts surrounding the transfer or (B) an opinion of counsel
satisfactory to the Certificate Registrar with respect to the
availability of such exemption, together with copies of the
certification(s) from the transferor and/or transferee setting forth
the facts surrounding the transfer upon which such opinion is based.
D-3-3
<PAGE>
3. The Transferee understands that it may not sell or
otherwise transfer any portion of its interest in the Transferred
Certificate except in compliance with the provisions of Section 3.3 of
the Pooling and Servicing Agreement, which provisions it has carefully
reviewed.
4. Transferee understands that each Transferred Certificate
will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
5. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the
nature, performance and servicing of the Mortgage Loans, (c) the
Pooling and Servicing Agreement, and (d) any credit enhancement
mechanism associated with the Transferred Certificate, that it has
requested.
Very truly yours,
(Transferee)
By:____________________________________
Name______________________________
Title:____________________________
D-3-4
<PAGE>
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor and the Trustee, as
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificate (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because (i) the Transferee owned and/or invested
on a discretionary basis $__________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the
criteria in the category marked below.
____ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and loan
association or equivalent institution.
D-3-5
<PAGE>
____ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
____ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
____ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
____ Investment Adviser. The Transferee is an investment adviser
registered under the Investment Advisers Act of 1940, as
amended.
____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by
the Transferee, if the Transferee is a dealer, (iii) bank deposit notes
and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on
a discretionary basis by the Transferee, the Transferee did not include
any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the
Transferee, the Transferee used the cost of such securities to the
Transferee, unless the Transferee reports its securities holdings in
its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has
been published, in which case the securities were valued at market.
Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only
if such subsidiaries are consolidated with the Transferee in its
financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are
managed under the Transferee's direction. However, such securities were
not included if the Transferee is a majority-owned, consolidated
subsidiary of another enterprise and the Transferee is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
D-3-6
<PAGE>
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to
the Transferred Certificate are relying and will continue to rely on
the statements made herein because one or more sales to the Transferee
may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account?
6. If the answer to the foregoing question is "No", then in
each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a
"qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and
conclusions herein. Until such notice is given, the Transferee's
purchase of the Transferred Certificate will constitute a reaffirmation
of this certification as of the date of such purchase. In addition, if
the Transferee is a bank or savings and loan as provided above, the
Transferee agrees that it will furnish to such parties any updated
annual financial statements that become available on or before the date
of such purchase, promptly after they become available.
_______________________________________________
Print Name of Transferee
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
Date:__________________________________________
D-3-7
<PAGE>
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor and the Trustee, with
respect to the commercial mortgage pass-through certificate being transferred
(the "Transferred Certificate") as described in the Transferee Certificate to
which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificate (the
"Transferee") or, if the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act of
1933, as amended ("Rule 144A"), because the Transferee is part of a
Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment
company registered under the Investment Company Act of 1940, as
amended, and (ii) as marked below, the Transferee alone owned and/or
invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family
of Investment Company, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment
Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $_________ in securities (other
than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the same
parent or because one investment adviser is a majority owned subsidiary
of the other).
D-3-8
<PAGE>
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are
part of the Transferee's Family of Investment Companies, (ii) bank
deposit notes and certificates of deposit, (iii) loan participations,
(iv) repurchase agreements, (v) securities owned but subject to a
repurchase agreement and (vi) currency, interest rate and commodity
swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or
owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying
and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account?
6. If the answer to the foregoing question is "No", then in
each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a
"qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification by
the undersigned as of the date of such purchase.
__________________________________________________
Print Name of Transferee or Adviser
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
IF AN ADVISER:
__________________________________________________
Print Name of Transferee
Date:_____________________________________________
D-3-9
<PAGE>
EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
[Date]
To: LASALLE BANK NATIONAL ASSOCIATION
135 S. LaSalle Street
Suite 200
Chicago, Illinois 60674
Attn: ___________________________
Re: Heller Financial Commercial Mortgage Asset Corp.,
Commercial Mortgage Pass-Through Certificates, Series
1999 PH-1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by ________________ (the "Transferor") to __________________ (the
"Transferee") of [Class R-I] [Class R-II] [Class R-III] Certificates evidencing
a ____% Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of May 1, 1999 (the "Pooling and
Servicing Agreement"), among Heller Financial Commercial Mortgage Asset Corp.,
as depositor, First Union National Bank, as master servicer, Lennar Partners,
Inc., as special servicer and LASALLE BANK NATIONAL ASSOCIATION, as trustee. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit F. The Transferor does not know or
believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
E-1
<PAGE>
_______________________________________
(Transferor)
By:____________________________________
Name___________________________________
Title:_________________________________
E-2
<PAGE>
EXHIBIT F
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
__________________________, being first duly sworn, deposes
and says that:
1. He/She is the ___________________________ of
___________________ (the prospective transferee (the "Transferee") of Heller
Financial Commercial Mortgage Asset Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999 PH-1, Class [R-I] [R-II] [R-III], evidencing a ____%
Percentage Interest in such Class (the "Residual Certificates"), a
___________________ duly organized and validly existing under the laws of
_________________, on behalf of which he/she makes this affidavit. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement pursuant to
which the Residual Certificates were issued (the "Pooling and Servicing
Agreement").
2. The Transferee (i) is, and as of the date of transfer will
be, a "Permitted Transferee" and will endeavor to remain a "Permitted
Transferee" for so long as it holds the Residual Certificates, and (ii) is
acquiring the Residual Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Permitted Transferee" is any
Person other than a "disqualified organization" or a possession of the United
States. (For this purpose, a "disqualified organization" means the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income.)
3. The Transferee is aware (i) of the tax that would be
imposed on transfers of the Residual Certificates to "disqualified
organizations" under the Code that applies to all transfers of the Residual
Certificates; (ii) that such tax would be on the transferor or, if such transfer
is through an agent (which Person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such Person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such Person does not have actual
knowledge that the affidavit is false; and (iv) that the Residual Certificates
may be a "noneconomic residual interest" within the meaning of Treasury
regulation Section 1.860E-1(c) and that the transferor of a "noneconomic
residual interest" will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
is to enable the transferor to impede the assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a
"pass-through entity" holding the Residual Certificates if at any time during
the taxable year of the pass-through entity a non-Permitted Transferee is the
record holder of an interest in such entity. (For this purpose, a "pass-through
entity" includes a regulated
F-1
<PAGE>
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 Certificates by the Transferee unless
the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
_________________.
8. The Transferee has reviewed the provisions of Section
3.3(f) of the Pooling and Servicing Agreement, a description of which provisions
is set forth in the Residual Certificates (in particular, clause (iv)(A) of
Section 3.3(f) which authorizes the Trustee to deliver payments on the Residual
Certificate to a Person other than the Transferee and clause (iv)(B) of Section
3.3(f) which authorizes the Trustee to negotiate a mandatory sale of the
Residual Certificates, in either case, in the event that the Transferee holds
such Residual Certificates in violation of Section 3.3(f)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or
any sale of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of
the transferor that the Transferee intends to pay any taxes associated with
holding the Residual Certificates as they become due, fully understanding that
it may incur tax liabilities in excess of any cash flows generated by the
Residual Certificates.
11. The Transferee will, in connection with any transfer that
it makes of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E to the Pooling and
Servicing Agreement in which it will represent and warrant, among other things,
that it is not transferring the Residual Certificates to impede the assessment
or collection of any tax and that it has at the time of such transfer conducted
a reasonable investigation of the financial condition of the proposed transferee
as contemplated by Treasury regulation Section 1.860E-l(c)(4)(i) and has
satisfied the requirements of such provision.
12. The Transferee is a citizen or resident of the United
States, a corporation, a partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________ and its corporate seal to be hereunto attached, attested by its
[Assistant] Secretary, this ___ day of _______________, 199_.
F-2
<PAGE>
[NAME OF TRANSFEREE]
By:________________________________
[Name of Officer]
[Title of Officer]
- ---------------------------
[Corporate Seal]
ATTEST:
- ---------------------------
[Assistant] Secretary
Personally appeared before me the above-named
____________________, known or proved to me to be the same person who executed
the foregoing instrument and to be the ___________________________ of the
Transferee, and acknowledged to me that he/she executed the same as his/her free
act and deed and the free act and deed of the Transferee
Subscribed and sworn before me this ___ day of
__________________, 199_.
_____________________________________
NOTARY PUBLIC
COUNTY OF____________________________
STATE OF_____________________________
My Commission expires the ______
day of __________________, 19___.
F-3
<PAGE>
EXHIBIT G
FORM OF MONTHLY CERTIFICATE HOLDER REPORT
AVAILABLE FROM THE TRUSTEE
G-1
<PAGE>
EXHIBIT H-1
COMPARATIVE FINANCIAL STATUS REPORT
H-1-1
<PAGE>
HMAC 1999-PH-1
COMPARATIVE FINANCIAL STATUS REPORT
AS OF
<TABLE>
<CAPTION>
ORIGINAL UNDERWRITING INFORMATION
INFORMATION
----------------------------------------------
BASIS YEAR
------------------
PRO LAST
SUP PROPERTY SCHEDULED PAID ANNUAL FINANCIAL
LOAN INSPECT LOAN THRU DEBT INFO AS OF % TOTAL (1)
# CITY ST DATE BALANCE DATE SERVICE DATE OCC REVENUE $ NOI DSCR
- -------- ------ ---- ---------- ----------- ------ --------- ------------ ----- ------------- ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
List all loans currently in deal with or without information
largest to smallest loan
Total: $ $ WA $ $ WA
RECEIVED
Financial Loans Balance
Information:
# % $ %
Current Full Year:
Current Full Yr. Received with DSC (less
than) 1:
Prior Full Year:
Prior Full Yr. Received with DSC (less
than) 1:
</TABLE>
(1) DSCR should match to Operating Statement and is normally calculated using
NOI/Debt Service
(2) Net change should compare the latest year to the underwriting year
<PAGE>
<TABLE>
<CAPTION>
2ND PRECEDING ANNUAL OPERATING PRECEDING ANNUAL OPERATING
INFORMATION INFORMATION
- ----------------------------------------------------------- -----------------------------------------------------------
AS OF NORMALIZED AS OF NORMALIZED
- ----------------------- ------------------- ------------------------ ------------------
LAST LAST
PROPERTY FINANCIAL PROPERTY FINANCIAL
INSPECT INFO AS OF % TOTAL NORMALIZED (1) INSPECT INFO AS OF % TOTAL NORMALIZED (1)
DATE DATE OCC REVENUE $ NOI DSCR DATE DATE OCC REVENUE $ NOI DSCR
- ---------- ------------ ----- --------- ------------ ------ ---------- ------------- ----- --------- ------------ -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
WA $ $ WA WA $ $ WA
RECEIVED
Loans Balance
# % $ %
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
TRAILING FINANCIAL
INFORMATION NET CHANGE
- ---------------------------------------------------- -------------------------
(2)
MONTH REPORTED NORMALIZED PRECEDING & BASIS
- --------------------- ---------------- -----------------
FINANCIAL % %
INFO AS OF % TOTAL % TOTAL (1)
DATE OCC REVENUE $ NOI DSCR % OCC REV DSCR
- ------------ ------ --------- ------- ------ ------- ------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
WA $ $ WA WA $ WA
</TABLE>
<PAGE>
EXHIBIT H-2
DELINQUENT LOAN STATUS REPORT
H-2-1
<PAGE>
HMAC 1999-PH-1
DELINQUENT LOAN STATUS REPORT
AS OF
<TABLE>
<CAPTION>
SHORT NAME TOTAL P&I TOTAL
PROSPECTUS (WHEN PROPERTY SQ FT OR PAID THRU SCHEDULED LOAN ADVANCES EXPENSES
ID APPROPRIATE) TYPE CITY STATE UNITS DATE BALANCE TO DATE TO DATE
-- ------------ ---- ---- ----- ----- ---- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
90+ DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
CURRENT APPRAISAL
PROSPECTUS OTHER ADVANCES TOTAL CURRENT INTEREST MATURITY LTM NOI LTM LTM VALUATION BPO OR
ID (TAXES & ESCROW) EXPOSURE MONTHLY P&I RATE DATE DATE NOI DSCR VALUE DATE INTERNAL VALUE**
-- ---------------- -------- ----------- ---- ---- ---- --- ---- ----- ---- ----------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90+ DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
LOSS USING ESTIMATED EXPECTED
PROSPECTUS 92% APPR. RECOVERY TRANSFER CLOSING DATE NOI FCL SALE WORKOUT
ID OR BPO (f) % DATE DATE FILED DATE STRATEGY COMMENTS
-- ---------- --------- ---- ---- ----- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
90+ DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT 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 etc....)
It is possible to combine the status codes if the loan is going in more than one
direction. (i.e. FCL/Mod, BK/Mod, BK/FCL/ DPO)
** App - Appraisal, BPO - Broker opinion, Int. - Internal Value
<PAGE>
EXHIBIT H-3
HISTORICAL LOAN MODIFICATION REPORT
H-3-1
<PAGE>
HMAC 1999-PH-1
HISTORICAL LOAN MODIFICATION REPORT
AS OF
<TABLE>
<CAPTION>
BALANCE
MOD/ WHEN SENT TO BALANCE AT THE
PROSPECTUS EXTENTION EFFECT SPECIAL EFFECTIVE DATE OF # MTHS FOR
ID CITY STATE FLAG DATE SERVICER REHABILITATION OLD RATE 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:
MATURITY DATE
EXTENTIONS:
TOTAL:
<CAPTION>
(2) EST.
FUTURE
INTEREST LOSS
TOTAL # MTHS (1)REALIZED TO TRUST $
PROSPECTUS NEW FOR CHANGE OF LOSS TO TRUST (RATE
ID NEW RATE OLD P&I NEW P&I OLD MATURITY MATURITY MOD $ REDUCTION) COMMENT
- --------------- ---------- --------- --------- -------------- ---------- --------------- --------------- -------------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TOTAL FOR ALL
LOANS:
TOTAL FOR LOANS
IN CURRENT
MONTH:
MODIFICATIONS:
MATURITY DATE
EXTENTIONS:
TOTAL:
</TABLE>
- ----
* The information in these columns is from a particular point in time and
should not change on this report once assigned.
(1) Actual principal loss taken by bonds
(2) Expressed future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
<PAGE>
EXHIBIT H-4
HISTORICAL LOSS ESTIMATE REPORT
H-4-1
<PAGE>
HMAC 1999-PH-1
HISTORICAL LOSS ESTIMATE REPORT
AS OF
<TABLE>
<CAPTION>
LATEST
SHORT NAME % APPRAISAL OR
PROSPECTUS (WHEN PROPERTY RECEIVED BROKERS EFFECT DATE OF
ID APPROPRIATE) TYPE CITY STATE FROM SALE OPINION SALE
- ------------ -------------- ---------- ------ ------- ----------- -------------- ----------------
<S> <C> <C> <C> <C> <C> <C> <C>
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
- ---------------------------
<CAPTION>
NET AMT
PROSPECTUS RECEIVED SCHEDULED TOTAL P&I TOTAL SERVICING ACTUAL LOSSES
ID SALES PRICE FROM SALE BALANCE ADVANCED EXPENSES FEES EXPENSE NET PROCEEDS PASSED THRU
- ------------ ------------- ----------- ----------- ----------- ---------- -------------- -------------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
TOTAL ALL
LOANS:
CURRENT
- ------------
MONTH ONLY:
- ------------
<CAPTION>
DATE MINOR TOTAL LOSS LOSS %OF
PROSPECTUS DATE LOSS MINOR ADJ TO ADJ PASSED WITH SCHEDULED
ID PASSED THRU TRUST THRU ADJUSTMENT BALANCE
- ------------ ------------- -------------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
TOTAL ALL
LOANS:
CURRENT
- ------------
MONTH ONLY:
- ------------
</TABLE>
<PAGE>
EXHIBIT H-5
REO STATUS REPORT
H-5-1
<PAGE>
HMAC 1999-PH-1
REO STATUS REPORT
AS OF
<TABLE>
<CAPTION>
SQ FT PAID
PROSPECTUS PROPERTY PROPERTY OR THRU
ID NAME TYPE CITY STATE UNITS DATE
- ------------ ---------- ---------- ------ ------- ------- ------
<S> <C> <C> <C> <C> <C> <C>
(1) USE THE FOLLOWING CODES; App.-Appraisal, BPO-Brokers
Opinion, Int-Internal Value
<CAPTION>
TOTAL OTHER
SCHEDULED P&I TOTAL ADVANCES CURRENT
PROSPECTUS LOAN ADVANCES EXPENSES (TAXES & TOTAL MONTHLY MATURITY
ID BALANCE TO DATE TO DATE ESCROW) EXPOSURE P&I DATE
- ------------ ----------- ---------- ---------- ---------- ---------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
(1) USE THE FOLLOWING
CODES; App.-Appraisal,
BPO-Brokers Opinion,
Int-Internal Value
</TABLE>
<TABLE>
<CAPTION>
LOSS
CAP VALUE APPRAISAL USING
LTM LTM RATE USING BPO OR 92%
NOI NOI/ ASIGN VALUATION NOI & INTERNAL APPR. OR
DATE DSC *** DATE CAP RATE VALUE** BPO
- ------ ------ ------- ----------- ---------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C>
<CAPTION>
TOTAL
LTM ESTIMATED APPRAISAL REO PENDING
NOI RECOVERY REDUCTION TRANSFER ACQUISITION RESOLUTION
DATE % REALIZED DATE DATE DATE COMMENTS
- ------ ----------- ----------- ---------- ------------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT H-6
WATCH LIST
H-6-1
<PAGE>
SERVICER WATCH LIST
AS OF
<TABLE>
<CAPTION>
PROSUP PROPERTY CURRENT PAID LTM*
LOAN SHORT PROPERTY SCHEDULED THRU MATURITY CURRENT
NUMBER NAME TYPE CITY STATE BALANCE DATE DATE DSCR COMMENT / REASON ON WATCH LIST
- -------- ---------- ---------- ------ ------- ----------- ------ ---------- -------- -------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TOTAL: $ 0.00
</TABLE>
*LTM -- Last 12 months either trailing or last annual
<PAGE>
EXHIBIT H-7
OPERATING STATEMENT ANALYSIS
H-7-1
<PAGE>
HMAC 1999-PH-1
FORM OF OPERATING STATEMENT ANALYSIS REPORT
AS OF
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW
Control Number
Current Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations Underwriting 1994 1995 1996 Trailing
Occupancy Rate *
Average Rental Rate
</TABLE>
* Occupancy rates are year end or the ending
date of the financial statement for
the period.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME: NO. OF MOS.
Number of Mos. PRIOR YR CURR YR
Period ended UNDERWRITING 1996 1997 1998 98 TRAILING** 1997-BASE 1997-1996
Statement Classification BASE LINE NORMALIZED NORMALIZED NORMALIZED AS OF VARIANCE VARIANCE
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Through/Escalations
Other Income
EFFECTIVE GROSS INCOME: $ -- $ -- $ -- $ -- $ -- % %
</TABLE>
Normalized - Full year Financial statements have
been reviewed by the underwriter or servicer
** Servicer will not be expected to Normalize
these YTD numbers
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
General & Admin
Repairs & Maintenance
Management Fees
Payroll and Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES $ -- $ -- $ -- $ -- $ -- % %
OPERATING EXPENSE RATIO
NET OPERATING INCOME $ -- $ -- $ -- $ -- $ --
Leasing Commissions
Tenant Improvements
Replacement Reserve
TOTAL CAPITAL ITEMS $ -- $ -- $ -- $ -- $ -- $ --
NOI AFTER CAPITAL ITEMS $ -- $ -- $ -- $ -- $ -- $ --
DEBT SERVICE (PER SERVICER) $ -- $ -- $ -- $ -- $ -- $ --
CASH FLOW AFTER DEBT SERVICE $ -- $ -- $ -- $ -- $ -- $ --
(1) DSCR: (NOI/DEBT SERVICE)
DSCR: (AFTER RESERVES/CAP EXP)
SOURCE OF FINANCIAL DATA:
</TABLE>
(i.e. operating statements, financial
statements, tax return, other)
NOTES AND ASSUMPTIONS:
- --------------------------------------------------------------------------------
The years shown above will roll always showing a three year history.
This report may vary depending on the property type and because of the way
information may vary in each borrower's statement.
Rental Income needs to be broken down, differently whenever possible for each
property type as follows, Retail: 1) Base Rent 2) percentage rents on cashflow
Hotel: 1) Room Revenue 2) Food/Beverage A34Nursing Home: 1) Private 2)
Medicaid 3) Medicare
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
(1) Used in the comparative Financial Status Report
<PAGE>
EXHIBIT H-8
NOI ADJUSTMENT WORKSHEET
H-8-1
<PAGE>
HMAC 1999-PH-1
FORM OF NOI ADJUSTMENT WORKSHEET FOR "YEAR"
AS OF
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW
Control Number
Current Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations Borrower Adjustment Normalized
Occupancy Rate *
Average Rental Rate
</TABLE>
- --------------------------------------------------------------------------------
* Occupancy rates are year end or the ending
date of the financial statement for
the period.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
INCOME:
Number of Mos. "Year"
Period ended Borrower Adjustmet Normalized
Statement Classification Actual
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Through/Escalations
Other Income
EFFECTIVE GROSS INCOME: $ -- $ -- $ --
</TABLE>
Normalized - Full year Financial statements have
been reviewed by the servicer
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
General & Admin
Repairs & Maintenance
Management Fees
Payroll and Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES $ -- $ -- $ --
OPERATING EXPENSE RATIO
NET OPERATING INCOME $ -- $ -- $ --
Leasing Commissions
Tenant Improvements
Replacement Reserve
TOTAL CAPITAL ITEMS $ -- $ -- $ --
NOI AFTER CAPITAL ITEMS $ -- $ -- $ --
DEBT SERVICE (PER SERVICER) $ -- $ -- $ --
CASH FLOW AFTER DEBT SERVICE $ -- $ -- $ --
(1) DSCR: (NOI/DEBT SERVICE)
DSCR: (AFTER RESERVES/CAP EXP)
SOURCE OF FINANCIAL DATA:
- --------------------------------------------------------------------------------
</TABLE>
(i.e. 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.
The "Normalized" column is used in the Operating Statement Analysis Report.
This report may vary depending on the property type and because of the way
information may vary in each borrower's statement.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
(1) Used in the comparative Financial Status Report
<PAGE>
EXHIBIT H-9
CSSA REPORTS
H-9-1
<PAGE>
HMAC 1999-PH-1
CSSA PROPERTY FILE AS OF 01/11/99
<TABLE>
<CAPTION>
1 2 3 4 5 6 7 8
PROSUP OTHER PROP DISTRIB CROSSED COLLATERALIZED
TRAN ID LOAN ID LOAN ID ID ID DATE LOAN GROUPING PROPERTY NAME ADDRESS
- ------- ------- ------- -- -- ---- ------------- ------------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 2 9 10 11 12 13 14 15 16
ZIP PROPERTY YEAR YEAR NET SF
TRAN ID LOAN ID CITY STATE CODE COUNTY TYPE CODE BUILT RENOVATED AT SECURITZN
- ------- ------- ---- ----- ---- ------ --------- ----- --------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
1 2 17 18 19 20 21 22
# OF UNITS/BEDS/ROOMS PROP ALLOC % OF LOAN CURRENT CURRENT ALLOC. GROUND
TRAN ID LOAN ID AT SECURITIZATION STAT AT SECURITIZATION ALLOC. % LOAN AMOUNT LEASE
- ------- ------- ----------------- ---- ----------------- -------- ----------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
1 2 23 24 25 26 27 28 29
OTHER ESCROW/ MOST RECENT MOST RECENT DATE ASSET TO FORECLOSURE REO
TRAN ID LOAN ID RESERVE BALANCES APPRAISAL DATE APPRAISAL VALUE BE RESOLVED DATE DATE OCC %
- ------- ------- ----------------- -------------- --------------- ----------- ---- ---- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 2 30 31 32 33 34 35 36
DATE LEASE % SF EXPIRE % SF EXPIRE % SF EXPIRE % SF EXPIRE % SF EXPIRE
TRAN ID LOAN ID OCC. DATE ROLLOVER REVIEW 1-12 MO. 13-24 MO. 25-36 MO. 37-48 MO. 49-60 MO.
- ------- ------- --------- --------------- -------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
1 2 37 38 39 40 41 42 43
LARGEST SF LARGEST 2ND LARGEST SF 2ND LARGEST 3RD LARGEST SF 3RD LARGEST FISCAL YEAR
TRAN ID LOAN ID TENANT TENANT TENANT TENANT TENANT TENANT END MONTH
- ------- ------- ------ ------ ------ ------ ------ ------ ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 2 44 45 46 47 48
SECURITIZATION FINAN. REVENUE AT OPER. EXP. AT NOI AT DSCR AT
TRAN ID LOAN ID AS OF DATE SECURITIZATION SECURITIZATION SECURITIZATION SECURITIZATION
- ------- ------- --------------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
1 2 49 50 51 52 53
APPRAISAL VALUE APPRAISAL DATE PHYSICAL OCCUP. DATE OF LAST PRECEDING FY
TRAN ID LOAN ID SECURITIZATION SECURITIZATION AT SECURITIZATION INSPECTION FIN. AS OF DATE
- ------- ------- -------------- -------------- ----------------- ---------- ---------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
1 2 54 55 56 57 58 59
PRECEDING FY PRECEDING FY PRECEDING FY PRECEDING FY PRECEDING FY PRECEDING FY
TRAN ID LOAN ID REVENUE EXPENSES NOI DEBT SERVICE DSCR OCCUPANCY
- ------- ------- ------------- ------------ ------------ ------------ ------------ ------------ -
<S> <C> <C> <C> <C> <C> <C> <C>
1 2 60 61 62 63 64
2ND PRECEDING 2ND PRECEDING 2ND PRECEDING 2ND PRECEDING 2ND PRECEDING
TRAN ID LOAN ID FY FIN AS OF DATE FY REVENUE FY EXPENSES FY NOI FY DEBT SERVICE
- ------- ------- ----------------- ------------- ------------- ------------ ----------------
<S> <C> <C> <C> <C> <C> <C>
1 2 65 66 67 68 69 70
2ND PRECEDING 2ND PRECEDING MOST RECENT MOST RECENT MOST RECENT MOST RECENT
TRAN ID LOAN ID FY DSCR FY OCCP % FY FIN AS OF DATE FY REVENUE FY EXPENSES FY NOI
- ------- ------- -------------- ------------- ----------------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
1 2 71 72 73
MOST RECENT MOST RECENT MOST RECENT
TRAN ID LOAN ID FY DEBT SERVICE FY DSCR FY OCCUP. %
- ------- ------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT H-10
CSSA REPORTS
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance, as applicable
and in any whole dollar denomination in excess thereof. The remaining
Certificates will initially be issued in denominations of $100,000 initial
Certificate Principal Balance or Certificate Notional Amount and in any whole
dollar denomination in excess thereof. Each Class of Certificates other than the
Residual Certificates will be represented by one or more Certificates registered
in the name of Cede & Co., as nominee of the DTC. No Certificate Owner will be
entitled to receive a Definitive Certificate representing such interest, except
under the limited circumstances described in the Pooling and Servicing
Agreement. The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
H-10-1
<PAGE>
EXHIBIT I
MORTGAGE LOAN REPORT
AVAILABLE FROM THE TRUSTEE
I-1
<PAGE>
SCHEDULE I
HFCF LOAN SCHEDULE
Sch I-1
<PAGE>
HELLER FINANCIAL CAPITAL FUNDING, INC.
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
PROSPECTUS GROSS
CONTROL SELLER LOAN MORTGAGE
NUMBER NUMBER PROPERTY NAME PROPERTY CITY PROPERTY STATE RATE
- ------------ ------------- --------------------------------------- ------------------- ---------------- ------------
<S> <C> <C> <C> <C> <C>
11 97411 450-460 Park Avenue South New York New York 7.7500%
13 98028 South Valley Ranch Henderson Nevada 7.1500%
14 98322 Hawaii Kai Shopping Center Honolulu Hawaii 6.9000%
17 98674 Ponce de Leon Santa Fe New Mexico 7.0600%
18 98604 Rancho Serene Apartments Las Vegas Nevada 6.9400%
22 97376 Colonial Oaks MHP Elyria Ohio 7.6900%
23 97637 Prestonwood Country Club Dallas and Plano Texas 7.7100%
24 98298 Stoney Creek Apartments Shelby Township Michigan 6.7100%
26.10 98004 Park Hill Apartments Colorado Springs Colorado 6.8400%
26.20 98106 Skyway Village Apartments Colorado Springs Colorado 6.8400%
26.30 98108 Castle West Apartments Colorado Springs Colorado 6.8400%
27 98346 Mingo Market Place Tulsa Oklahoma 6.8800%
29 98110 Newport Beach Plaza Newport Beach California 6.9000%
30 98364 Naples Portfolio Naples Florida 7.2000%
34 98158 Brighton Independence Village Brighton Michigan 7.1780%
38 97408 Hunter's Cove Apartments Houston Texas 7.8200%
39 97605 Stratford Oaks Sarasota Florida 6.9600%
44 98620 Strongbox Self Storage 1516 N. Orlean Chicago Illinois 6.7500%
45 98572 Pine Brook Apartments Bakersfield California 7.2000%
46 98400 Westward Ho/ Northstar Tucson Arizona 7.0600%
47 98030 MarketPlace Shopping Center Watauga Texas 7.0100%
48 97406 Savannah Place Apartments Houston Texas 7.7700%
49 98526 Mission Brewery Plaza San Diego California 7.9200%
51 97698 Howell Self Storage Howell New Jersey 7.5000%
52 98420 Silver Shadow Houston Texas 6.9000%
54 97319 Heritage Heights MHP Columbus Indiana 8.1200%
56 98588 Saf Keep - Hayward Hayward California 6.7500%
58 97548 Yale Wilshire Medical Building Santa Monica California 6.9500%
59 98498 Maple Park Office Center West Bloomfield Michigan 6.5000%
61 98548 Heritage Hills Apartments Renton Washington 6.6600%
62 98564 Aliso Viejo Professional Center Aliso Viejo California 7.2800%
63 98492 Howell Mill Ridge Atlanta Georgia 6.7200%
65 98542 Highgate House Bellingham Washington 7.0500%
66 98432 Centennial Shopping Center Englewood Colorado 6.8700%
67 98650 Village Square Shopping Center Tequesta Florida 7.5000%
68.10 98640 Park Ridge MHC Iron Mountain Michigan 8.0000%
68.20 98710 Lakeland MHC Lake Mills Wisconsin 8.0000%
68.30 98712 Falls View MHC Fall River Wisconsin 8.0000%
68.40 98714 Birch Terrace MHC Menomonie Wisconsin 8.0000%
69 98524 Holiday Inn Express - Chula Vista Chula Vista California 7.9200%
71 98472 PRIMA INDUSTRIAL PARK Miami Florida 7.0700%
75 98532 Willow Lake Office Center Willowbrook Illinois 7.2000%
76 98392 Beacon Hill Apartments Boston Massachusetts 7.2830%
79 97609 Inkster Town Center Inkster Michigan 7.5800%
80 97588 Cordova Crossing - Sports Authority Pensacola Florida 7.4500%
82 98590 Mandarin Central Shopping Center Jacksonville Florida 8.0000%
83 98600 19119 Reyes Avenue Rancho Dominguiez California 7.3100%
84 98616 Strongbox Self Storage - Irving Park Chicago Illinois 6.7500%
86.10 98630 Mint MHC Mount Morris New York 8.0000%
86.20 98632 Roxbury MHC Central Square New York 8.0000%
86.30 98654 Rivers Edge MHC Waterloo New York 8.0000%
88 98608 Saline Shopping Center Saline Michigan 7.4100%
<CAPTION>
PROSPECTUS ORIGINAL ORIGINAL ORIGINAL
CONTROL TERM TO MATURITY DATE PRINCIPAL CUT-OFF DATE AMORTIZATION
NUMBER MATURITY OR ARD OR ARD BALANCE BALANCE MONTHLY PAYMENT TERM
- ------------ ----------------- --------------- ------------------ ------------------ ----------------- --------------
<S> <C> <C> <C> <C> <C> <C>
11 132 11/01/08 15,879,534.43 15,809,888.37 114,770.25 360
13 119 09/01/08 15,000,000.00 14,921,071.68 101,311.01 360
14 120 09/01/08 14,400,000.00 14,307,402.19 94,838.42 360
17 120 11/01/08 12,250,000.00 12,192,035.81 81,993.78 360
18 119 08/01/08 12,000,000.00 11,923,496.11 79,353.34 360
22 132 11/01/08 10,613,666.47 10,571,704.37 77,117.08 360
23 180 03/01/13 10,500,000.00 10,332,008.25 79,772.52 300
24 119 09/01/08 10,300,000.00 10,240,320.18 66,531.97 360
26.10 120 05/01/08 1,600,000.00 1,583,239.95 10,575.09 360
26.20 120 05/01/08 4,500,000.00 4,452,862.34 29,742.43 360
26.30 120 05/01/08 3,900,000.00 3,859,147.39 25,776.77 360
27 119 08/01/08 9,900,000.00 9,836,065.08 65,069.03 360
29 120 04/01/08 9,350,000.00 9,246,047.33 62,179.62 360
30 119 09/01/08 9,150,000.00 9,075,776.85 65,842.37 300
34 179 08/01/13 8,675,000.00 8,593,504.79 62,301.65 300
38 132 11/01/08 7,413,342.44 7,379,271.65 53,936.04 360
39 132 01/02/09 7,121,869.65 7,094,278.77 48,144.65 360
44 120 10/01/08 6,150,000.00 6,114,672.88 39,888.78 360
45 119 09/01/08 6,000,000.00 5,968,777.88 40,727.29 360
46 119 06/01/08 6,000,000.00 5,954,979.63 40,160.22 360
47 120 02/01/08 6,000,000.00 5,924,472.56 40,351.70 360
48 132 11/01/08 5,815,005.59 5,789,392.61 42,107.93 360
49 119 09/01/08 5,750,000.00 5,724,614.28 41,871.23 360
51 132 02/01/09 5,640,552.50 5,618,136.02 42,281.86 300
52 119 08/01/08 5,500,000.00 5,464,632.76 36,223.01 360
54 113 08/01/07 5,300,000.00 5,300,000.00 39,333.80 360
56 119 09/01/08 5,250,000.00 5,219,842.68 34,051.40 360
58 119 09/01/08 5,175,000.00 5,146,541.09 34,255.80 360
59 119 09/01/08 5,150,000.00 5,118,784.59 32,551.50 360
61 119 09/01/08 4,750,000.00 4,722,179.39 30,524.78 360
62 119 10/01/08 4,725,000.00 4,703,657.28 32,329.03 360
63 120 09/01/08 4,720,000.00 4,688,458.35 30,519.76 360
65 120 08/01/08 4,680,000.00 4,647,842.71 31,293.47 360
66 119 10/01/08 4,600,000.00 4,577,351.99 30,203.36 360
67 119 10/01/08 4,560,000.00 4,540,347.70 31,884.18 360
68.10 120 11/01/08 847,210.00 843,934.96 6,216.53 360
68.20 120 11/01/08 1,282,190.00 1,277,233.48 9,408.26 360
68.30 120 11/01/08 734,370.00 731,531.17 5,388.55 360
68.40 120 11/01/08 1,686,230.00 1,679,711.62 12,372.96 360
69 119 09/01/08 4,500,000.00 4,467,816.82 34,493.59 300
71 120 08/01/08 4,326,500.00 4,296,904.90 28,988.00 360
75 119 09/01/08 4,200,000.00 4,178,144.54 28,509.10 360
76 179 09/01/13 4,200,000.00 4,166,413.87 30,447.24 300
79 119 09/01/08 4,100,000.00 4,080,418.00 28,892.73 360
80 119 10/01/08 4,050,000.00 4,022,497.87 29,797.55 300
82 119 10/01/08 3,950,000.00 3,934,730.66 28,983.70 360
83 119 09/01/08 3,850,000.00 3,830,452.59 26,420.65 360
84 120 10/01/08 3,850,000.00 3,827,884.61 24,971.03 360
86.10 60 02/01/04 800,000.00 798,197.33 5,870.12 360
86.20 60 02/01/04 2,100,000.00 2,095,268.01 15,409.06 360
86.30 60 02/01/04 880,000.00 878,017.07 6,457.13 360
88 119 09/01/08 3,700,000.00 3,671,055.52 27,126.44 300
<CAPTION>
PROSPECTUS
CONTROL ADMINISTRATION
NUMBER COST (BPS)
- ------------ ---------------
<S> <C>
11 5.24
13 5.24
14 5.24
17 5.24
18 5.24
22 5.24
23 5.24
24 5.24
26.10 5.24
26.20 5.24
26.30 5.24
27 5.24
29 5.24
30 5.24
34 5.24
38 5.24
39 5.24
44 5.24
45 5.24
46 5.24
47 5.24
48 5.24
49 5.24
51 5.24
52 5.24
54 5.24
56 5.24
58 5.24
59 5.24
61 5.24
62 5.24
63 5.24
65 5.24
66 5.24
67 5.24
68.10 5.24
68.20 5.24
68.30 5.24
68.40 5.24
69 5.24
71 5.24
75 5.24
76 5.24
79 5.24
80 5.24
82 5.24
83 5.24
84 5.24
86.10 5.24
86.20 5.24
86.30 5.24
88 5.24
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PROSPECTUS GROSS
CONTROL SELLER LOAN MORTGAGE
NUMBER NUMBER PROPERTY NAME PROPERTY CITY PROPERTY STATE RATE
- ----------- ------------- ------------------------------------ ----------------------------- ---------------- ------------
<S> <C> <C> <C> <C> <C>
89 98462 Courtyards Apartments Phoenix Arizona 7.0000%
92 98626 Hayes Valley Care San Francisco California 7.1000%
94 98648 Millparke Tech Center Maryland Heights Missouri 7.3000%
95 98228 Boston Store Furniture Gallery Brookfield Wisconsin 6.5700%
98 98554 Moorestown Office Moorestown New Jersey 7.1900%
100 98440 188 Route 10 West East Hanover New Jersey 7.0200%
101 97589 Cordova Crossing - Linens N Things Pensecola Florida 7.3100%
102 98418 One Harvard Street Brookline Massachusetts 7.0500%
104 98488 Dangel Portfolio-Prime Brookline Massachusetts 6.6200%
105 97343 Northland Park Watertown, Jefferson County New York 7.5500%
106 97440 Securlock at Bedford Bedford Texas 7.0870%
107 98506 Cahaba River SSF Birmingham Alabama 7.1500%
109 98686 Adanson Business Center Orlando Florida 7.5000%
110 98698 Town Trails Office Park Dallas Texas 7.2700%
114 98372 Center Street Plaza Auburn Maine 7.2500%
115 98740 26250 Northwestern Highway Southfield Michigan 7.7500%
116 97441 Securlock at Hurst Hurst Texas 7.2730%
118 96252 Diamond Mine Mini-Storage Brentwood California 9.7000%
120 97368 Royal Palms MHP Wilmington North Carolina 7.8900%
124 97515 Money Saver - Gresham Gresham Oregon 7.2080%
125 98482 Dangel Portfolio-Pal Brookline Massachusetts 7.0000%
126 98652 Lake Charleston Center Boynton Beach Florida 7.5200%
127 98512 Western Avenue Portfolio Guilderland New York 6.9500%
128 98398 Windham Apartments Seattle Washington 6.8500%
132 97489 Hacienda Self Storage Pleasanton California 7.7100%
134 98618 445 West Erie Chicago Illinois 7.1000%
136 98516 Pier 1/Athlete's Foot Pueblo Colorado 7.3900%
138 98504 Canyon Self Storage Santa Maria California 7.0800%
140 98530 Valley Crossing Apartments Madison Wisconsin 7.0000%
143 98048 Cypress Court Apartments Manchester New Hampshire 6.8800%
144 98240 Hibiscus Plaza Miami Florida 7.0900%
149 98312 All Safe Mini Storage Salinas California 7.0000%
151 98468 Greenfield Estates MHC Obetz Ohio 7.0700%
156 97576 Woodland Village Self Storage Flagstaff Arizona 7.5800%
158 98496 Ambassador Apartments Seatac Washington 7.5000%
159 98350 Seabreeze Apartments Seatac Washington 6.8600%
160 98622 Palatine Lock Up Palatine Illinois 6.7600%
166 98508 Atlantic Self Storage-VA Lake Ridge Virginia 7.0800%
168.10 98638 Plover Pointe Plover Wisconsin 8.0700%
168.20 98708 Kountry Squire MHC Mosinee Wisconsin 8.0700%
170 98762 Mini U Storage - Littleton, CO Littleton Colorado 8.3500%
171 98584 Honeoye Valley MHC Canadice New York 6.9200%
173 98760 Mini U Storage - Livonia, MI Livonia Michigan 8.3500%
174 98758 Mini U Storage - Warren, MI Warren Michigan 8.3500%
176 98522 Foxhill Townhomes Harrisonburg Virginia 8.0000%
178 98546 Northtown Plaza Lubbock Texas 7.2200%
179 98552 Apple Storage Boise Idaho 7.6000%
180 98514 Big 5 Sporting Goods Lubbock Texas 7.5900%
182 98716 Country Grove Shopping Center West Palm Beach Florida 7.5100%
183 98722 North Mopac Mini Storage Austin Texas 7.0700%
184 98586 1319 Dielman Rd. Olivette Missouri 7.2300%
186 98756 North Washington Self Storage Thornton Colorado 8.3500%
<CAPTION>
PROSPECTUS ORIGINAL ORIGINAL ORIGINAL
CONTROL TERM TO MATURITY DATE PRINCIPAL CUT-OFF DATE AMORTIZATION ADMINISTRATION
NUMBER MATURITY OR ARD OR ARD BALANCE BALANCE MONTHLY PAYMENT TERM COST (BPS)
- ----------- ----------------- --------------- ----------------- ----------------- ----------------- -------------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C>
89 120 08/01/08 3,680,000.00 3,654,429.08 24,483.13 360 5.24
92 119 08/01/08 3,500,000.00 3,466,684.03 24,960.99 300 5.24
94 119 09/01/08 3,375,000.00 3,357,825.79 23,138.02 360 5.24
95 119 09/01/08 3,200,000.00 3,180,892.00 20,373.71 360 5.24
98 120 09/01/08 3,100,000.00 3,081,279.81 21,021.45 360 5.24
100 119 09/01/08 3,000,000.00 2,983,753.87 19,999.39 360 5.24
101 120 12/01/08 3,000,000.00 2,982,781.19 21,800.31 300 5.24
102 119 08/01/08 2,950,000.00 2,931,634.48 19,725.58 360 5.24
104 120 09/01/08 2,930,194.00 2,910,193.31 18,752.67 360 5.24
105 132 10/01/08 2,830,226.17 2,818,308.16 20,101.79 360 5.24
106 132 11/01/08 2,802,530.63 2,776,048.76 20,426.29 300 5.24
107 119 08/01/08 2,780,000.00 2,738,327.15 21,804.32 240 5.24
109 120 11/01/08 2,700,000.00 2,688,363.77 18,878.79 360 5.24
110 120 10/01/08 2,650,000.00 2,636,424.14 18,113.63 360 5.24
114 120 08/01/08 2,520,000.00 2,494,007.81 18,214.73 300 5.24
115 84 12/01/05 2,500,000.00 2,491,614.83 17,910.31 360 5.24
116 132 11/01/08 2,468,557.58 2,453,326.71 18,177.00 300 5.24
118 120 11/30/06 2,453,994.42 2,441,490.77 22,247.87 300 5.24
120 132 11/01/08 2,417,407.96 2,403,181.87 18,753.65 300 5.24
124 132 12/01/08 2,376,888.48 2,360,399.24 17,373.45 300 5.24
125 120 08/01/08 2,345,968.00 2,329,666.79 15,607.78 360 5.24
126 119 09/01/08 2,300,000.00 2,288,863.66 16,113.44 360 5.24
127 119 08/01/08 2,300,000.00 2,285,368.32 15,224.80 360 5.24
128 119 09/01/08 2,222,000.00 2,209,510.52 14,559.86 360 5.24
132 132 12/01/08 2,188,919.98 2,175,237.18 16,860.34 300 5.24
134 120 10/01/08 2,160,000.00 2,148,507.61 14,515.89 360 5.24
136 119 08/01/08 2,065,000.00 2,053,066.46 14,283.56 360 5.24
138 119 09/01/08 2,040,000.00 2,029,098.00 13,681.95 360 5.24
140 120 09/01/08 2,000,000.00 1,980,639.32 14,135.58 300 5.24
143 119 06/01/08 1,925,000.00 1,909,947.20 12,652.31 360 5.24
144 120 10/01/08 1,900,000.00 1,889,868.54 12,755.80 360 5.24
149 119 08/01/08 1,700,000.00 1,689,301.34 11,310.14 360 5.24
151 119 09/01/08 1,700,000.00 1,685,899.31 12,091.27 300 5.24
156 132 02/01/09 1,571,947.96 1,554,655.49 11,898.82 300 5.24
158 120 08/01/08 1,520,000.00 1,504,994.39 11,232.67 300 5.24
159 120 09/01/08 1,500,000.00 1,490,271.27 9,838.90 360 5.24
160 120 10/01/08 1,500,000.00 1,486,886.86 10,373.15 300 5.24
166 119 08/01/08 1,400,000.00 1,386,628.62 9,966.47 300 5.24
168.10 120 12/01/08 656,324.00 654,274.83 4,847.94 360 5.24
168.20 120 12/01/08 638,676.00 636,681.95 4,717.58 360 5.24
170 120 01/01/09 1,230,000.00 1,225,062.50 9,780.27 300 5.24
171 119 09/01/08 1,230,000.00 1,219,534.00 8,630.71 300 5.24
173 120 01/01/09 1,200,000.00 1,195,182.91 9,541.73 300 5.24
174 120 01/01/09 1,185,000.00 1,180,243.12 9,422.46 300 5.24
176 119 10/01/08 1,136,000.00 1,131,608.59 8,335.57 360 5.24
178 119 08/01/08 1,100,000.00 1,093,400.78 7,481.57 360 5.24
179 119 09/01/08 1,100,000.00 1,091,675.41 8,200.59 300 5.24
180 119 08/01/08 1,040,000.00 1,034,251.65 7,336.03 360 5.24
182 119 09/01/08 880,000.00 875,729.45 6,159.11 360 5.24
183 83 10/01/05 850,000.00 843,851.89 6,045.63 300 5.24
184 120 10/01/08 650,000.00 644,754.48 4,689.87 300 5.24
186 120 01/01/09 535,000.00 532,852.39 4,254.02 300 5.24
-------------- --------------
412,380,106.26 409,731,500.13
============== ==============
</TABLE>
<PAGE>
SCHEDULE II
PMCF LOAN SCHEDULE
<TABLE>
<CAPTION>
CONTROL LOAN
NUMBER NUMBER ORIGINATOR PROPERTY NAME
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
117 6103233 PMCC 10500 Barkley Office Building
157 6103168 PMCC 128th Street Retail Building
141 6103422 PMCC 2 John E. Walsh Boulevard
133 6103063 PMCC 320 North Main Street
57 6102987 PMCC 4600 Westport Drive
- -------------------------------------------------------------------------------------------
50.40 6103162D PMCC 500 Princeton Road
28 6103136 PMCC 850 Clark Drive
96 6102957 PMCC Amity Commons
85 6103375 PMCC Arbor Court Apartments
97 6103347 PMCC Baker Square Shopping Center
- -------------------------------------------------------------------------------------------
3 6103230 PMCC Barefoot Landing
137.20 6103242B PMCC Beverage Hill Apartments
50.10 6103162A PMCC BKJ Park
21 6103041 PMCC Bristlecone Apartments
43 6103138 PMCC Bristol Farms Center
- -------------------------------------------------------------------------------------------
135 6103267 PMCC Bristol Ridge Apartments
87 6103064 PMCC Broadmoor Apartments
41 6103288 PMCC Canned Foods, Inc. Building
147 6103363 PMCC Casa de Alicia Apartments
99 6103364 PMCC Cast Iron Building
- -------------------------------------------------------------------------------------------
137 6103242 PMCC CHARTER REALTY PORTFOLIO
131 6103430 PMCC Cherry Heights Apartments
162 6102990 PMCC Chesterfield Place Apartments
122 6103335 PMCC Chestnut Heights Apartments
129 6103394 PMCC Churchill Business Center
- -------------------------------------------------------------------------------------------
25 6103342 PMCC Coconut Palms Apartments
113 6103428 PMCC Colorado Crossroads
103 6103137 PMCC Crown Valley Center
108 6103360 PMCC Days Inn -- Manassas
9 6103362 PMCC Days Inn Hotel -- Crystal City
72 6103209 PMCC Dutch Village Apartments
- -------------------------------------------------------------------------------------------
153 6103336 PMCC Eagle Run Square II Shopping Center
121 6103259 PMCC Freeport Bay Apartments
73 6103275 PMCC Hanover Commons Shopping Center
175 6103431 PMCC Heritage Apartments
164 6103086 PMCC Hickory Ridge Apartments
90 6103286 PMCC Hilliard Square Shopping Center
42 6103367 PMCC Holden Commons Shopping Center
- -------------------------------------------------------------------------------------------
150 6103248 PMCC Holiday Inn -- Heath
6.20 6103381B PMCC Illinois Department of Transportation Annex (IDOT)
163 6103477 PMCC Joshua Center
112 6103365 PMCC Juniper East Apartments
- -------------------------------------------------------------------------------------------
20 6103329 PMCC Kohl's Department Store
155 6103178 PMCC Lake Francis Shopping Center
172 6103300 PMCC Lancaster Park Apartments
<CAPTION>
ORIGINAL
CONTROL PRINCIPAL CUT-OFF DATE
NUMBER PROPERTY ADDRESS PROPERTY CITY PROPERTY STATE BALANCE BALANCE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
117 10500 Barkley Street Overland Park Kansas 2,466,000 2,452,388
157 617 128th Street SW Everett Washington 1,525,000 1,512,633
141 2 John E. Walsh Boulevard Peekskill New York 1,980,000 1,980,000
133 320 North Main Street Ann Arbor Michigan 2,175,000 2,160,668
57 4600 Westport Drive Mechanicsburg Pennsylvania 5,250,000 5,210,736
- ------------------------------------------------------------------------------------------------------------------------------
50.40 500 Princeton Road Johnson City Tennessee 734,143 729,409
28 850 Clark Drive Mount Olive New Jersey 9,375,000 9,293,197
96 687-721 Broadway North Amityville New York 3,200,000 3,176,392
85 802 Seminar Drive Houston Texas 3,807,000 3,798,494
97 1230-1470 North Baker Street McMinnville Oregon 3,100,000 3,084,655
- ------------------------------------------------------------------------------------------------------------------------------
3 4898 U.S. Highway 17 North North Myrtle Beach South Carolina 40,000,000 39,750,211
137.20 550 Beverage Hill Ave. & 385 Woodhaven Road Pawtucket Rhode Island 696,000 691,331
50.10 Eastern Star Road Kingsport Tennessee 1,627,582 1,617,087
21 2600 Preston Road Plano Texas 11,000,000 10,928,019
43 600-700 Fair Oaks Avenue South Pasadena California 6,500,000 6,465,460
- ------------------------------------------------------------------------------------------------------------------------------
135 2130 SW Fillmore Topeka Kansas 2,128,000 2,120,361
87 505 Ellis Boulevard Jefferson City Missouri 3,750,000 3,726,836
41 2000 Fifth Street Berkeley California 6,720,000 6,683,076
147 1307 Darlene Way Boulder City Nevada 1,750,000 1,743,705
99 718 Arch Street Philadelphia Pennsylvania 3,000,000 2,995,230
- ------------------------------------------------------------------------------------------------------------------------------
137 VARIOUS VARIOUS RHODE ISLAND 2,048,000 2,034,262
131 1008 South Cherry Street Glendale Colorado 2,185,000 2,182,060
162 14550 Rialto Drive Chesterfield Missouri 1,500,000 1,456,437
122 107 Chestnut Street Lower Paxton Township Pennsylvania 2,400,000 2,388,324
129 13210 & 13220 Wisteria Drive Germantown Maryland 2,200,000 2,196,853
- ------------------------------------------------------------------------------------------------------------------------------
25 4618 Middlebrook Road Orlando Florida 10,080,000 10,042,538
113 1415 East Colorado Street Glendale California 2,540,000 2,537,125
103 30012 Crown Valley Parkway Laguna Niguel California 2,950,000 2,923,651
108 10653 Balls Ford Road Manassas Virginia 2,717,000 2,717,000
9 2000 Jefferson Davis Highway Arlington Virginia 16,285,000 16,285,000
72 1921-F Eastway Drive Charlotte North Carolina 4,300,000 4,270,749
- ------------------------------------------------------------------------------------------------------------------------------
153 3661-77 North 129th Street Omaha Nebraska 1,600,000 1,595,602
121 8250 Mukilteo Speedway Mukilteo Washington 2,400,000 2,391,250
73 1246 Washington Street Hanover Massachusetts 4,250,000 4,227,743
175 2897 Greenland Drive Loveland Colorado 1,162,000 1,161,195
164 100 Hickory Ridge Court Hopkinsville Kentucky 1,450,000 1,436,329
90 4568-4740 Cemetery Road Hilliard Ohio 3,550,000 3,540,131
42 160 Reservoir Street (Route 31) Holden Massachusetts 6,480,000 6,470,970
- ------------------------------------------------------------------------------------------------------------------------------
150 733 Hebron Road Heath Ohio 2,000,000 1,687,293
6.20 3215 Executive Park Drive Springfield Illinois 5,889,783 5,863,902
163 6416-6480 Sante Fe Avenue Huntington Park California 1,440,000 1,440,000
112 1329-1339 Lombard Street Philadelphia Pennsylvania 2,600,000 2,594,158
- ------------------------------------------------------------------------------------------------------------------------------
20 2148 Centerville Road Herndon Virginia 11,200,000 11,160,402
155 Route 2, Francis Lake Boulevard Lake Park Georgia 1,600,000 1,591,163
172 1415-1459 Lancaster Drive NE Salem Oregon 1,200,000 1,195,913
<CAPTION>
REMAINING
GROSS ORIGINAL ORIGINAL TERM MATURITY REMAINING TERM TO
CONTROL MORTGAGE MONTHLY AMORTIZATION TO MATURITY OR DATE OR AMORTIZATION MATURITY OR
NUMBER RATE PAYMENT TERM ARD ARD PERIOD ARD
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
117 6.3400% 16,404.91 300 120 01/01/09 296 116
157 6.5100% 10,306.44 300 120 11/01/08 294 114
141 7.8800% 15,124.90 300 120 05/01/09 300 120
133 7.0800% 14,587.38 360 120 09/01/08 352 112
57 7.0500% 35,104.85 360 119 07/01/08 351 110
- ------------------------------------------------------------------------------------------------------------
50.40 6.6100% 5,007.57 300 120 12/01/08 295 115
28 7.0500% 66,559.88 300 120 10/01/08 293 113
96 7.1200% 21,548.19 360 120 08/01/08 351 111
85 8.0500% 28,067.23 360 120 02/01/09 357 117
97 7.0400% 21,989.32 300 120 01/01/09 296 116
- ------------------------------------------------------------------------------------------------------------
3 7.0000% 282,711.68 300 180 12/01/13 295 175
137.20 6.5400% 4,716.85 300 120 12/01/08 295 115
50.10 6.6100% 11,101.68 300 120 12/01/08 295 115
21 6.4100% 68,877.69 360 120 10/01/08 353 113
43 6.5000% 41,084.42 360 120 11/01/08 354 114
- ------------------------------------------------------------------------------------------------------------
135 6.5800% 13,562.56 360 120 01/01/09 356 116
87 6.7100% 24,222.80 360 120 10/01/08 353 113
41 6.3700% 44,829.56 300 120 01/01/09 296 116
147 7.6100% 13,057.82 300 180 02/01/14 297 177
99 7.1700% 20,302.76 360 120 03/01/09 358 118
- ------------------------------------------------------------------------------------------------------------
137 6.5400% 13,879.48 300 120 12/01/08 295 115
131 7.3000% 14,979.72 360 84 03/01/06 358 82
162 7.0100% 13,490.81 180 180 08/01/13 171 171
122 7.1500% 17,193.04 300 120 01/01/09 296 116
129 7.7000% 15,685.12 360 120 03/01/09 358 118
- ------------------------------------------------------------------------------------------------------------
25 6.4000% 63,051.00 360 84 01/01/06 356 80
113 7.9700% 18,584.53 360 120 03/01/09 358 118
103 6.9000% 20,662.18 300 120 10/01/08 293 113
108 8.6400% 23,820.06 240 120 05/01/09 240 120
9 8.4900% 131,021.51 300 120 05/01/09 300 120
72 6.4500% 28,051.76 324 120 11/01/08 318 114
- ------------------------------------------------------------------------------------------------------------
153 7.5400% 11,510.09 330 120 02/01/09 327 117
121 6.5000% 15,169.63 360 120 01/01/09 356 116
73 6.6800% 29,176.15 300 120 01/01/09 296 116
175 7.8400% 8,397.09 360 180 04/01/14 359 179
164 6.5500% 9,835.85 300 120 10/01/08 293 113
90 6.4000% 22,205.46 360 120 02/01/09 357 117
42 7.8300% 46,782.26 360 84 03/01/06 358 82
- ------------------------------------------------------------------------------------------------------------
150 7.3500% 13,539.59 240 180 01/01/14 236 176
6.20 7.7900% 44,642.01 300 120 01/01/09 296 116
163 8.0500% 11,161.89 300 120 05/01/09 300 120
112 7.6100% 19,400.19 300 120 03/01/09 298 118
- ------------------------------------------------------------------------------------------------------------
20 7.3300% 81,532.52 300 120 02/01/09 297 117
155 6.3100% 9,914.00 360 120 11/01/08 354 114
172 6.8500% 7,863.11 360 120 01/01/09 356 116
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CONTROL LOAN
NUMBER NUMBER ORIGINATOR PROPERTY NAME
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C>
111 6103301 PMCC Las Brisas Apartments
154 6103236 PMCC Laurel Oaks Apartments
- -----------------------------------------------------------------------------------------
10 6103429 PMCC LeVeque Tower Office Building
142 6103352 PMCC M & M II Apartments
146 6103307 PMCC Miami Lakes Corporate Plaza
145 6102993 PMCC Millbrae Plaza Shopping Center
50 6103162 PMCC MITCH COX PORTFOLIO
- -----------------------------------------------------------------------------------------
50.20 6103162B PMCC Mountcastle Centre
12 6103302 PMCC Mustang Village Apartments
181 6103181 PMCC Niagara Distributors, Inc.
64 6103107 PMCC Overland Park Shopping Center
55 6103298 PMCC Palmetto Palms Business Park
148 6103378 PMCC Penn Square Apartments
185 6103374 PMCC Pine View Apartments
- -----------------------------------------------------------------------------------------
77 6103056 PMCC Portland Storage Facility
6.10 6103381A PMCC Prescott E. Bloom Building
167 6103252 PMCC Ramada Inn
93 6103433 PMCC Rancho Vista Plaza
74 6102952 PMCC Regions Bank Building
- -----------------------------------------------------------------------------------------
5 6103250 PMCC Remington Place Apartments
37 6102441 PMCC Roan Centre Shopping Center
36 6103421 PMCC Roswell Mall
137.10 6103242A PMCC Rumford House Apartments
165 6103069 PMCC Santa Fe Pointe Shopping Center
- -----------------------------------------------------------------------------------------
2 6103070 PMCC Somerset Grove II
1 6103423 PMCC South Plains Mall
40 6103337 PMCC Southgate Mall
16 6103379 PMCC Springfield -- Bressmer-Mendenhall
19 6103380 PMCC Springfield -- Concordia Campus
- -----------------------------------------------------------------------------------------
6 6103381 PMCC SPRINGFIELD -- PRESCOTT & IDOT
152 6103234 PMCC Sprint Building
4 6103062 PMCC Station Plaza Office Complex
119 6103434 PMCC Super 8 Motel -- Asheville
91 6103356 PMCC Tally Ho Shopping Center
139 6103235 PMCC Teligent Building
123 6102971 PMCC Terrace East Apartments
- -----------------------------------------------------------------------------------------
169 6103357 PMCC The Awnings Apartments
53 6103187 PMCC The Calvert Apartments and TheShops at Calvert
130 6103308 PMCC The Mount Apartments
60 6103349 PMCC The Palms Apartments
8 7608321 PMCC The Pavilion
- -----------------------------------------------------------------------------------------
7 6103198 PMCC The Reserve at Westland Apartments
70 6103268 PMCC Treehouse Apartments
78.20 6103283 PMCC Treeview Villas Apartments
137.30 6103242C PMCC Tudor Arms Apartments
- -----------------------------------------------------------------------------------------
50.30 6103162C PMCC University Plaza
<CAPTION>
ORIGINAL
CONTROL PRINCIPAL CUT-OFF DATE
NUMBER PROPERTY ADDRESS PROPERTY CITY PROPERTY STATE BALANCE BALANCE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
111 5515 River Avenue Newport Beach California 2,625,000 2,615,686
154 650 North Boundary Avenue Deland Florida 1,600,000 1,592,745
- ------------------------------------------------------------------------------------------------------------------------
10 50 West Broad Street Columbus Ohio 16,160,000 16,160,000
142 874 Del Rey Drive & 891 Del Sol Drive Boulder City Nevada 1,945,000 1,937,822
146 6175 NW 153rd Street Miami Lakes Florida 1,810,000 1,804,795
145 1055-1095 El Camino Real and 1050-1080 Millbrae California 1,850,000 1,839,849
Broadway
50 VARIOUS VARIOUS TENNESSEE 5,700,000 5,663,245
- ------------------------------------------------------------------------------------------------------------------------
50.20 214 East Mountcastle Drive Johnson City Tennessee 1,260,510 1,252,382
12 One Mustang Drive San Luis Obispo California 15,350,000 15,303,634
181 3701 N. 29th Avenue Hollywood Florida 1,010,000 998,208
64 7189 Overland Road Boise Idaho 4,700,000 4,672,650
55 Northwest 167th Street Opa-Locka Florida 5,300,000 5,284,758
148 3010 Market Street Road Penbrook Pennsylvania 1,700,000 1,694,325
185 339-349 South 13th Street Philadelphia Pennsylvania 600,000 598,728
- ------------------------------------------------------------------------------------------------------------------------
77 215 S.E. Morrison Street Portland Oregon 4,200,000 4,163,407
6.10 201 South Grand Avenue, East Springfield Illinois 17,310,217 17,234,151
167 4767 Scottsville Road Bowling Green Kentucky 1,300,000 1,291,042
93 3011, 3053, 3115 Rancho Vista Boulevard Palmdale California 3,450,000 3,447,736
74 315 Union Street Nashville Tennessee 4,250,000 4,220,130
- ------------------------------------------------------------------------------------------------------------------------
5 One West Remington Lane Schaumburg Illinois 27,800,000 27,670,755
37 1805 North Roan Street Johnson City Tennessee 7,900,000 7,794,743
36 4501 North Main Street Roswell New Mexico 8,000,000 7,991,643
137-10 400 Pleasant Street East Providence Rhode Island 640,000 635,707
165 1425 South Santa Fe Avenue Edmond Oklahoma 1,500,000 1,407,129
- ------------------------------------------------------------------------------------------------------------------------
2 290 Davidson Avenue Franklin Township New Jersey 44,500,000 44,115,446
1 6002 Slide Road Lubbock Texas $65,000,000 $64,916,634
40 1409 West Ehringhause Street Elizabeth City North Carolina 6,700,000 6,686,214
16 620-628 E. Adams Street Springfield Illinois 13,150,000 13,092,215
19 1301 Concordia Court Springfield Illinois 11,650,000 11,598,807
- ------------------------------------------------------------------------------------------------------------------------
6 VARIOUS SPRINGFIELD ILLINOIS 23,200,000 23,098,052
152 360 Lake Destiny Drive Eatonville Florida 1,650,000 1,639,114
4 10, 22, & 44 South Clinton Avenue Trenton New Jersey 32,000,000 31,036,634
119 1329 Tunnel Road Asheville North Carolina 2,430,000 2,430,000
91 4350 Naamans Road Wilmington Delaware 3,500,000 3,491,564
139 250 Rio Drive Eatonville Florida 2,025,000 2,011,553
123 2139 E. Chestnut Avenue Vineland New Jersey 2,400,000 2,387,470
- ------------------------------------------------------------------------------------------------------------------------
169 50 North Front Street (and Parking Lot @ Philadelphia Pennsylvania 1,240,000 1,237,371
113-125 Church St.)
53 3110 Mt. Vernon Avenue Alexandria Virginia 5,400,000 5,353,514
130 1017 Middle Street Fall River Massachusetts 2,200,000 2,182,958
60 1365 W. Donegan Avenue Kissimmee Florida 5,100,000 5,100,000
8 261 Old York Road Jenkintown Pennsylvania 17,000,000 16,680,926
- ------------------------------------------------------------------------------------------------------------------------
7 8700 Hopemont Way Knoxville Tennessee 17,360,000 17,277,028
70 8951 Reeder Road Overland Park Kansas 4,350,000 4,325,988
78.20 819-953 Catherine Avenue Holly Hill Florida 750,000 745,809
137.30 1683-1691 Broad Street Cranston Rhode Island 712,000 707,224
- ------------------------------------------------------------------------------------------------------------------------
50.30 1735 West State of Franklin Road Johnson City Tennessee 2,077,764 2,064,366
<CAPTION>
REMAINING
GROSS ORIGINAL ORIGINAL TERM MATURITY REMAINING TERM TO
CONTROL MORTGAGE MONTHLY AMORTIZATION TO MATURITY OR DATE OR AMORTIZATION MATURITY OR
NUMBER RATE PAYMENT TERM ARD ARD PERIOD ARD
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
111 6.6400% 16,834.21 360 120 01/01/09 356 116
154 6.5400% 10,155.21 360 84 12/01/05 355 79
- -------------------------------------------------------------------------------------------------------------
10 8.0200% 118,801.74 360 120 05/01/09 360 120
142 7.4300% 14,284.94 300 180 02/01/14 297 177
146 6.5700% 11,523.88 360 120 02/01/09 357 117
145 6.9600% 12,258.44 360 120 10/01/08 353 113
50 6.6100% 38,879.51 300 120 12/01/08 295 115
- -------------------------------------------------------------------------------------------------------------
50.20 6.6100% 8,597.90 300 120 12/01/08 295 115
12 7.4600% 106,909.30 360 120 01/01/09 356 116
181 6.8700% 7,751.90 240 121 12/01/08 234 115
64 6.6900% 30,296.90 360 120 10/01/08 353 113
55 6.5700% 33,743.97 360 120 02/01/09 357 117
148 7.6900% 12,773.70 300 120 02/01/09 297 117
185 7.9700% 4,618.98 300 120 03/01/09 298 118
- -------------------------------------------------------------------------------------------------------------
77 6.7800% 29,097.90 300 120 10/01/08 293 113
6.10 7.7900% 131,203.96 300 120 01/01/09 296 116
167 7.6200% 10,079.76 270 120 12/01/08 265 115
93 8.1100% 25,579.93 360 120 04/01/09 359 119
74 7.3400% 29,252.38 360 144 07/01/10 350 134
- -------------------------------------------------------------------------------------------------------------
5 6.4100% 174,072.71 360 120 12/01/08 355 115
37 7.7000% 59,730.92 295 108 12/01/07 290 103
36 8.0400% 61,957.43 300 119 03/01/09 299 118
137-10 6.5400% 4,337.34 300 120 12/01/08 295 115
165 7.1900% 10,784.19 300 120 08/01/08 291 111
- -------------------------------------------------------------------------------------------------------------
2 6.6900% 295,226.58 330 128 05/01/09 322 120
1 7.4900% 454,044.42 360 120 03/01/09 358 118
40 7.5500% 49,730.52 300 120 03/01/09 298 118
16 7.7900% 99,671.32 300 120 01/01/09 296 116
19 7.2400% 95,792.15 220 120 01/01/09 218 116
- -------------------------------------------------------------------------------------------------------------
6 7.7900% 175,845.97 300 120 01/01/09 296 116
152 6.4700% 11,110.01 300 120 12/01/08 295 115
4 6.5780% 280,128.33 180 180 08/01/13 171 171
119 8.9300% 21,754.06 240 120 05/01/09 240 120
91 7.1700% 25,118.13 300 120 03/01/09 298 118
139 6.4300% 13,584.50 300 120 12/01/08 295 115
123 7.5700% 16,896.34 360 84 10/01/05 353 77
- -------------------------------------------------------------------------------------------------------------
169 7.9700% 9,545.89 300 120 03/01/09 298 118
53 6.1200% 35,189.46 300 120 11/01/08 294 114
130 7.0000% 17,056.58 240 120 01/01/09 236 116
60 6.6400% 33,459.71 336 120 01/01/09 336 116
8 7.1800% 122,111.54 300 120 02/01/08 285 105
- -------------------------------------------------------------------------------------------------------------
7 6.0800% 104,976.53 360 120 12/01/08 355 115
70 6.3400% 28,938.10 300 120 01/01/09 296 116
78.20 6.2600% 4,952.16 300 120 01/01/09 296 116
137.30 6.5400% 4,825.29 300 120 12/01/08 295 115
- -------------------------------------------------------------------------------------------------------------
50.30 6.6100% 14,172.36 300 120 12/01/08 295 115
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CONTROL LOAN
NUMBER NUMBER ORIGINATOR PROPERTY NAME
- --------------------------------------------------------------------
<S> <C> <C> <C>
35 6103439 PMCC Urban Farms Shopping Center
78 C-VICTREE PMCC VARIOUS
78.10 6103282 PMCC Victoria Gardens Apartments
15 6103368 PMCC Village Square Shopping Center
- --------------------------------------------------------------------
117 6103241 PMCC Watership Down Apartments
<CAPTION>
ORIGINAL GROSS
CONTROL PRINCIPAL CUT-OFF DATE MORTGAGE
NUMBER PROPERTY ADDRESS PROPERTY CITY PROPERTY STATE BALANCE BALANCE RATE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
35 808-851 Franklin Lakes Road Franklin Lakes New Jersey 8,075,000 8,069,471 7.9000%
78 VARIOUS VARIOUS FLORIDA 4,175,000 4,151,668 6.2600%
78.10 1394 Dunlawton Avenue Port Orange Florida 3,425,000 3,405,860 6.2600%
15 27079-27299 Chagrin Blvd. Woodmere Ohio 13,300,000 13,266,302 7.3100%
- --------------------------------------------------------------------------------------------------------------------
117 920 East New York Avenue Deland Florida 1,100,000 1,094,635 5.9800%
<CAPTION>
REMAINING
ORIGINAL ORIGINAL TERM MATURITY REMAINING TERM TO
CONTROL MONTHLY AMORTIZATION TO MATURITY OR DATE OR AMORTIZATION MATURITY OR
NUMBER PAYMENT TERM ARD ARD PERIOD ARD
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
35 58,689.54 360 180 04/01/14 359 179
78 27,567.01 300 120 01/01/09 296 116
78.10 22,614.85 300 120 01/01/09 296 116
15 91,271.34 360 120 02/01/09 357 117
- -----------------------------------------------------------------------------------------------
117 6,580.92 360 120 12/01/08 355 115
</TABLE>
<PAGE>
SCHEDULE III
INTEREST RESERVE LOANS
AVAILABLE FROM THE DEPOSITOR
Sch III-1
<PAGE>
SCHEDULE IV
LETTER OF CREDIT LOANS
Loan Control #:
- ---------------
4
74
57
50
152
16
6
19
40
10
