<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) June 22, 1999
DLJ Commercial Mortgage Corp.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 333-59167-03 13-3956945
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
277 Park Avenue, New York, New York 10172
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (212) 892-3000
---------------
- --------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
================================================================================
<PAGE>
Item 2. Acquisition or Disposition of Assets.
On June 22, 1999, a single series of certificates entitled
Series 1999-CG2 Commercial Mortgage Pass-Through Certificates (the
"Certificates"), was issued pursuant to a pooling and servicing (the "Pooling
and Servicing Agreement"), dated as of June 1, 1999, among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor"), GE Capital Loan Services, Inc. as
master servicer (the "Master Servicer"), Banc One Mortgage Capital Markets, LLC
as special servicer (the "Special Servicer") and Norwest Bank Minnesota,
National Association as trustee (in such capacity, the "Trustee") and REMIC
administrator (in such capacity, the "REMIC Administrator"). The Certificates
consist of 20 classes identified as the "Class S Certificates", the "Class A-1A
Certificates", the "Class A-1B Certificates", the "Class A-2 Certificates", the
"Class A-3 Certificates", the "Class A-4 Certificates", the "Class B-1
Certificates", the "Class B-2 Certificates", the "Class B-3 Certificates", the
"Class B-4 Certificates", the "Class B-5 Certificates", the "Class B-6
Certificates", the "Class B-7 Certificates", the "Class B-8 Certificates", the
"Class C Certificates", the "Class D-1 Certificates", the "Class D-2
Certificates", the "Class R-I Certificates", the "Class R-II Certificates" and
the "Class R-III Certificates", respectively. The Certificates were issued in
exchange for, and to evidence the entire beneficial ownership interest in, the
assets of a trust fund (the "Trust Fund") consisting primarily of a segregated
pool (the "Mortgage Pool") of commercial and multifamily mortgage loans (the
"Mortgage Loans"), having, as of the close of business on June 1, 1999 (the
"Cut-off Date"), an aggregate principal balance of $1,550,429,606 (the "Initial
Pool Balance"), after taking into account all payments of principal due on the
Mortgage Loans on or before such date, whether or not received. The Depositor
acquired certain of the Mortgage Loans from GE Capital Access, Inc. ("GECA"),
which is an affiliate of the Master Servicer and the remaining Mortgage Loans
from Column Financial, Inc. ("Column" which is an affiliate of the Depositor
and Goldman Sachs Mortgage Company ("GSMC"); and together with GECA and Column
the "Mortgage Loan Sellers"), pursuant to certain mortgage loan purchase
agreements between the Depositor and each of the Mortgage Loan Sellers. The
Depositor caused the Mortgage Loans to be transferred to the Trustee for the
benefit of the holders of the Certificates. The Depositor sold the Class S,
Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class B-1 and Class B-2
Certificates to Donaldson, Lufkin & Jenrette Securities Corporation ("DLJSC")
and Goldman, Sachs & Co. ("Goldman"; and, together with DLJSC, the
"Underwriters"), pursuant to an underwriting agreement dated June 11, 1999 (the
"Underwriting Agreement"), among the Depositor and the Underwriters. A form of
the Pooling and Servicing Agreement is attached hereto as Exhibit 99.1 and a
form of the Underwriting Agreement is attached hereto as Exhibit 99.2.
In connection with the issuance of the Certificates, Sidley &
Austin, tax counsel to the Depositor, provided an opinion regarding certain tax
matters. A copy of the opinion is attached hereto as Exhibit 99.3.
The Class S Certificates has an initial aggregate notional
amount of $1,550,429,606. The Class A-1A Certificates have an initial aggregate
principal balance of $241,610,000. The Class A-1B Certificates have an initial
aggregate principal balance of $890,203,000. The Class A-2 Certificates have an
initial aggregate principal balance of $69,769,000. The Class A-3 Certificates
have an initial aggregate principal balance of $81,398,000. The Class A-4
Certificates have an initial aggregate principal balance of $19,380,000. The
Class B-1 Certificates have an initial aggregate principal balance of
$58,141,000. The Class B-2 Certificates have an initial aggregate principal
balance of $23,257,000. The Class B-3 Certificates have an initial aggregate
principal balance of $38,761,000. Class B-4 Certificates have an initial
aggregate principal balance of $31,008,000. The Class B-5 Certificates have an
initial aggregate principal balance of $15,505,000. The Class B-6 Certificates
have an initial aggregate principal balance of $19,380,000. The Class B-7
Certificates have an initial aggregate principal balance of $15,504,000. The
Class B-8 Certificates have
<PAGE>
an initial aggregate principal balance of $15,505,000. The Class C Certificates
have an initial aggregate principal balance of $31,008,606.
Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to them in the Pooling and Servicing
Agreement.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired:
Not applicable.
(b) Pro forma financial information:
Not applicable.
(c) Exhibits:
Exhibit No. Description
- ----------- -----------
99.1 Pooling and Servicing Agreement.
99.2 Underwriting Agreement.
99.3 Opinion of Sidley & Austin with respect to certain tax matters.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: June 30, 1999
DLJ COMMERCIAL MORTGAGE CORP.
By: /s/ N. Dante LaRocca
--------------------------------
Name: N. Dante LaRocca
Title: Senior Vice President
<PAGE>
EXHIBIT INDEX
-------------
The following exhibits are filed herewith:
Exhibit No.
- -----------
99.1 Pooling and Servicing Agreement.
99.2 Underwriting Agreement.
99.3 Opinion of Sidley & Austin with respect to certain tax matters.
<PAGE>
EXECUTION COPY
================================================================================
DLJ COMMERCIAL MORTGAGE CORP.,
as Depositor,
GE CAPITAL LOAN SERVICES, INC.
as Master Servicer,
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
as Special Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee and REMIC Administrator,
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1999
------------------------------
$1,550,429,606
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
================================================================================
<PAGE>
TABLE OF CONTENTS
---------------
<TABLE>
<CAPTION>
Section Page
- ------- ----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
<S> <C> <C>
1.01. Defined Terms....................................................................................................2
1.02. General Interpretive Principles.................................................................................47
1.03. Certain Calculations in Respect of the Mortgage Pool............................................................47
1.04. Cross-Collateralized Mortgage Loans.............................................................................49
<CAPTION>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS,
CLASS S REMIC III REGULAR INTERESTS AND CERTIFICATES
<S> <C> <C>
2.01. Conveyance of Mortgage Loans....................................................................................50
2.02. Acceptance of Mortgage Assets by Trustee........................................................................53
2.03. Certain Repurchases and Substitutions of Mortgage Loans by the Originators......................................55
2.04. Representations and Warranties of the Depositor.................................................................59
2.05. Representations and Warranties of the Master Servicer...........................................................60
2.06. Representations and Warranties of the Special Servicer..........................................................62
2.07. Representations and Warranties of the Trustee...................................................................64
2.08. Representations and Warranties of the REMIC Administrator.......................................................65
2.09. Designation of the Certificates.................................................................................67
2.10. Creation of REMIC I; Issuance of REMIC I Regular Interests and REMIC I Residual Interest;
Certain Matters Involving REMIC I and the Loan REMICs...........................................................68
2.11. Conveyance of REMIC I Regular Interests; Acceptance of REMIC I Regular Interests by Trustee.....................71
2.12. Creation of REMIC II; Issuance of REMIC II Regular Interests and Class R-II Certificates;
Certain Matters Involving REMIC II..............................................................................71
2.13. Conveyance of REMIC II Regular Interests; Acceptance of REMIC II Regular Interests by
Trustee.........................................................................................................73
2.14. Creation of REMIC III; Issuance of REMIC III Certificates; Certain Matters Involving REMIC
III.............................................................................................................73
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C> <C>
2.15. Acceptance of Grantor Trusts by Trustee; Issuance of the Class D and Class R-I Certificates.....................76
<CAPTION>
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
<S> <C> <C>
3.01. Administration of the Mortgage Loans............................................................................78
3.02. Collection of Mortgage Loan Payments............................................................................79
3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve Accounts........................79
3.04. Collection Account, Distribution Account and Interest Reserve Account...........................................82
3.05. Permitted Withdrawals From the Collection Account, the Distribution Account and the Interest
Reserve Account.................................................................................................84
3.06. Investment of Funds in the Collection Account, Interest Reserve Account, Servicing Accounts,
Reserve Accounts and the REO Account............................................................................89
3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage...................................91
3.08. Enforcement of Alienation Clauses...............................................................................93
3.09. Realization Upon Defaulted Mortgage Loans.......................................................................94
3.10. Trustee to Cooperate; Release of Mortgage Files.................................................................96
3.11. Master Servicing and Special Servicing Compensation; Interest on and Reimbursement of
Servicing Advances; Payment of Certain Expenses; Obligations of the Trustee and any Fiscal
Agent regarding Back-up Servicing Advances......................................................................98
3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain Reports..........................103
3.13. Annual Statement as to Compliance..............................................................................106
3.14. Reports by Independent Public Accountants......................................................................106
3.15. Access to Certain Information..................................................................................107
3.16. Title to REO Property; REO Account.............................................................................107
3.17. Management of REO Property.....................................................................................108
3.18. Sale of Mortgage Loans and REO Properties......................................................................111
3.19. Additional Obligations of Master Servicer......................................................................114
3.20. Modifications, Waivers, Amendments and Consents................................................................117
3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping.............................121
3.22. Sub-Servicing Agreements.......................................................................................122
3.23. Controlling Class Representative...............................................................................124
3.24. Certain Rights and Powers of the Controlling Class Representative..............................................126
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Section Page
- ------- ----
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
<S> <C> <C>
4.01. Distributions..................................................................................................129
4.02. Statements to Certificateholders; Certain Other Reports........................................................139
4.03. P&I Advances; Advances relating to the Master Servicer Remittance Amount.......................................141
4.04. Allocation of Realized Losses and Additional Trust Fund Expenses...............................................144
4.05. Calculations...................................................................................................145
<CAPTION>
ARTICLE V
THE CERTIFICATES
<S> <C> <C>
5.01. The Certificates...............................................................................................146
5.02. Registration of Transfer and Exchange of Certificates..........................................................146
5.03. Book-Entry Certificates........................................................................................152
5.04. Mutilated, Destroyed, Lost or Stolen Certificates..............................................................153
5.05. Persons Deemed Owners..........................................................................................153
5.06. Certification by Certificate Owners............................................................................153
<CAPTION>
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
<S> <C> <C>
6.01. Liability of the Depositor, the Master Servicer, the Special Servicer and the REMIC
Administrator..................................................................................................155
6.02. Merger, Consolidation or Conversion of the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator.....................................................................................155
6.03. Limitation on Liability of the Depositor, the Master Servicer, the Special Servicer and the REMIC
Administrator..................................................................................................155
6.04. Master Servicer, Special Servicer and REMIC Administrator Not to Resign........................................156
6.05. Rights of the Depositor and the Trustee in Respect of the Master Servicer, the Special Servicer
and the REMIC Administrator....................................................................................157
6.06. Designation of Special Servicer by the Controlling Class.......................................................158
6.07. Master Servicer or Special Servicer as Owner of a Certificate..................................................159
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Section Page
- ------- ----
ARTICLE VII
DEFAULT
<S> <C> <C>
7.01. Events of Default..............................................................................................160
7.02. Trustee to Act; Appointment of Successor.......................................................................165
7.03. Notification to Certificateholders.............................................................................166
7.04. Waiver of Events of Default....................................................................................166
7.05. Additional Remedies of Trustee Upon Event of Default...........................................................166
<CAPTION>
ARTICLE VIII
THE TRUSTEE
<S> <C> <C>
8.01. Duties of Trustee..............................................................................................167
8.02. Certain Matters Affecting the Trustee..........................................................................168
8.03. Trustee and Fiscal Agent not Liable for Validity or Sufficiency of Certificates or Mortgage Loans..............170
8.04. Trustee and Fiscal Agent May Own Certificates..................................................................170
8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee, REMIC Administrator and Fiscal Agent..........170
8.06. Eligibility Requirements for Trustee...........................................................................172
8.07. Resignation and Removal of Trustee.............................................................................173
8.08. Successor Trustee..............................................................................................174
8.09. Merger or Consolidation of Trustee.............................................................................174
8.10. Appointment of Co-Trustee or Separate Trustee..................................................................174
8.11. Appointment of Custodians......................................................................................175
8.12. Access to Certain Information..................................................................................176
8.13. Appointment of Fiscal Agent....................................................................................177
8.14 Advance Security Arrangement...................................................................................179
8.15. Filings with the Securities and Exchange Commission............................................................179
<CAPTION>
ARTICLE IX
TERMINATION
<S> <C> <C>
9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans...............................................182
9.02. Additional Termination Requirements............................................................................184
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE X
ADDITIONAL TAX PROVISIONS
<S> <C> <C>
10.01. Tax Administration.............................................................................................185
10.02. Depositor, Master Servicer, Special Servicer, Trustee and Fiscal Agent to Cooperate with
REMIC Administrator............................................................................................188
10.03. Fees of the REMIC Administrator................................................................................188
10.04. Use of Agents..................................................................................................189
<CAPTION>
ARTICLE XI
MISCELLANEOUS PROVISIONS
<S> <C> <C>
11.01. Amendment......................................................................................................190
11.02. Recordation of Agreement; Counterparts.........................................................................191
11.03. Limitation on Rights of Certificateholders.....................................................................191
11.04. Governing Law..................................................................................................192
11.05. Notices........................................................................................................192
11.06. Severability of Provisions.....................................................................................193
11.07. Successors and Assigns; Beneficiaries..........................................................................193
11.08. Article and Section Headings...................................................................................193
11.09. Notices to and from the Rating Agencies and the Depositor......................................................193
11.10. Notices to Controlling Class Representative....................................................................195
11.11. Information Requested by GECA..................................................................................195
11.12. Complete Agreement.............................................................................................195
</TABLE>
-v-
<PAGE>
EXHIBITS
EXHIBIT A-1 Form of Class S Certificates
EXHIBIT A-2 Form of Class A-1A and Class A-1B Certificates
EXHIBIT A-3 Form of Class A-2, Class A-3, Class A-4, Class B-1 and
Class B-2 Certificates
EXHIBIT A-4 Form of Class B-3, Class B-4, Class B-5, Class B-6,
Class B-7, Class B-8 and Class C Certificates
EXHIBIT A-5 Form of Class D-1 and Class D-2 Certificates
EXHIBIT A-6 Form of Class R-I, Class R-II and Class R-III Certificates
EXHIBIT B-1A Schedule of Column Mortgage Loans
EXHIBIT B-1B Schedule of GECA Mortgage Loans
EXHIBIT B-1C Schedule of GSMC Mortgage Loans
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT B-3 Form of Custodial Certification
EXHIBIT C Letter of Representations among Depositor, Trustee and
initial Depository
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E-1 Form of Trustee Report
EXHIBIT E-2A Form of CSSA Loan Periodic Update File
EXHIBIT E-2B Form of CSSA Property File
EXHIBIT E-2C Form of CSSA Loan Set-up File
EXHIBIT E-3 Form of Comparative Financial Status Report
EXHIBIT E-4 Form of Delinquent Loan Status Report
EXHIBIT E-5 Form of Historical Loan Modification Report
EXHIBIT E-6 Form of Historical Loss Estimate Report
EXHIBIT E-7 Form of NOI Adjustment Worksheet
EXHIBIT E-8 Form of Operating Statement Analysis Report
EXHIBIT E-9 Form of REO Status Report
EXHIBIT E-10 Form of Watch List
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of
Non-Registered Certificates
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of
Non-Registered Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of
Non-Registered Certificates
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of
Non-Registered Certificates
EXHIBIT G Form of Transferee Certificate in Connection with ERISA
(Definitive Subordinated Certificates)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of
Residual Interest Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Residual
Interest Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of
Special Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K Calculation of Net Operating Income
EXHIBIT L-1 Information Request from Certificateholder or Certificate
Owner
EXHIBIT L-2 Information Request from Prospective Investor
EXHIBIT M-1 Form of Column Mortgage Loan Purchase and Sale Agreement
EXHIBIT M-2 Form of GECA Mortgage Loan Purchase and Sale Agreement
EXHIBIT M-3 Form of GSMC Mortgage Loans Purchase and Sale Agreement
EXHIBIT N Form of Union Capital Agreement
EXHIBIT O Schedule of Designated ARD Loans
EXHIBIT P Schedule of Designated Sub-Servicers
-vi-
<PAGE>
This Pooling and Servicing Agreement, is dated and effective
as of June 1, 1999, among DLJ COMMERCIAL MORTGAGE CORP. as Depositor, GE CAPITAL
LOAN SERVICES, INC. as Master Servicer, BANC ONE MORTGAGE CAPITAL MARKETS, LLC
as Special Servicer, and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION as Trustee
and REMIC Administrator.
PRELIMINARY STATEMENT:
Column (as defined herein) has sold to the Depositor, pursuant
to the Mortgage Loan Purchase and Sale Agreement dated as of June 11, 1999 (as
such may from time to time hereafter be amended, the "Column Mortgage Loan
Purchase and Sale Agreement"), between Column, DLJ Mortgage Capital, Inc. and
the Depositor, those Original Mortgage Loans (as defined herein) identified as
of the date hereof on the schedule attached hereto as Exhibit B-1A. A form of
the Column Mortgage Loan Purchase and Sale Agreement is attached hereto as
Exhibit M-1.
GECA (as defined herein) has sold to the Depositor, pursuant
to the Mortgage Loan Purchase and Sale Agreement dated as of June 11, 1999 (as
such may from time to time hereafter be amended, the "GECA Mortgage Loan
Purchase and Sale Agreement"), between GECA, General Electric Capital
Corporation and the Depositor, those Original Mortgage Loans identified as of
the date hereof on the schedule attached hereto as Exhibit B-1B. A form of the
GECA Mortgage Loan Purchase and Sale Agreement is attached hereto as Exhibit
M-2.
GSMC (as defined herein) has sold to the Depositor, pursuant
to the Mortgage Loan Purchase and Sale Agreement dated as of June 11, 1999 (as
such may from time to time hereafter be amended, the "GSMC Mortgage Loan
Purchase and Sale Agreement"), between GSMC and the Depositor, those Original
Mortgage Loans identified as of the date hereof on the schedule attached hereto
as Exhibit B-1C. A form of the GSMC Mortgage Loan Purchase and Sale Agreement is
attached hereto as Exhibit M-3.
The parties hereto desire to provide for, among other things,
(i) the creation of a common law trust, (ii) the transfer of the Original
Mortgage Loans, together with certain related rights, funds and property, by the
Depositor to the Trustee for the benefit of the Certificateholders (as defined
herein), (iii) the issuance of mortgage pass-through certificates in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the trust fund to be created hereunder, and (iv) the servicing and
administration of the Mortgage Loans (as defined herein), including the Original
Mortgage Loans, and the other assets that from time to time shall constitute
part of the trust fund to be created hereunder.
In consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Section 1.01, subject to
modification in accordance with Section 1.04.
"30/360 Basis": The accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest
on a 30/360 Basis.
"Accrued Certificate Interest": The interest accrued from time
to time in respect of any Class of Regular Interest Certificates, calculated in
accordance with Section 2.14(g).
"Accrued Component Interest": The interest accrued from time
to time in respect of any Class S REMIC III Regular Interest, calculated in
accordance with Section 2.14(f).
"Acquisition Date": With respect to any REO Property, the
first day on which such REO Property is considered to be acquired by the Trust
within the meaning of Treasury regulation Section 1.856- 6(b)(1), which is the
first day on which the Trust is treated as the owner of such REO Property for
federal income tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the
basis of the actual number of days elapsed during any calendar month in a year
assumed to consist of 360 days.
"Actual/360 Mortgage Loan": A Mortgage Loan that accrues
interest on an Actual/360 Basis.
"Additional Collateral": Any non-real property (including any
Letter of Credit) pledged and/or delivered by the related Borrower and held by
the mortgagee to secure payment on any Mortgage Loan.
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the principal
balance of such Mortgage Loan has been paid in full), together with all
interest, if any, accrued at the related Mortgage Rate on such deferred
interest.
"Additional Interest Rate": With respect to any ARD Loan after
its Anticipated Repayment Date, the incremental increase in the Mortgage Rate
for such Mortgage Loan resulting from the passage of such Anticipated Repayment
Date.
-2-
<PAGE>
"Additional Master Servicing Compensation": As defined in
Section 3.11(b).
"Additional Servicing Fee": With respect to each Additional
Servicing Fee Mortgage Loan, the fee designated as such and payable to the
related Designated Sub-Servicer or Archon pursuant to the second paragraph of
Section 3.11(a). The Additional Servicing Fees are not part of REMIC I, REMIC
II, REMIC III or any Grantor Trust Pool.
"Additional Servicing Fee Mortgage Loans": The Mortgage Loans
secured by (and any successor REO Mortgage Loans relating to) those Mortgaged
Properties identified on the Mortgage Loan Schedule as Deerbrook Crossing
Shopping Center, Pinewood Apartments, The Shadowbrook Apartments, Casa Real
Apartments, Beechnut Village Shopping Center, Holiday Inn-Clovis, Regent Place
Office Building, and Broussard Village Shopping Center; provided, in the case of
the Shadowbrook Apartments Mortgage Loan, the term "Additional Servicing Fee
Mortgage Loan" shall be deemed to refer to Shadowbrook Apartments REMIC Regular
Interest as well as the related loan.
"Additional Servicing Fee Rate": With respect to any
Additional Servicing Fee Mortgage Loan, the per annum rate specified below for
such Mortgage Loan:
Additional Servicing
Name of Related Mortgaged Property Fee Rate
---------------------------------- ---------
Deerbrook Crossing Shopping 0.08%
Pinewood Apartments 0.10%
The Shadowbrook Apartments 0.10%
Casa Real Apartments 0.10%
Beechnut Village Shopping Center 0.08%
Holiday Inn-Clovis 0.08%
Regent Place Office Building 0.08%
Broussard Village Shopping Center 0.08%
"Additional Special Servicing Compensation": As defined in
Section 3.11(d).
"Additional Trust Fund Expense": Any expense experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss that would result in the Regular Interest Certificateholders'
receiving less than the full amount of principal and/or Distributable
Certificate Interest to which they are entitled on any Distribution Date.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": That certain interest accrued on any
Advance (and compounded monthly) at the Reimbursement Rate, which is payable to
the Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as
the case may be, all in accordance with Section 3.11(g) or Section 4.03(d), as
applicable.
"Advance Security Arrangement": As defined in Section 8.14.
-3-
<PAGE>
"Adverse Grantor Trust Event": Either (i) any impairment of
the status of any Grantor Trust Pool as a Grantor Trust or (ii) the imposition
of a tax upon any Grantor Trust Pool or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency.
"Adverse REMIC Event": Either (i) any impairment of the status
of any REMIC Pool as a REMIC or (ii) except as permitted by Section 3.17(a), the
imposition of a tax upon any REMIC Pool or any of its assets or transactions
(including the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on prohibited contributions set forth in Section 860G(d)
of the Code).
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement together
with all amendments hereof and supplements hereto.
"Alternate Advancer": As defined in Section 4.03(g).
"A.M. Best": A.M. Best Company or its successor in interest.
"Annual Accountants' Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section
3.13.
"Anticipated Repayment Date": With respect to any ARD Loan,
the date specified on the related Mortgage Note, as of which Additional Interest
shall begin to accrue on such Mortgage Loan, which date is prior to the Stated
Maturity Date for such Mortgage Loan.
"Appraisal": With respect to any Mortgaged Property or REO
Property as to which an appraisal is required to be performed pursuant to the
terms of this Agreement, a narrative appraisal complying with USPAP (or, in the
case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal Balance
as of the date of such appraisal of $1,000,000 or less, either a limited
appraisal and a summary report or an internal valuation prepared by the Special
Servicer) that (i) indicates the "market value" of the subject property (within
the meaning of 12 CFR ss. 225.62(g)) and (ii) is conducted by a Qualified
Appraiser (except that, in the case of a Mortgage Loan or an REO Mortgage Loan
with a Stated Principal Balance as of the date of such appraisal of $1,000,000
or less, the appraiser may be an employee of the Special Servicer).
-4-
<PAGE>
"Appraisal Reduction Amount": With respect to any Required
Appraisal Loan, an amount (calculated as of the Determination Date immediately
following the later of (a) the date on which the most recent relevant Appraisal
acceptable for purposes of Section 3.19(c) hereof was obtained by the Special
Servicer pursuant to this Agreement and (b) the earliest of the relevant dates
in respect of such Required Appraisal Loan specified in the first sentence of
Section 3.19(c) hereof) equal to the excess, if any, of (x) the sum of (i) the
Stated Principal Balance of such Required Appraisal Loan, (ii) to the extent not
previously advanced by or on behalf of the Master Servicer, the Trustee or any
Fiscal Agent, all unpaid interest (net of related Servicing Fees, Default
Interest and, in the case of an ARD Loan after its Anticipated Repayment Date,
Additional Interest) accrued on such Required Appraisal Loan through the most
recent Due Date prior to such Determination Date, (iii) all unpaid Servicing
Fees accrued in respect of such Required Appraisal Loan, (iv) all related
unreimbursed Advances made by or on behalf of the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent in respect of such Required Appraisal
Loan, together with all unpaid Advance Interest accrued on such Advances, and
(v) all currently due but unpaid real estate taxes and assessments, insurance
premiums and, if applicable, ground rents in respect of the related Mortgaged
Property or REO Property (net of any Escrow Payments or other reserves held by
the Master Servicer or the Special Servicer with respect to any such item), over
(y) 90% of an amount equal to (i) the Appraised Value of the related Mortgaged
Property or REO Property, as applicable, as determined by the most recent
relevant Appraisal acceptable for purposes of Section 3.19(c) hereof, net of
(ii) the amount of any obligation(s) secured by any mortgage liens on such
Mortgaged Property or REO Property, as applicable, that are prior to the lien of
the Required Appraisal Loan. Notwithstanding the foregoing, if in the case of
any Required Appraisal Loan an Appraisal acceptable for purposes of Section
3.19(c) hereof is not obtained within sixty (60) days following, and has not
been obtained within the twelve (12) month period preceding, the earliest of the
relevant dates in respect of such Required Appraisal Loan specified in clauses
(i) - (v) of the first sentence of Section 3.19(c) hereof, then until such
Appraisal is obtained the Appraisal Reduction Amount will equal 25% of the
Stated Principal Balance of such Required Appraisal Loan; provided, however,
that upon receipt of an Appraisal acceptable for purposes of Section 3.19(c)
hereof, the Appraisal Reduction Amount for such Required Appraisal Loan will be
recalculated in accordance with the preceding sentence.
"Appraised Value": With respect to each Mortgaged Property or
REO Property, the appraised value thereof (as is) based upon the most recent
Appraisal obtained pursuant to this Agreement but in no event based upon an
Appraisal more than twelve (12) months old.
"Archon": Archon Financial, L.P., a Delaware limited
partnership, or its successor in interest.
"ARD Loan": A Mortgage Loan that provides for the accrual of
Additional Interest thereon if such Mortgage Loan is not paid in full on or
prior to its Anticipated Repayment Date.
"Asset Status Report": As defined in Section 3.24.
"Assignment of Leases": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the related Borrower in connection with the origination
of the related Mortgage Loan, as such assignment may be amended, modified,
renewed or extended through the date hereof and from time to time hereafter.
-5-
<PAGE>
"Assumed Monthly Payment": With respect to any Balloon
Mortgage Loan delinquent in respect of its Balloon Payment, for each Due Date
coinciding with or following its most recent scheduled maturity date (including
the related Stated Maturity Date or any extended maturity date) as of which such
Mortgage Loan remains outstanding and part of the Trust Fund (provided that such
Mortgage Loan was not paid in full, and no other Liquidation Event occurred in
respect thereof, before the end of the Collection Period in which such maturity
date occurs), the scheduled monthly payment of principal and/or interest deemed
to be due in respect of such Mortgage Loan on such Due Date equal to the amount
that would have been due in respect thereof on such Due Date (other than any
Default Interest and, in the case of any ARD Loan, any Additional Interest) if
such Mortgage Loan had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule (if any) in effect immediately prior to, and without
regard to the occurrence of, such maturity date. With respect to any REO
Mortgage Loan, for any Due Date as of which the related REO Property remains
part of the Trust Fund, the scheduled monthly payment of principal and/or
interest deemed to be due in respect thereof on such Due Date equal to the
Monthly Payment (or, in the case of a Balloon Mortgage Loan described in the
preceding sentence of this definition, the Assumed Monthly Payment) that was due
(or deemed due) in respect of the related Mortgage Loan on the last Due Date
prior to its becoming an REO Mortgage Loan.
"Available Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) all amounts on deposit
in the Distribution Account as of 11:00 a.m., New York City time, on such
Distribution Date, (ii) to the extent not included in the amount described in
clause (a)(i) of this definition, any P&I Advances and/or Compensating Interest
Payments that were made on and in respect of such Distribution Date, and (iii)
to the extent not included in the amount described in clause (a)(i) of this
definition, if such Distribution Date occurs during the month of March of any
year, the aggregate of the Interest Reserve Amounts with respect to the Interest
Reserve Loans transferred from the Interest Reserve Account to the Distribution
Account during such month of March for distribution on such Distribution Date,
net of (b) any portion of the amounts described in clause (a) of this definition
that represents one or more of the following: (i) collected Monthly Payments
that are due on a Due Date following the end of the related Collection Period,
(ii) any payments of principal (including Principal Prepayments) and interest,
Liquidation Proceeds and Insurance Proceeds received after the end of the
related Collection Period, (iii) any Prepayment Premiums, Yield Maintenance
Charges and/or Additional Interest; (iv) any amounts payable or reimbursable to
any Person from the Distribution Account pursuant to clauses (ii) through (v) of
Section 3.05(b), (v) if such Distribution Date occurs during the month of
February of any year or during the month of January of any year that is not a
leap year, the aggregate of the Interest Reserve Amounts with respect to the
Interest Reserve Loans to be withdrawn (pursuant to Section 3.04(c) and Section
3.05(b)(vi)) from the Distribution Account and deposited into the Interest
Reserve Account during such month of February or such month of January, as the
case may be, and held for future distribution, and (vi) any amounts deposited in
the Distribution Account in error; provided that the Available Distribution
Amount for the Final Distribution Date shall be calculated without regard to
clauses (b)(i), (b)(ii) and (b)(v) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date (or, in the case of a Replacement Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, a Balloon Payment
is due on its Stated Maturity Date.
"Balloon Payment": Any Monthly Payment payable on a Mortgage
Loan at scheduled maturity that is at least twice as large as the normal Monthly
Payment due on such Mortgage Loan.
-6-
<PAGE>
"Bankruptcy Code": The federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated June 3, 1999,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Bid Allocation": With respect to the initial Master Servicer
and each Sub-Servicer (other than a Designated Sub-Servicer) and the proceeds of
any bid pursuant to Section 7.01(c), the amount of such proceeds (net of any
expenses incurred in connection with such bid, including, without limitation,
reasonable attorneys' fees, and out-of-pocket expenses incurred in connection
with transferring the servicing of the Mortgage Loans), multiplied by a fraction
equal to (i) the Servicer Fee Amount for the initial Master Servicer or such
Sub-Servicer, as the case may be, as of such date of determination, over (ii)
the aggregate of the Servicer Fee Amounts for the initial Master Servicer and
all of the Sub-Servicers (other than the Designated Sub-Servicers) as of such
date of determination.
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee.
"Book-Entry Subordinated Certificate": Any Subordinated
Certificate that constitutes a Book-Entry Certificate.
"Borrower": The obligor or obligors on a Mortgage Note,
including any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, Minneapolis, Minnesota,
the city or cities in which the Primary Servicing Offices of the Master Servicer
and the Special Servicer are located or the city in which the Corporate Trust
Office of the Trustee is located, are authorized or obligated by law or
executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 1999-CG2, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Factor": With respect to any Class of Regular
Interest Certificates, as of any date of determination, a fraction, expressed as
a decimal carried to eight places, the numerator of which is the related Class
Principal Balance or Class Notional Amount, as the case may be, then
outstanding, and the denominator of which is the related Class Principal Balance
or Class Notional Amount, as the case may be, outstanding as of the Closing
Date.
-7-
<PAGE>
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, provided, however, that:
(i) neither a Disqualified Organization nor a Non-United States Person shall be
a "Holder" of, or a "Certificateholder" with respect to, a Residual Interest
Certificate for any purpose hereof; and (ii) solely for purposes of giving any
consent, approval, direction or waiver pursuant to this Agreement that
specifically relates to the rights, duties and/or obligations hereunder of any
of the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator, the Trustee or any Fiscal Agent in its respective capacity as
such (other than any consent, approval or waiver contemplated by any of Sections
3.23, 3.24 and 6.06), any Certificate registered in the name of such party or in
the name of any Affiliate thereof shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that specifically relates to such
party has been obtained. The Certificate Registrar shall be entitled to request
and conclusively rely upon a certificate of the Depositor, the Master Servicer
or the Special Servicer in determining whether a Certificate is registered in
the name of an Affiliate of such Person. All references herein to
"Certificateholders" or "Holders" shall reflect the rights of Certificate Owners
only insofar as they may indirectly exercise such rights through the Depository
and the Depository Participants (except as otherwise specified herein), it being
herein acknowledged and agreed that the parties hereto shall be required to
recognize as a "Certificateholder" or "Holder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Certificateholder Reports": As defined in Section 4.02(a).
"Certificate Notional Amount": With respect to any Class S
Certificate, the hypothetical or notional principal amount on which such
Certificate accrues (or is deemed to accrue) interest from time to time, which,
as of any date of determination, is equal to the product of (a) the then
Certificate Factor for the Class S Certificates, multiplied by (b) the amount
specified on the face of such Certificate as the initial Certificate Notional
Amount thereof.
"Certificate Owner": With respect to any Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance": With respect to any Principal
Balance Certificate, as of any date of determination, the then outstanding
principal amount of such Certificate equal to the product of (a) the then
Certificate Factor for the Class of Principal Balance Certificates to which such
Certificate belongs, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar": The
register maintained and the registrar appointed pursuant to Section 5.02.
"Class": Collectively, all of the Certificates bearing the
same alphabetical and, if applicable, numerical class designation and having the
same payment terms. The respective Classes of Certificates are designated in
Section 2.09(a). Any reference in any other Section or Subsection of this
Agreement to any Certificate or Certificates preceded by a Class designation
shall be to a Certificate or Certificates of the Class so designated in Section
2.09(a).
-8-
<PAGE>
"Class A Certificate": Any of the Certificates designated as
such in Section 2.09.
"Class B Certificate": Any of the Certificates designated as
such in Section 2.09.
"Class D Certificate": Any of the Certificates designated as
such in Section 2.09.
"Class D-1 Sub-Account": A sub-account of the Distribution
Account established pursuant to Section 3.04(b), which sub-account shall
constitute an asset of the Trust Fund and Grantor Trust D-1, but not an asset of
any REMIC Pool.
"Class D-2 Sub-Account": A sub-account of the Distribution
Account established pursuant to Section 3.04(b), which sub-account shall
constitute an asset of the Trust Fund and Grantor Trust D-2, but not an asset of
any REMIC Pool.
"Class Notional Amount": The aggregate hypothetical or
notional amount on which the Class S Certificates (as a collective whole) are
deemed to accrue interest from time to time, as calculated in accordance with
Section 2.14(d).
"Class Principal Balance": The aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates, as
calculated in accordance with Section 2.14(e).
"Class S REMIC III Regular Interest": Any of the separate
beneficial ownership interests in REMIC III represented by the Class S
Certificates and, in each such case, designated as a "regular interest" in REMIC
III. The Class S REMIC III Regular Interests have the designations and terms
provided for in Section 2.14.
"Class S Strip Rate": The per annum rate at which interest
accrues in respect of any Class S REMIC III Regular Interest during any Interest
Accrual Period, as set forth or otherwise calculated in accordance with Section
2.14(d).
"Closing Date": June 22, 1999.
"Code": The Internal Revenue Code of 1986 and regulations
promulgated thereunder, including proposed regulations to the extent that, by
reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
"Collection Account": The segregated account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) in
trust for the Certificateholders, which shall be entitled "GE Capital Loan
Services, Inc. [or the name of any successor Master Servicer], as Master
Servicer, in trust for the registered holders of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1999-CG2".
-9-
<PAGE>
"Collection Period": With respect to any Distribution Date,
the period commencing immediately following the Determination Date in the
calendar month preceding the month in which such Distribution Date occurs (or,
in the case of the initial Distribution Date, commencing immediately following
the Cut-off Date) and ending on and including the Determination Date in the
calendar month in which such Distribution Date occurs.
"Column": Column Financial, Inc. or its successor in interest.
"Column Mortgage Loan": Any of the Mortgage Loans sold by
Column to the Depositor pursuant to the Column Mortgage Loan Purchase and Sale
Agreement, which Mortgage Loans are identified on Exhibit B-1A.
"Column Mortgage Loan Purchase and Sale Agreement": As defined
in the Preliminary Statement.
"Column Third Party Mortgage Loan": Any Column Mortgage Loan
originated by Union Capital.
"Commission": The Securities and Exchange Commission or any
successor thereto.
"Comparative Financial Status Report": A report substantially
containing the information described in Exhibit E-3 attached hereto, including,
among other things, the occupancy and Debt Service Coverage Ratio for each
Mortgage Loan or the related Mortgaged Property, as applicable, as of the
Determination Date immediately preceding the preparation of such report and the
revenue and net operating income for each of the following three periods (to the
extent such information is available): (i) the most current available
year-to-date, (ii) the previous two full fiscal years, and (iii) the "base year"
(representing the original analysis of information used as of the Cut-off Date).
For the purposes of the production by the Master Servicer or the Special
Servicer of any such report that is required to state information for any period
prior to the Cut-off Date, the Master Servicer or the Special Servicer, as the
case may be, may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the related Mortgage Loan
Seller, by the related Borrower or (x) in the case of such a report produced by
the Master Servicer, by the Special Servicer (if other than the Master Servicer
or an Affiliate thereof) and (y) in the case of such a report produced by the
Special Servicer, by the Master Servicer (if other than the Special Servicer or
an Affiliate thereof).
"Compensating Interest Payment": With respect to any
Distribution Date, any payment made by the Master Servicer pursuant to Section
3.19(a) to cover Prepayment Interest Shortfalls incurred during the related
Collection Period.
"Component Notional Amount": The hypothetical or notional
amount on which any Class S REMIC III Regular Interest accrues interest from
time to time, as calculated in accordance with Section 2.14(d).
-10-
<PAGE>
"Controlling Class": As of any date of determination, the
Class of Principal Balance Certificates with the lowest payment priority
pursuant to Section 4.01(a), that has a then outstanding Class Principal Balance
that is not less than 25% of its initial Class Principal Balance; provided that,
if no Class of Principal Balance Certificates has a Class Principal Balance that
satisfies the foregoing requirement, then the Controlling Class shall be the
Class of Principal Balance Certificates with the largest Class Principal Balance
then outstanding. For purposes of this definition, the Class A-1A and Class A-1B
Certificates shall be treated as a single Class and, if appropriate under the
terms of this definition, shall collectively constitute the Controlling Class.
"Controlling Class Representative": As defined in Section
3.23(a).
"Corporate Trust Office": The principal corporate trust office
of the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of
(i) a Liquidation Event occurring in respect of such Mortgage Loan or (ii) the
related Mortgaged Property becoming an REO Property).
"Corresponding REMIC II Regular Interest": With respect to any
Class of Principal Balance Certificates, the REMIC II Regular Interest that has
an alphabetical and, if applicable, numerical designation that is the same as
the alphabetical and, if applicable, numerical Class designation for such Class
of Principal Balance Certificates; and, with respect to any Class S REMIC III
Regular Interest, the REMIC II Regular Interest that has an alphabetical and, if
applicable, numerical designation that, when preceded by "S-", is the same as
the alphabetical and, if applicable, numerical designation for such Class S
REMIC III Regular Interest.
"Cross-Collateralized Group": Any group of Mortgage Loans that
is cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that
pursuant to Section 1.04 is deemed to be, or by its terms actually is,
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"CSSA": The Commercial Real Estate Secondary Market and
Securitization Association, or any association or organization that is a
successor thereto.
"CSSA Loan Periodic Update File": The report substantially in
the form and containing the information described in Exhibit E-2A attached
hereto.
"CSSA Loan Set-up File": The report substantially in the form
and containing the information described in Exhibit E-2C attached hereto.
-11-
<PAGE>
"CSSA Property File": The report substantially in the form and
containing the information described in Exhibit E-2B hereto.
"Custodian": A Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files.
"Cut-off Date": June 1, 1999.
"Cut-off Date Balance": With respect to any Original Mortgage
Loan, the outstanding principal balance of such Mortgage Loan as of the Cut-off
Date, after application of all payments of principal due on or before such date,
whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage
Loan, as of any date of determination, and without regard to the
cross-collateralization in the case of any Cross-Collateralized Mortgage Loan,
the ratio of (x) the Net Operating Income (before payment of any debt service on
such Mortgage Loan) generated by the related Mortgaged Property during the most
recent period of not more than twelve (12) months or less than three months for
which Net Operating Income can be calculated (annualized if such period is less
than twelve (12) months), to (y) twelve times the amount of the Monthly Payment
in effect for such Mortgage Loan as of such date of determination.
"Default Charges": Default Interest and/or late payment
charges that are paid or payable, as the context may require, in respect of any
Mortgage Loan or REO Mortgage Loan.
"Defaulted Mortgage Loan": A Specially Serviced Mortgage Loan
(i) that is delinquent in an amount equal to at least two Monthly Payments (not
including the Balloon Payment, if any) or is delinquent thirty (30) days or more
in respect of its Balloon Payment, in either case such delinquency to be
determined without giving effect to any grace period permitted by the related
Mortgage or Mortgage Note and without regard to any acceleration of payments
under the related Mortgage and Mortgage Note, or (ii) as to which the Special
Servicer has, by written notice to the related Borrower, accelerated the
maturity of the indebtedness evidenced by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Default Interest": With respect to any Mortgage Loan (or
successor REO Mortgage Loan), any amounts collected thereon, other than late
payment charges, Prepayment Premiums or Yield Maintenance Charges, that
represent interest (exclusive, if applicable, of Additional Interest) in excess
of interest accrued on the principal balance of such Mortgage Loan (or REO
Mortgage Loan) at the related Mortgage Rate, such excess interest arising out of
a default under such Mortgage Loan.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Mortgage Loan which is repurchased
from the Trust or replaced with one or more Replacement Mortgage Loans, in
either case as contemplated by Section 2.03.
-12-
<PAGE>
"Delinquent Loan Status Report": A report substantially in the
form and containing the information described in Exhibit E-4 attached hereto,
including, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date immediately preceding the preparation of such
report, were (1) delinquent 30-59 days, (2) delinquent 60-89 days, (3)
delinquent 90 days or more, (4) current but specially serviced, or (5) in
foreclosure but as to which the related Mortgaged Property has not become an REO
Property.
"Depositor": DLJ Commercial Mortgage Corp. or its successor in
interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Designated ARD Loan": Any ARD Loan set forth on Exhibit O
hereto.
"Designated Sub-Servicer": Any Sub-Servicer set forth on
Exhibit P hereto and any successor thereto under the related Designated
Sub-Servicer Agreement.
"Designated Sub-Servicer Agreement": With respect to any
Additional Servicing Fee Mortgage Loan, the agreement between the Master
Servicer, the applicable Designated Sub-Servicer and Archon pursuant to which
the Designated Sub-Servicer agrees to service the Additional Servicing Fee
Mortgage Loans and the Designated Sub-Servicer or Archon, as applicable, is
entitled to the Additional Servicing Fee.
"Determination Date": With respect to any calendar month,
commencing in July 1999, the fourth day of such month (or, if such fourth day is
not a Business Day, the immediately preceding Business Day). Each Determination
Date will relate to the Distribution Date in the same calendar month.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers, the performance of any construction work thereon or any use
of such REO Property in a trade or business conducted by the Trust other than
through an Independent Contractor; provided, however, that the Special Servicer
(or any Sub-Servicer on behalf of the Special Servicer) shall not be considered
to Directly Operate an REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) establishes rental terms,
chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to repairs or capital expenditures with respect to such
REO Property.
"Discount Rate": As defined in Section 4.01(b).
-13-
<PAGE>
"Disqualified Organization": Any of the following: (i) the
United States or a possession thereof, any State or any political subdivision
thereof, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the REMIC Administrator based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Residual Interest Certificate by such
Person may cause the Trust or any Person having an Ownership Interest in any
Class of Certificates, other than such Person, to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Interest Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
"Distributable Certificate Interest": With respect to any
Class of Principal Balance Certificates, for any Distribution Date, an amount of
interest equal to all Accrued Certificate Interest in respect of such Class of
Certificates for the related Interest Accrual Period, reduced (to not less than
zero) by the product of (i) any Net Aggregate Prepayment Interest Shortfall for
such Distribution Date, multiplied by (ii) a fraction, expressed as a decimal,
the numerator of which is the Accrued Certificate Interest in respect of such
Class of Certificates for the related Interest Accrual Period, and the
denominator of which is the aggregate Accrued Certificate Interest in respect of
all the Classes of Regular Interest Certificates for the related Interest
Accrual Period; and, with respect to the Class S Certificates for any
Distribution Date, the aggregate amount of Distributable Component Interest in
respect of all the Class S REMIC III Regular Interests for such Distribution
Date.
"Distributable Component Interest": With respect to any Class
S REMIC III Regular Interest, for any Distribution Date, an amount of interest
equal to all Accrued Component Interest in respect of such Class S REMIC III
Regular Interest for the related Interest Accrual Period, reduced (to not less
than zero) by the product of (i) any Net Aggregate Prepayment Interest Shortfall
for such Distribution Date, multiplied by (ii) a fraction, expressed as a
decimal, the numerator of which is the Accrued Component Interest in respect of
such Class S REMIC III Regular Interest for the related Interest Accrual Period,
and the denominator of which is the aggregate Accrued Certificate Interest in
respect of all the Classes of Regular Interest Certificates for the related
Interest Accrual Period.
"Distribution Account": The segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b) in trust for
the Certificateholders, which shall be entitled " Norwest Bank Minnesota,
National Association [or the name of any successor Trustee], as Trustee, in
trust for the registered holders of DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-CG2".
-14-
<PAGE>
"Distribution Date": With respect to any calendar month,
commencing in July 1999, the later of (i) the 10th day of such month (or, if
such 10th day is not a Business Day, the Business Day immediately following) and
(ii) the fourth Business Day following the Determination Date occurring in such
month.
"DLJSC": Donaldson, Lufkin & Jenrette Securities Corporation
or its successor in interest.
"Document Defect": As defined in Section 2.02(e).
"Due Date": With respect to any Mortgage Loan (and any
successor REO Mortgage Loan), the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is scheduled
to be first due.
"EDGAR": The Electronic Data Gathering, Analysis, and
Retrieval System of the Commission, the computer system for the receipt,
acceptance, review and dissemination of documents submitted to the Commission in
electronic format.
"Eligible Account": Any of (i) an account maintained with a
federal or state chartered depository institution or trust company, the
long-term deposit or long-term unsecured debt obligations of which (or of such
institution's parent holding company) are rated no less than "Aa2" by Moody's
and, if then rated thereby, "AA" by Fitch (if the deposits are to be held in the
account for more than thirty (30) days), or the short-term deposit or short-term
unsecured debt obligations of which (or of such institution's parent holding
company) are rated no less than "P-1" by Moody's and, if then rated thereby,
"F-1+" by Fitch (if the deposits are to be held in the account for thirty (30)
days or less), in any event at any time funds are on deposit therein, or (ii) a
segregated trust account maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity, which, in the
case of a state chartered depository institution or trust company is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR ss. 9.10(b), and which, in either case, has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination by
federal or state authority, or (iii) any other account that is acceptable to the
Rating Agencies (as evidenced by written confirmation to the Trustee from each
Rating Agency that the use of such account would not, in and of itself, result
in an Adverse Rating Event with respect to any Class of Rated Certificates), or
(iv) an account maintained with Bankers Trust Company or Norwest Bank Minnesota,
National Association, if (A) the long term unsecured debt obligations thereof
are rated no less than "A+" by Fitch and "A1" by Moody's and (B) the short term
unsecured debt obligations thereof are rated no less than "F-1+" by Fitch and
"P-1" by Moody's.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Payment": Any payment received by the Master Servicer
or the Special Servicer for the account of any Borrower for application toward
the payment of real estate taxes, assessments, insurance premiums, ground rents
(if applicable) and similar items in respect of the related Mortgaged Property.
"Event of Default": Any of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
-15-
<PAGE>
"FDIC": The Federal Deposit Insurance Corporation or any
successor.
"FHLMC": The Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date": The final Distribution Date on
which any distributions are to be made on the Certificates as contemplated by
Section 9.01.
"Final Recovery Determination": A determination made by the
Special Servicer, in its reasonable, good faith judgment, with respect to any
Mortgage Loan or REO Property (other than a Mortgage Loan that is paid in full
and other than a Mortgage Loan or REO Property, as the case may be, that is
repurchased or replaced by Union Capital pursuant to the Union Capital
Agreement, repurchased or replaced by a Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase and Sale Agreement or purchased by the Master
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder pursuant to Section 9.01), that there has been a recovery of
all related Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries that will ultimately be recoverable.
"Fiscal Agent": A Person who is at any time appointed by the
Trustee pursuant to Section 8.13 to act as fiscal agent hereunder.
"Fiscal Agent Agreement": As defined in Section 8.13.
"Fitch": Fitch IBCA, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Fitch" shall
be deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the other parties hereto, and specific ratings of
Fitch IBCA, Inc. herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated. References herein to "applicable rating
category" (other than such references to "highest applicable rating category")
shall, in the case of Fitch, be deemed to refer to such applicable rating
category of Fitch, without regard to any plus or minus or other comparable
rating qualification.
"FNMA": The Federal National Mortgage Association or any
successor.
"GECA": GE Capital Access, Inc. or its successor in interest.
"GECA Mortgage Loan": Any of the Mortgage Loans sold by GECA
to the Depositor pursuant to the GECA Mortgage Loan Purchase and Sale Agreement,
which Mortgage Loans are identified on Exhibit B-1B.
"GECA Mortgage Loan Purchase and Sale Agreement": As defined
in the Preliminary Statement.
"Goldman Sachs": Goldman, Sachs & Co. or its successor in
interest.
"Grantor Trust": A grantor trust as defined under Subpart E of
Part 1 of Subchapter J of the Code.
-16-
<PAGE>
"Grantor Trust D-1": The Grantor Trust designated as such in
Section 2.15(a).
"Grantor Trust D-2": The Grantor Trust designated as such in
Section 2.15(b).
"Grantor Trust R-I": The Grantor Trust designated as such in
Section 2.15(c).
"Grantor Trust Pool": Any of Grantor Trust D-1, Grantor Trust
D-2 or Grantor Trust R-I.
"Ground Lease": The ground lease pursuant to which any
Borrower holds a leasehold interest in the related Mortgaged Property.
"GSMC": Goldman Sachs Mortgage Company or its successor in
interest.
"GSMC Mortgage Loan": Any of the Mortgage Loans sold by GSMC
to the Depositor pursuant to the GSMC Mortgage Loan Purchase and Sale Agreement,
which Mortgage Loans are identified on Exhibit B-1C.
"GSMC Mortgage Loan Purchase and Sale Agreement": As defined
in the Preliminary Statement.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including those so identified
pursuant to CERCLA or any other federal, state or local environmental related
laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls
("PCBs"), radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Historical Loan Modification Report": A report substantially
in the form and containing the information described in Exhibit E-5 attached
hereto, and setting forth, among other things, those Mortgage Loans which, as of
the close of business on the Determination Date immediately preceding the
preparation of such report, have been modified pursuant to this Agreement (i)
during the related Collection Period and (ii) since the Cut-off Date, showing
the original and the revised terms thereof.
"Historical Loss Estimate Report": A report substantially in
the form and containing the information described in Exhibit E-6 attached
hereto, and setting forth, among other things, as of the close of business on
the Determination Date immediately preceding the preparation of such report, (i)
the aggregate amount of Liquidation Proceeds and expenses relating to each Final
Recovery Determination made, both during the related Collection Period and
historically, and (ii) the amount of Realized Losses occurring during the
related Collection Period and historically, set forth on a Mortgage
Loan-by-Mortgage Loan basis.
"Independent": When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, each Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee, any Fiscal Agent and any and all Affiliates thereof, (ii) does not
have any direct financial interest in or any material indirect financial
interest in any of the Depositor, either Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any
-17-
<PAGE>
Fiscal Agent or any Affiliate thereof, and (iii) is not connected with the
Depositor, either Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Trustee, any Fiscal Agent or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, either Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee, any Fiscal Agent or any Affiliate thereof merely because such
Person is the beneficial owner of 1% or less of any class of securities issued
by the Depositor, such Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Trustee, such Fiscal Agent or any
Affiliate thereof, as the case may be.
"Independent Contractor": Any Person that would be an
"independent contractor" with respect to REMIC I (or, solely for purposes of a
Mortgage Loan in a Loan REMIC, the related Loan REMIC) within the meaning of
Section 856(d)(3) of the Code if REMIC I (or the related Loan REMIC) were a real
estate investment trust (except that the ownership test set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates, or such other interest in
any Class of Certificates as is set forth in an Opinion of Counsel, which shall
be at no expense to the Trustee, the REMIC Administrator or the Trust, delivered
to the Trustee and the REMIC Administrator), so long as the Trust does not
receive or derive any income from such Person and provided that the relationship
between such Person and the Trust is at arm's length, all within the meaning of
Treasury regulation Section 1.856-4(b)(5), or any other Person upon receipt by
the Trustee and the REMIC Administrator of an Opinion of Counsel, which shall be
at no expense to the Trustee, the REMIC Administrator or the Trust, to the
effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code, or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"Initial Pool Balance": The aggregate Cut-off Date Balance of
all the Original Mortgage Loans.
"Institutional Accredited Investor": An "accredited investor"
as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or any entity in which all of the equity owners come within such
paragraphs.
"Insurance Policy": With respect to any Mortgage Loan or REO
Property, any hazard insurance policy, flood insurance policy, title insurance
policy, earthquake insurance policy, environmental insurance policy, or other
insurance policy that is maintained from time to time in respect of such
Mortgage Loan (or the related Mortgaged Property) or such REO Property, as the
case may be.
"Insurance Proceeds": Proceeds paid under any Insurance
Policy, to the extent such proceeds are not applied to the restoration of the
related Mortgaged Property or REO Property or released to the related Borrower,
in any case, in accordance with the Servicing Standard.
-18-
<PAGE>
"Interest Accrual Basis": The basis on which interest accrues
in respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II
Regular Interest, any Class S REMIC III Regular Interest or any Class of Regular
Interest Certificates, consisting of one of the following: (i) a 30/360 Basis;
or (ii) an Actual/360 Basis.
"Interest Accrual Period": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest, any Class S REMIC III Regular Interest
or any Class of Regular Interest Certificates, for any Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs.
"Interest Reserve Account": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) in trust for the
Certificateholders, which shall be entitled "Norwest Bank Minnesota, National
Association [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG2".
"Interest Reserve Amount": With respect to each Interest
Reserve Loan and each Distribution Date that occurs during February of each year
and during January of each year that is not a leap year, an amount equal to
one-day's interest at the related Mortgage Rate on the Stated Principal Balance
of such Interest Reserve Loan as of the Due Date in the month in which such
Distribution Date occurs (but prior to the application of any amounts due on
such Due Date), to the extent that a Monthly Payment is received in respect
thereof for such Due Date on or before the related Master Servicer Remittance
Date or a P&I Advance is made in respect thereof for such Due Date on the
related P&I Advance Date.
"Interest Reserve Loan": Any Actual/360 Mortgage Loan
"Interested Person": Any party hereto, Column, GECA, GSMC,
Union Capital, any Certificateholder, or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Company Act": The Investment Company Act of 1940,
as amended.
"IRS": The Internal Revenue Service or any successor.
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"Late Collections": With respect to any Mortgage Loan, all
amounts received thereon during any Collection Period, whether as payments,
Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment or an
Assumed Monthly Payment in respect of such Mortgage Loan due or deemed due on a
Due Date in a previous Collection Period, or on a Due Date coinciding with or
preceding the Cut-off Date, and not previously recovered. With respect to any
REO Mortgage Loan, all amounts received in connection with the related REO
Property during any Collection Period, whether as Insurance Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly
-19-
<PAGE>
Payment or an Assumed Monthly Payment in respect of the predecessor Mortgage
Loan or late collections of the principal and/or interest portions of an Assumed
Monthly Payment in respect of such REO Mortgage Loan due or deemed due on a Due
Date in a previous Collection Period and not previously recovered.
"Latest Possible Maturity Date": With respect to any Loan
REMIC Regular Interest, any REMIC I Regular Interest, REMIC II Regular Interest,
Class S REMIC III Regular Interest or Class of Principal Balance Certificates,
the date designated as the "latest possible maturity date" thereof solely for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii).
"Letter of Credit": With respect to any Mortgage Loan, any
third-party letter of credit delivered by or at the direction of the Borrower
pursuant to the terms of such Mortgage Loan in lieu of the establishment of, or
deposit otherwise required to be made into, a Reserve Fund.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan; (iii) such
Mortgage Loan is repurchased or replaced by Union Capital pursuant to the Union
Capital Agreement or by a Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase and Sale Agreement, in each case as contemplated by Section 2.03;
or (iv) such Mortgage Loan is purchased by the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder pursuant to Section
3.18 or Section 9.01. With respect to any REO Property (and the related REO
Mortgage Loan), any of the following events: (i) a Final Recovery Determination
is made with respect to such REO Property; or (ii) such REO Property is
purchased by the Master Servicer, the Special Servicer or the Majority
Controlling Class Certificateholder pursuant to Section 3.18 or Section 9.01.
"Liquidation Expenses": All customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan or REO Property pursuant to Section 3.09 or
3.18 (including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced
Mortgage Loan or REO Property (other than any Specially Serviced Mortgage Loan
or REO Property that is purchased by the Master Servicer, the Special Servicer
or the Majority Controlling Class Certificateholder pursuant to Section 3.18 or
Section 9.01 or that is repurchased or replaced by Union Capital pursuant to the
Union Capital Agreement or by a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase and Sale Agreement), the fee designated as such and
payable to the Special Servicer pursuant to the third paragraph of Section
3.11(c).
"Liquidation Fee Rate": With respect to each Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation Fee is payable,
1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property by exercise of the power of eminent domain or condemnation, exclusive
of any portion thereof required to be released to the related Borrower in
accordance with applicable law and/or the terms and conditions of the related
Mortgage Note and Mortgage; (ii) the liquidation of a Mortgaged Property or
other collateral constituting security for a defaulted Mortgage Loan, through
trustee's
-20-
<PAGE>
sale, foreclosure sale, REO Disposition or otherwise, exclusive of any portion
thereof required to be released to the related Borrower in accordance with
applicable law and/or the terms and conditions of the related Mortgage Note and
Mortgage; (iii) the realization upon any deficiency judgment obtained against a
Borrower; (iv) the purchase of a Defaulted Mortgage Loan by the Majority
Controlling Class Certificateholder pursuant to Section 3.18(b) or by the Master
Servicer or the Special Servicer pursuant to Section 3.18(c) or any other sale
thereof pursuant to Section 3.18(d); (v) the repurchase of a Mortgage Loan by
Union Capital pursuant to the Union Capital Agreement or by a Mortgage Loan
Seller pursuant to the related Mortgage Loan Purchase and Sale Agreement; (vi)
the substitution of one or more Replacement Mortgage Loans for a Deleted
Mortgage Loan by Union Capital pursuant to the Union Capital Agreement or by a
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase and Sale
Agreement (such cash amounts being any Substitution Shortfall Amounts); or (vii)
the purchase of a Mortgage Loan or REO Property by the Master Servicer, the
Special Servicer or the Majority Controlling Class Certificateholder pursuant to
Section 9.01.
"Loan REMIC": Each of the OfficeMax REMIC and the Shadowbrook
Apartments REMIC.
"Loan REMIC Declaration": Each of the OfficeMax REMIC
Declaration and the Shadowbrook Apartments REMIC Declaration.
"Loan REMIC Interest": Any Loan REMIC Regular Interest or Loan
REMIC Residual Interest.
"Loan REMIC Regular Interest": Each of the OfficeMax REMIC
Regular Interest and the Shadowbrook Apartments REMIC Regular Interest.
"Loan REMIC Remittance Rate": The per annum rate at which
interest accrues in respect of a Loan REMIC Regular Interest, as set forth in or
otherwise calculated in accordance with the related Loan REMIC Declaration.
"Loan REMIC Residual Interest": Each of the OfficeMax REMIC
Residual Interest and the Shadowbrook Apartments REMIC Residual Interest.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as
of any date of determination, and without regard to the cross-collateralization
in the case of any Cross-Collateralized Mortgage Loan, a fraction, expressed as
a percentage, the numerator of which is the then current principal amount of
such Mortgage Loan, and the denominator of which is the Appraised Value of the
related Mortgaged Property.
"Majority Controlling Class Certificateholder": As of any date
of determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class or Classes
of Principal Balance Certificates that constitute(s) the Controlling Class as of
such date of determination.
"Master Servicer": GE Capital Loan Services, Inc., or its
successor in interest, in its capacity as master servicer hereunder, or any
successor master servicer appointed as herein provided.
-21-
<PAGE>
"Master Servicer Remittance Amount": With respect to any
Master Servicer Remittance Date, an amount equal to (a) all amounts on deposit
in the Collection Account as of the commencement of business on such Master
Servicer Remittance Date, net of (b) any portion of the amounts described in
clause (a) of this definition that represents one or more of the following: (i)
collected Monthly Payments that are due on a Due Date following the end of the
related Collection Period, (ii) any payments of principal (including Principal
Prepayments) and interest (including Additional Interest), Liquidation Proceeds
and Insurance Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums and/or Yield Maintenance Charges received after
the end of the related Collection Period, (iv) any amounts payable or
reimbursable to any Person from the Collection Account pursuant to clauses (ii)
through (xx) of Section 3.05(a), and (v) any amounts deposited in the Collection
Account in error; provided that the Master Servicer Remittance Amount for the
Master Servicer Remittance Date that occurs in the same calendar month as the
anticipated Final Distribution Date shall be calculated without regard to
clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date": The Business Day preceding
each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and
REO Mortgage Loan, the fee designated as such and payable to the Master Servicer
pursuant to the first paragraph of Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage
Loan and REO Mortgage Loan, 0.05% per annum.
"Maturity Assumptions": Collectively, the assumptions
identified as the "Maturity Assumptions" in the Prospectus Supplement.
"Memorandum": The final Private Placement Memorandum dated
June 11, 1999, relating to the Non-Registered Certificates delivered by the
Depositor to the Underwriter as of the Closing Date.
"Modified Mortgage Loan": Any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(A) affects the amount or timing of any payment of principal
or interest due thereon (other than, or in addition to, bringing
current Monthly Payments with respect to such Mortgage Loan);
(B) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount not less than the fair market value
(as is) of the property to be released, as determined by an Appraisal
delivered to the Special Servicer (at the expense of the related
Borrower and upon which the Special Servicer may conclusively rely);
or
(C) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage
Loan or reduces the likelihood of timely payment of amounts due
thereon.
-22-
<PAGE>
"Monthly Payment": With respect to any Mortgage Loan as of any
Due Date, the scheduled monthly payment (or, in the case of an ARD Loan after
its Anticipated Repayment Date, the minimum required monthly payment) of
principal and/or interest on such Mortgage Loan, including any Balloon Payment,
that is actually payable by the related Borrower from time to time under the
terms of the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Borrower or by reason of a modification, waiver or amendment granted or agreed
to by the Special Servicer pursuant to Section 3.20); provided that the Monthly
Payment due in respect of any ARD Loan after its Anticipated Repayment Date
shall not include Additional Interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the other parties
hereto, and specific ratings of Moody's Investors Service, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of
Moody's, be deemed to refer to such applicable rating category of Moody's,
without regard to any plus or minus or other comparable rating qualification.
"Mortgage": A mortgage, deed of trust, deed to secure debt or
similar document that secures a Mortgage Note and creates a lien on a Mortgaged
Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Sections 1.04 and 2.01, collectively the following documents:
(i) the original executed Mortgage Note, endorsed (either
on the face thereof or pursuant to a separate allonge)
"Pay to the order of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of
DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG2, without
recourse";
(ii) an original or a copy of the Mortgage and of any
intervening assignments thereof that precede the
assignment referred to in clause (iv) of this
definition, in each case (unless such document has not
yet been returned from the applicable recording office)
with evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the
Mortgage) and of any intervening assignments thereof
that precede the assignment referred to in clause (v)
of this definition, in each case (unless such document
has not yet been returned from the applicable recording
office) with evidence of recording indicated thereon;
(iv) an original executed assignment of the Mortgage, in
favor of Norwest Bank Minnesota, National Association,
as trustee for the registered holders of DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2, in recordable form;
-23-
<PAGE>
(v) an original executed assignment of any related
Assignment of Leases (if such item is a document
separate from the Mortgage), in favor of Norwest Bank
Minnesota, National Association, as trustee for the
registered holders of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series
1999-CG2, in recordable form;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution
agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have been
modified or the Mortgage Loan has been assumed;
(vii) the original or a copy of the policy of lender's title
insurance;
(viii) filed copies of any prior UCC Financing Statements in
favor of the originator of such Mortgage Loan or in
favor of any assignee prior to the Trustee (but only to
the extent the related Mortgage Loan Seller had
possession of such UCC Financing Statements prior to
the Closing Date) and, if there is an effective UCC
Financing Statement in favor of the related Mortgage
Loan Seller on record with the applicable public office
for UCC Financing Statements, an original UCC-2 or
UCC-3, as appropriate, in favor of Norwest Bank
Minnesota, National Association, as trustee for the
registered holders of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series
1999-CG2;
(ix) any environmental indemnity agreement, power of
attorney, guaranty, property management agreement,
Ground Lease, intercreditor agreement, cash management
agreement and lock-box agreement, relating to such
Mortgage Loan;
(x) any original documents (including any security
agreements and any Letters of Credit and related letter
of credit reimbursement agreements) relating to,
evidencing or constituting Additional Collateral; and
(xi) any insurance certificates relating to hazard insurance
policies maintained by the Borrower with respect to the
related Mortgaged Property that are in the possession
of the related Mortgage Loan Seller;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans listed on the
Mortgage Loan Schedule and from time to time held in the Trust Fund. As used
herein, the term "Mortgage Loan" includes the related Mortgage Note, Mortgage
and other security documents contained in the related Mortgage File.
-24-
<PAGE>
"Mortgage Loan Purchase and Sale Agreements": The Column
Mortgage Loan Purchase and Sale Agreement, the GECA Mortgage Loan Purchase and
Sale Agreement and the GSMC Mortgage Loan Purchase and Sale Agreement.
"Mortgage Loan Schedule": Together, the three lists of
Mortgage Loans attached hereto as Exhibit B-1A, Exhibit B-1B and Exhibit B-1C,
respectively, as such lists may be amended from time to time in accordance with
this Agreement. Such lists shall set forth the following information with
respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code)
of the related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off
Date Balance;
(iv) the amount of the Monthly Payment due on the first Due
Date following the Closing Date;
(v) the Mortgage Rate as of the Cut-off Date;
(vi) the (A) original and remaining term to stated maturity
and (B) Stated Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the original
and remaining amortization term;
(viii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, the other Mortgage Loans
contained in the related Cross-Collateralized Group;
(ix) whether the Mortgage Loan is an ARD Loan and, if so,
the Anticipated Repayment Date;
(x) whether such Mortgage Loan provides for defeasance and,
if so, the period during which defeasance may occur;
(xi) whether the Mortgage Loan is secured by a fee simple
interest in the Mortgaged Property; by the Borrower's
leasehold interest, and a fee simple interest, in the
Mortgaged Property; or solely by a leasehold interest
in the Mortgaged Property;
(xii) the type of the Mortgaged Property;
(xiii) the name of the originator of the Mortgage Loan;
(xiv) the Interest Accrual Basis; and
(xv) whether the Mortgage Loan is subject to a Designated
Sub-Servicer Agreement.
-25-
<PAGE>
"Mortgage Loan Sellers": GECA, Column and GSMC.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and
any successor REO Mortgage Loans as of any particular date of determination.
"Mortgage Rate": With respect to any Mortgage Loan (and any
successor REO Mortgage Loan), the annualized rate at which interest is scheduled
(in the absence of a default) to accrue on such Mortgage Loan from time to time
in accordance with the related Mortgage Note and applicable law, as such rate
may be modified in accordance with Section 3.20 or in connection with a
bankruptcy, insolvency or similar proceeding involving the related Borrower. In
the case of each of the ARD Loans, the related Mortgage Rate will be subject to
increase in accordance with the related Mortgage Note if the particular Mortgage
Loan is not paid in full by its Anticipated Repayment Date.
"Mortgaged Property": The real property (together with all
improvements and fixtures thereon) subject to the lien of a Mortgage and
constituting collateral for a Mortgage Loan.
"Net Aggregate Prepayment Interest Shortfall": With respect to
any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount of the Compensating Interest Payment
remitted by the Master Servicer pursuant to Section 3.19(a) on the Master
Servicer Remittance Date related to such Distribution Date.
"Net Default Charges": With respect to any Mortgage Loan, any
Default Charges actually collected from the related Borrower or out of other
collections thereon (based on the allocations specified in Section 1.03), net of
any and all Advance Interest accrued on Advances made in respect of such
Mortgage Loan and payable from such Default Charges in accordance with this
Agreement.
"Net Investment Earnings": With respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period on funds
held in such Investment Account, exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds in accordance with Section 3.06 (other than losses of what would otherwise
have constituted interest or other income earned on such funds).
"Net Investment Loss": With respect to any Investment Account
for any Collection Period, the amount by which the aggregate of all losses, if
any, incurred during such Collection Period in connection with the investment of
funds held in such Investment Account in accordance with Section 3.06 (other
than losses of what would otherwise have constituted interest or other income
earned on such funds), exceeds the aggregate of all interest and other income
realized during such Collection Period on such funds; provided that, in the case
of any Investment Account and any particular investment of funds in such
Investment Account, Net Investment Loss shall not include any loss with respect
to such investment which is incurred solely as a result of the insolvency of the
federal or state chartered depository institution or trust company
-26-
<PAGE>
that holds such Investment Account, so long as such depository institution or
trust company satisfied the qualifications set forth in the definition of
Eligible Account at the time such investment was made.
"Net Operating Income": With respect to any Mortgaged
Property, the net operating income derived from such Mortgaged Property for any
specified period, calculated in accordance with Exhibit K.
"NOI Adjustment Worksheet": A report prepared by the Special
Servicer with respect to Specially Serviced Mortgaged Loans and REO Mortgage
Loans, and by the Master Servicer with respect to all other Mortgage Loans,
substantially in the form and containing the information described in Exhibit
E-7 attached hereto, presenting the computations made in accordance with the
methodology described in such Exhibit to "normalize" the full year net operating
income and debt service coverage numbers used in the other reports required by
this Agreement.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c), any
P&I Advance previously made or to be made in respect of any Mortgage Loan or any
REO Mortgage Loan that, as determined by the Master Servicer or, if applicable,
the Trustee or any Fiscal Agent, in its reasonable, good faith judgment, will
not be ultimately recoverable from late payments, Insurance Proceeds,
Liquidation Proceeds or any other recovery on or in respect of such Mortgage
Loan.
"Nonrecoverable Servicing Advance": As evidenced by the
Officer's Certificate and supporting documentation contemplated by Section
3.11(h), any Servicing Advance previously made or to be made in respect of a
Mortgage Loan or REO Property that, as determined by the Master Servicer, the
Special Servicer or, if applicable, the Trustee or any Fiscal Agent, in its
reasonable, good faith judgment, will not be ultimately recoverable from late
payments, Insurance Proceeds, Liquidation Proceeds or any other recovery on or
in respect of such Mortgage Loan or REO Property.
"Non-Registered Certificate": Any Certificate that has not
been registered under the Securities Act. As of the Closing Date, the Class B-3,
Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class C, Class D-1, Class
D-2, Class R-I, Class R-II and Class R-III Certificates will constitute
NonRegistered Certificates.
"Non-United States Person": Any Person other than a United
States Person.
"OfficeMax Mortgage Loan": The Mortgage Loan secured by the
Mortgaged Property identified on the Mortgage Loan Schedule as OfficeMax
"OfficeMax REMIC": The segregated pool of assets designated as
such in Section 2.10(a).
"OfficeMax REMIC Declaration": The REMIC Declaration dated as
of May 21, 1999 with respect to the assets of the OfficeMax REMIC.
-27-
<PAGE>
"OfficeMax REMIC Regular Interest": The uncertificated
"regular interest", within the meaning of Section 860G(a)(1) of the Code, in the
OfficeMax REMIC issued pursuant to the OfficeMax REMIC Declaration. The
principal balance of the OfficeMax REMIC Regular Interest shall equal the
principal balance of the OfficeMax Mortgage Loan or any related Replacement
Mortgage Loan (or, if applicable, the deemed principal balance of any successor
REO Mortgage Loan) outstanding from time to time. Payments and other collections
of amounts received on or in respect of the OfficeMax Mortgage Loan or any
related Replacement Mortgage Loan (or any related REO Property) and allocable
(in accordance with Section 1.03) to interest (adjusted to the related Loan
REMIC Remittance Rate) on, principal of and/or Prepayment Premiums or Yield
Maintenance Charges in respect of such Original Mortgage Loan or any related
Replacement Mortgage Loan (or any successor REO Mortgage Loan) shall be deemed
paid on the OfficeMax REMIC Regular Interest to REMIC I at the time such amounts
are so received. The terms of the OfficeMax REMIC Regular Interest are otherwise
set forth in the related Loan REMIC Declaration.
"OfficeMax REMIC Residual Interest": The sole uncertificated
"residual interest", within the meaning of Section 860G(a)(2) of the Code, in
the OfficeMax REMIC issued pursuant to the OfficeMax REMIC Declaration.
"Officer's Certificate": A certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer or a Responsible Officer
of the Trustee or any Fiscal Agent, as the case may be.
"Operating Statement Analysis Report": As defined in Section
3.12(b).
"Opinion of Counsel": A written opinion of counsel (which
counsel, in the case of any such opinion of counsel relating to the taxation of
the Trust Fund or any portion thereof or the status of any REMIC Pool as a REMIC
or the status of any Grantor Trust Pool as a Grantor Trust for taxation
purposes, shall be Independent of the Depositor, each Mortgage Loan Seller, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent and the
REMIC Administrator, but which may act as counsel to such Person) acceptable to
and delivered to the addressee(s) thereof and which Opinion of Counsel, except
as provided herein, shall not be at the expense of the Trustee or the REMIC
Administrator.
"Original Mortgage Loans": Collectively, those Mortgage Loans
identified on the Mortgage Loan Schedule as being included in the Trust Fund as
of the Closing Date.
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Mortgage Loan,
any advance made by the Master Servicer, the Trustee or any Fiscal Agent
pursuant to Section 4.03.
"P&I Advance Date": The Business Day preceding each
Distribution Date.
"Pass-Through Rate": The per annum rate at which interest
accrues (or is deemed to accrue) in respect of any Class of Regular Interest
Certificates during any Interest Accrual Period, as set forth in or
-28-
<PAGE>
otherwise calculated in accordance with Section 2.14(d), in the case of the
Class S Certificates, or Section 2.14(e), in the case of each Class of Principal
Balance Certificates.
"Percentage Interest": With respect to any Regular Interest
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such Certificate
as of the Closing Date, as specified on the face thereof, and the denominator of
which is the Class Principal Balance or Class Notional Amount, as the case may
be, of the relevant Class as of the Closing Date. With respect to a Class D
Certificate or Residual Interest Certificate, the percentage interest in
distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Performing Mortgage Loan": Any Corrected Mortgage Loan and
any Mortgage Loan as to which a Servicing Transfer Event has not occurred.
"Permitted Investments": Any one or more of the following
obligations or securities:
(i) direct obligations of, or obligations fully guaranteed
as to timely payment of principal and interest by, the
United States or any agency or instrumentality thereof,
provided that each such obligation is backed by the
full faith and credit of the United States;
(ii) repurchase agreements on obligations specified in
clause (i), provided that the short-term unsecured debt
obligations of the party agreeing to repurchase such
obligations are at the time of investment rated in the
highest short-term debt rating category of each of
Moody's and, if rated thereby, Fitch (or, in the case
of either Rating Agency, have such lower rating as will
not result in an Adverse Rating Event with respect to
any Class of Rated Certificates, as confirmed in
writing to the Trustee by such Rating Agency);
(iii) federal funds, uncertificated certificates of deposit,
time deposits and bankers' acceptances of any bank or
trust company organized under the laws of the United
States or any state thereof, provided that the
short-term unsecured debt obligations of such
bank or trust company are at the time of investment
rated in the highest short- term debt rating category
of each of Moody's and, if rated thereby, Fitch (or, in
the case of either Rating Agency, have such lower
rating as will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates, as
confirmed in writing to the Trustee by such Rating
Agency);
(iv) commercial paper of any corporation incorporated under
the laws of the United States or any state thereof (or
of any corporation not so incorporated, provided that
the commercial paper is United States Dollar
denominated and amounts payable thereunder are not
subject to any withholding imposed by any non-United
States jurisdiction), provided that such commercial
paper is rated in the highest short-term debt
rating category of each of Moody's and, if rated
thereby, Fitch (or, in the case of either Rating
Agency, has such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Rated
Certificates, as confirmed in writing to the Trustee by
such Rating Agency);
-29-
<PAGE>
(v) units of money market funds which maintain a constant
net asset value, provided that such units of money
market funds are rated in the highest applicable rating
category of each of Moody's and, if rated thereby,
Fitch (or, in the case of either Rating Agency, have
such lower rating as will not result in an Adverse
Rating Event with respect to any Class of Rated
Certificates, as confirmed in writing to the Trustee by
such Rating Agency); or
(vi) any other obligation or security that is acceptable to
the Rating Agencies and will not result in an Adverse
Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by
each Rating Agency);
provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity, (C) no investment
described hereunder may be sold prior to stated maturity if such sale would
result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code and (D) no investment described
hereunder may have a "r" highlighter or other comparable qualifier attached to
its rating; provided, further, that each investment described hereunder must
have (X) a predetermined fixed amount of principal due at maturity (that cannot
vary or change), (Y) an original maturity of not more than 365 days and a
remaining maturity of not more than thirty (30) days and (Z) except in the case
of a Permitted Investment described in clause (v) above, a fixed interest rate
or an interest rate that is tied to a single interest rate index plus a single
fixed spread; and provided, further, that each investment described hereunder
must be a "cash flow investment" (within the meaning of the REMIC Provisions).
"Permitted Transferee": Any Transferee of a Residual Interest
Certificate other than either a Disqualified Organization or a Non-United States
Person; provided that if a Transferee is classified as a partnership under the
Code, such Transferee shall only be a Permitted Transferee if all of its
beneficial owners are United States Persons.
"Person": Any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Assessment": A "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of Part II of the FNMA
Multifamily Guide, as amended from time to time.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Interest Certificateholder": As to any
taxable year of any REMIC Pool, the Holder of Certificates evidencing the
largest Percentage Interest in the Class of Residual Interest Certificates
constituting the sole class of "residual interests" in respect of such REMIC
Pool.
-30-
<PAGE>
"Prepayment Assumption": For purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Mortgage Loans, the Loan REMIC Regular Interests, the REMIC I Regular Interests,
the REMIC II Regular Interests, the Class S REMIC III Regular Interests and the
Certificates for federal income tax purposes, the assumptions that each ARD Loan
is paid in its entirety on its Anticipated Prepayment Date and that no Mortgage
Loan is otherwise voluntarily prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess": With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part made after
its Due Date in any Collection Period, any payment of interest (net of related
Master Servicing Fees and Additional Servicing Fees payable therefrom and,
further, net of any portion of such interest that represents Default Interest or
Additional Interest) actually collected from the related Borrower and intended
to cover the period from and after such Due Date to, but not including, the date
of prepayment (exclusive, however, of any related Prepayment Premium or Yield
Maintenance Charge that may have been collected).
"Prepayment Interest Shortfall": With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part made prior to
its Due Date in any Collection Period, the amount of interest, to the extent not
collected from the related Borrower (without regard to any Prepayment Premium or
Yield Maintenance Charge that may have been collected), that would have accrued
on the amount of such Principal Prepayment during the period from the date of
prepayment to, but not including, such Due Date (less the amount of related
Master Servicing Fees and Additional Servicing Fees and, if applicable,
exclusive of Default Interest and Additional Interest).
"Prepayment Premium": With respect to any Mortgage Loan, any
premium, penalty or fee paid or payable, as the context requires, by a Borrower
in connection with a Principal Prepayment on, or other early collection of
principal of, a Mortgage Loan or any successor REO Mortgage Loan, to the extent
such premium, penalty or fee is calculated as a percentage of the principal
amount being prepaid or as a specified amount.
"Primary Servicing Office": The office of the Master Servicer
or the Special Servicer, as the context may require, that is primarily
responsible for such party's servicing obligations hereunder.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate", then the
Trustee, in its sole discretion, shall select an equivalent publication that
publishes such "prime rate"; and if such "prime rate" is no longer generally
published or is limited, regulated or administered by a governmental or quasi-
governmental body, then the Trustee shall select a comparable interest rate
index. In either case, such selection shall be made by the Trustee in its sole
discretion and the Trustee shall notify the Master Servicer and the Special
Servicer in writing of its selection.
"Principal Balance Certificate": Any of the Certificates
designated as such in Section 2.09.
"Principal Balance Reduction": Any reduction made in the Class
Principal Balance of any Class of Principal Balance Certificates pursuant to
Section 4.04(a), the Uncertificated Principal Balance of any REMIC II Regular
Interest pursuant to Section 4.04(b) or the Uncertificated Principal Balance of
any REMIC I Regular Interest pursuant to Section 4.04(c).
-31-
<PAGE>
"Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the aggregate (without duplication) of the
following:
(a) the aggregate of all payments of principal (other than
Principal Prepayments) received on the Mortgage Loans during the
related Collection Period, in each case net of any portion of the
particular payment that represents a Late Collection of principal for
which a P&I Advance was previously made for a prior Distribution Date
or that represents the principal portion of a Monthly Payment due on
or before the Cut-off Date or on a Due Date subsequent to the related
Collection Period;
(b) the aggregate of the principal portions of all Monthly
Payments due in respect of the Mortgage Loans for their respective Due
Dates occurring during the related Collection Period that were
received prior to the related Collection Period;
(c) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds and Insurance
Proceeds received on the Mortgage Loans during the related Collection
Period that were identified and applied by the Master Servicer as
recoveries of principal of such Mortgage Loans in accordance with
Section 1.03, in each case net of any portion of such proceeds that
represents a Late Collection of principal due on or before the Cut-off
Date or for which a P&I Advance was previously made for a prior
Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Insurance
Proceeds and REO Revenues received in respect of any REO Properties
during the related Collection Period that were identified and applied
by the Master Servicer as recoveries of principal of the related REO
Mortgage Loans in accordance with Section 1.03, in each case net of
any portion of such proceeds and/or revenues that represents a Late
Collection of principal due on or before the Cut-off Date or for which
a P&I Advance was previously made for a prior Distribution Date; and
(f) the aggregate of the principal portions of all P&I
Advances made in respect of the Mortgage Loans and any REO Mortgage
Loans with respect to such Distribution Date.
"Principal Prepayment": Any voluntary payment of principal
made by the Borrower on a Mortgage Loan that is received in advance of its
scheduled Due Date, that is not accompanied by an amount of interest (without
regard to any Prepayment Premium, Yield Maintenance Charge and/or Additional
Interest that may have been collected) representing scheduled interest due on
any date or dates in any month or months subsequent to the month of prepayment.
"Proposed Plan": As defined in Section 3.17(a).
"Prospectus": The Base Prospectus and the Prospectus
Supplement, together.
-32-
<PAGE>
"Prospectus Supplement": That certain prospectus supplement
dated June 11, 1999, relating to the Registered Certificates, that is a
supplement to the Base Prospectus.
"Purchase Price": With respect to any Mortgage Loan (or REO
Property), a cash price equal to the aggregate of (a) the outstanding principal
balance of such Mortgage Loan (or the related REO Mortgage Loan) as of the date
of purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Mortgage Loan) at the related Mortgage Rate to, but not including,
the Due Date occurring in the Collection Period during which the applicable
purchase or repurchase occurs, (c) all related unreimbursed Servicing Advances,
and (d) solely in the case of a purchase by Union Capital pursuant to the Union
Capital Agreement or by a Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase and Sale Agreement, (i) all accrued and unpaid Advance Interest in
respect of related Advances and (ii) to the extent not otherwise included in the
amount described in the preceding clause (c), any costs and expenses incurred by
the Master Servicer or the Trustee (on behalf of the Trust) in enforcing the
obligation of such Person to purchase such Mortgage Loan.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five (5) years of experience in respect of the relevant geographic
location and property type.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Deleted Mortgage Loan as contemplated by Section 2.03, any
other mortgage loan which, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) is accruing interest at a fixed rate
of interest at least equal to that of the Deleted Mortgage Loan; (iii) has the
same Due Date as the Deleted Mortgage Loan; (iv) is accruing interest on the
same Interest Accrual Basis as the Deleted Mortgage Loan; (v) has a remaining
term to stated maturity not greater than, and not more than two years less than,
that of the Deleted Mortgage Loan and, in any event, has a Stated Maturity Date
not later than two years prior to the Rated Final Distribution Date; (vi) has a
then current Loan-to-Value Ratio not higher than, and a then current Debt
Service Coverage Ratio not lower than, the Loan-to-Value Ratio and Debt Service
Coverage Ratio, respectively, of the Deleted Mortgage Loan as of the Closing
Date; (vii) has comparable prepayment restrictions to those of the Deleted
Mortgage Loan, (viii) will comply (except in a manner that would not be adverse
to the interests of the Certificateholders (as a collective whole) in or with
respect to such mortgage loan), as of the date of substitution, with all of the
representations relating to the Deleted Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement and, in the
case of a Column Third Party Mortgage Loan, the Union Capital Agreement; (ix)
has a Phase I Environmental Assessment relating to the related Mortgaged
Property in its Servicing File, which Phase I Environmental Assessment will
evidence that there is no material adverse environmental condition or
circumstance at the related Mortgaged Property for which further remedial action
-33-
<PAGE>
may be required under applicable law; and (x) constitutes a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code;
provided, however, that if more than one mortgage loan is to be substituted for
any Deleted Mortgage Loan, then all such proposed Replacement Mortgage Loans
shall, in the aggregate, satisfy the requirement specified in clause (i) of this
definition and each such proposed Replacement Mortgage Loan shall, individually,
satisfy each of the requirements specified in clauses (ii) through (x) of this
definition; and provided, further, that no mortgage loan shall be substituted
for a Deleted Mortgage Loan unless (x) such prospective Replacement Mortgage
Loan shall be acceptable to the Controlling Class Representative (or, if there
is no Controlling Class Representative then serving, to the Holders of
Certificates representing a majority of the Voting Rights allocated to the
Controlling Class), in its (or their) sole discretion, and (y) each Rating
Agency shall have confirmed in writing to the Trustee that such substitution
will not in and of itself result in an Adverse Rating Event with respect to any
Class of Rated Certificates (such written confirmation to be obtained by the
party (i.e., GECA, GSMC, Column or Union Capital) effecting the substitution).
It is understood and agreed that the Controlling Class Representative (or, if no
Controlling Class Representative is then serving, the Holders of Certificates
representing a majority of the Voting Rights assigned to the Controlling Class)
could find a prospective Replacement Mortgage Loan unacceptable for any reason
or no reason whatsoever.
"Rated Certificate": Any of the Certificates to which a rating
has been assigned by either Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": The Distribution Date in June
2032.
"Rating Agency": Each of Moody's and Fitch.
"Realized Loss": With respect to: (1) each defaulted Mortgage
Loan as to which a Final Recovery Determination has been made, or with respect
to any successor REO Mortgage Loan as to which a Final Recovery Determination
has been made as to the related REO Property, an amount (not less than zero)
equal to (a) the unpaid principal balance of such Mortgage Loan or REO Mortgage
Loan, as the case may be, as of the commencement of the Collection Period in
which the Final Recovery Determination was made, plus (b) without taking into
account the amount described in subclause (1)(c) of this definition, all unpaid
interest accrued in respect of such Mortgage Loan or REO Mortgage Loan, as the
case may be, to but not including the related Due Date in the Collection Period
in which the Final Recovery Determination was made (exclusive, however, of any
portion of such unpaid interest that constitutes Default Interest or, in the
case of an ARD Loan after its Anticipated Repayment Date, Additional Interest),
minus (c) all payments and proceeds, if any, received in respect of such
Mortgage Loan or REO Mortgage Loan, as the case may be, during the Collection
Period in which such Final Recovery Determination was made (net of any related
Servicing Advances reimbursed therefrom and any related Liquidation Expenses
paid therefrom); (2) each defaulted Mortgage Loan as to which any portion of the
principal or past due interest payable thereunder was canceled in connection
with a bankruptcy, insolvency or similar proceeding involving the related
Borrower or a modification, waiver or amendment of such Mortgage Loan granted or
agreed to by the Master Servicer or the Special Servicer pursuant to Section
3.20, the amount of such principal or past due interest (other than any Default
Interest and, in the case of an ARD Loan after its Anticipated Repayment Date,
Additional Interest) so canceled; and (3) each defaulted Mortgage Loan as to
which the Mortgage Rate thereon has been permanently reduced and not recaptured
for any period in connection with a bankruptcy, insolvency or similar proceeding
involving the related Borrower or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.20, the amount of
-34-
<PAGE>
any consequent reduction in the interest portion of each successive Monthly
Payment due thereon (each such Realized Loss to be deemed to have been incurred
on the Due Date for each affected Monthly Payment).
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificate": Any Certificate that has been
registered under the Securities Act. As of the Closing Date, the Class S, Class
A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class B-1 and Class B-2
Certificates constitute Registered Certificates.
"Regular Interest Certificate": Any of the Certificates
designated as such in Section 2.09.
"Reimbursement Rate": The rate per annum applicable to the
accrual and monthly compounding of Advance Interest, which rate per annum is
equal to the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as
defined in Section 860D of the ----- Code.
"REMIC Administrator": Norwest Bank Minnesota, National
Association or its successor in interest, in its capacity as REMIC administrator
hereunder, or any successor REMIC administrator appointed as herein provided.
"REMIC I": The segregated pool of assets designated as such in
Section 2.10(a)
"REMIC I Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and,
in each such case, designated as a "regular interest" in REMIC I. The REMIC I
Regular Interests have the designations and terms provided for in Section 2.10.
"REMIC I Remittance Rate": The per annum rate at which
interest accrues in respect of any REMIC I Regular Interest during any Interest
Accrual Period, as set forth in or otherwise calculated in accordance with
Section 2.10(f).
"REMIC I Residual Interest": The sole uncertificated "residual
interest", within the meaning of Section 860G(a)(2) of the Code, in REMIC I
issued pursuant to this Agreement.
"REMIC II": The segregated pool of assets designated as such
in Section 2.12(a).
"REMIC II Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder
and, in each such case, designated as a "regular interest" in REMIC II. The
REMIC II Regular Interests have the designations and terms provided for in
Section 2.12.
"REMIC II Remittance Rate": The per annum rate at which
interest accrues in respect of any REMIC II Regular Interest during any Interest
Accrual Period, as set forth in or otherwise calculated in accordance with
Section 2.12(f).
"REMIC III": The segregated pool of assets designated as such
in Section 2.14(a).
-35-
<PAGE>
"REMIC III Certificate": Any of the Certificates designated as
such in Section 2.09.
"REMIC Pool": Any of REMIC I, REMIC II, REMIC III and the two
Loan REMICs.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"REMIC Sub-Account": A sub-account of the Distribution Account
established pursuant to Section 3.04(b), which sub-account shall constitute an
asset of the Trust Fund and REMIC I (or any Loan REMIC), but not an asset of any
Grantor Trust Pool.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16(b) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Banc One Mortgage Capital Markets, LLC [or the name of any successor
Special Servicer], as Special Servicer, in trust for the registered holders of
DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates,
Series 1999-CG2".
"REO Acquisition": The acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of any REO
Property pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Mortgage Loan": The mortgage loan deemed for purposes
hereof to be outstanding with respect to each REO Property. Each REO Mortgage
Loan shall be deemed to provide for monthly payments of principal and/or
interest equal to its Assumed Monthly Payment and otherwise to have the same
terms and conditions as its predecessor Mortgage Loan (such terms and conditions
to be applied without regard to the default on such predecessor Mortgage Loan or
the Trust's acquisition of the subject REO Property). Each REO Mortgage Loan
shall be deemed to have an initial unpaid principal balance and Stated Principal
Balance equal to the unpaid principal balance and Stated Principal Balance,
respectively, of its predecessor Mortgage Loan as of the date of the related REO
Acquisition. All Monthly Payments (other than any Balloon Payment), Assumed
Monthly Payments (in the case of a Balloon Mortgage Loan delinquent in respect
of its Balloon Payment) and other amounts due and owing, or deemed to be due and
owing, in respect of the predecessor Mortgage Loan as of the date of the related
REO Acquisition, shall be deemed to continue to be due and owing in respect of
an REO Mortgage Loan. In addition, all amounts payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including any unpaid or unreimbursed Servicing Fees and Advances
(together with any related unpaid Advance Interest), shall continue to be
payable or reimbursable in the same priority and manner pursuant to Section
3.05(a) to the Master Servicer,
-36-
<PAGE>
the Special Servicer, the Trustee or any Fiscal Agent, as the case may be, in
respect of an REO Mortgage Loan.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trust for the benefit of the Certificateholders
through foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
"REO Status Report": A report substantially in the form and
containing the information described in Exhibit E-9 attached hereto, including,
with respect to each REO Property that was included in the Trust Fund as of the
close of business on the Determination Date immediately preceding the
preparation of such report, among other things, (i) the Acquisition Date of such
REO Property, (ii) the amount of income collected with respect to such REO
Property (net of related expenses) and other amounts, if any, received on such
REO Property during the related Collection Period and (iii) the value of the REO
Property based on the most recent appraisal or other valuation thereof available
to the Special Servicer as of such Determination Date (including any valuation
prepared internally by the Special Servicer).
"REO Tax": As defined in Section 3.17(a).
"Replacement Mortgage Loan": Any mortgage loan that is
substituted by GECA, GSMC, Column or Union Capital for a Deleted Mortgage Loan
as contemplated by Section 2.03.
"Request for Release": A request signed by a Servicing Officer
of, as applicable, the Master Servicer in the form of Exhibit D-1 attached
hereto or the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(c).
"Reserve Account": Any of the accounts established and
maintained pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any
amounts delivered by the related Borrower to be held in escrow by or on behalf
of the mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; or (iii) amounts to be applied as a Principal Prepayment on such
Mortgage Loan or held as Additional Collateral in the event that certain leasing
or other economic criteria in respect of the related Mortgaged Property are not
met.
"Residual Interest Certificate": Any of the Certificates
designated as such in Section 2.09.
-37-
<PAGE>
"Responsible Officer": When used with respect to the Trustee,
the President, the Treasurer, the Secretary, any Vice President, any Assistant
Vice President, any Trust Officer, any Assistant Secretary or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and having direct responsibility for the
administration of this Agreement. When used with respect to any Fiscal Agent or
any Certificate Registrar (other than the Trustee), any officer or assistant
officer thereof.
"Restricted Servicer Reports": Each of the Watch List, the
Operating Statement Analysis Report, the NOI Adjustment Worksheet and the
Comparative Financial Status Report.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any of the Certificates designated as
such in Section 2.09.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate of the Class Principal Balances of
the Class A-1A Certificates and the Class A-1B Certificates outstanding
immediately prior thereto equals or exceeds the sum of (a) the aggregate Stated
Principal Balance of the Mortgage Pool that will be outstanding immediately
following such Distribution Date, plus (b) the lesser of (i) the Principal
Distribution Amount for such Distribution Date and (ii) the portion of the
Available Distribution Amount for such Distribution Date that will remain after
all distributions of Distributable Certificate Interest to be made on the Senior
Certificates on such Distribution Date have been so made.
"Servicer Fee Amount": With respect to each Sub-Servicer and
any date of determination, the aggregate of the products obtained by
multiplying, for each Mortgage Loan serviced by such Sub- Servicer, (a) the
principal balance of such Mortgage Loan as of the end of the immediately
preceding Collection Period and (b) the per annum servicing fee rate specified
in the related Sub-Servicing Agreement for such Mortgage Loan. With respect to
the initial Master Servicer and any date of determination, the aggregate of the
products obtained by multiplying, for each Mortgage Loan, (a) the principal
balance such Mortgage Loan as of the end of the immediately preceding Collection
Period and (b) either (i) in the case of a Mortgage Loan other than an
Additional Servicing Fee Mortgage Loan, the excess, if any, of the Master
Servicing Fee Rate for such Mortgage Loan over the per annum servicing fee rate
(if any) applicable to such Mortgage Loan as specified in any Sub-Servicing
Agreement related to such Mortgage Loan or (ii) in the case of an Additional
Servicing Fee Mortgage Loan, 0.05%.
"Servicing Account": Any of the accounts established and
maintained pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out-of-pocket" costs and expenses paid or to be paid, as the context requires,
out of its own funds, by the Master Servicer or the Special Servicer (or, if
applicable, the Trustee or any Fiscal Agent) in connection with the servicing of
a Mortgage Loan after a default, delinquency or other unanticipated event, or in
connection with the administration of any REO Property, including (1) any such
costs and expenses associated with (a) compliance with the obligations of the
Master Servicer and/or the Special Servicer set forth in Sections 2.02(e),
2.03(b), 2.03(c), 3.03(c) and 3.09, (b) the preservation, insurance,
restoration, protection and management of a Mortgaged Property, including the
cost of any "force placed" insurance policy purchased by the Master Servicer or
the Special Servicer to the extent such cost is allocable to a particular
Mortgaged
-38-
<PAGE>
Property that the Master Servicer or the Special Servicer is required to cause
to be insured pursuant to Section 3.07(a), (c) obtaining any Liquidation
Proceeds or Insurance Proceeds in respect of any such Mortgage Loan or any REO
Property, (d) any enforcement or judicial proceedings with respect to any such
Mortgage Loan, including foreclosures and similar proceedings, (e) the
operation, management, maintenance and liquidation of any REO Property, (f)
obtaining any Appraisal required to be obtained hereunder, and (g) UCC filings
(to the extent that the costs thereof are not reimbursed by the related
Borrower), (2) the reasonable and direct out-of-pocket travel expenses incurred
by the Special Servicer in connection with performing inspections pursuant to
Section 3.12(a), (3) the cost of any Opinion of Counsel expressly required to be
obtained hereunder in connection with the servicing of any particular Mortgage
Loan, to the extent that the related Borrower fails to pay the costs thereof,
and (4) any other expenditure which is expressly designated as a Servicing
Advance herein; provided that notwithstanding anything to the contrary,
"Servicing Advances" shall not include allocable overhead of the Master Servicer
or the Special Servicer, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs incurred by either such party or
any Affiliate thereof in connection with its purchase of any Mortgage Loan or
REO Property pursuant to any provision of this Agreement.
"Servicing Fees": With respect to any Mortgage Loan, the
Master Servicing Fee, the Additional Servicing Fee and the Special Servicing
Fee.
"Servicing File": Any documents (other than documents required
to be part of the related Mortgage File, but including any correspondence file)
in the possession of the Master Servicer or the Special Servicer and relating to
the origination and servicing of any Mortgage Loan or the administration of any
REO Property.
"Servicing Officer": Any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time by the Master Servicer or the Special Servicer, as applicable.
"Servicing Released Bid": As defined in Section 7.01(c).
"Servicing Retained Bid": As defined in Section 7.01(c).
"Servicing Return Date": With respect to any Corrected
Mortgage Loan, the date that servicing thereof is returned by the Special
Servicer to the Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master
Servicer and the Special Servicer, subject to applicable law and the express
terms of the relevant Mortgage Loans, to service and administer the Mortgage
Loans and REO Properties for which it is responsible hereunder: (a) with the
higher of (i) the same care, skill, prudence and diligence with which the Master
Servicer or the Special Servicer, as the case may be, generally services and
administers comparable mortgage loans and real properties for other third
parties pursuant to agreements similar to this Agreement, giving due
consideration to customary and usual standards of practice of prudent
institutional commercial mortgage lenders and loan servicers servicing and
administering their own mortgage loans and real properties, and (ii) the same
care, skill, prudence and
-39-
<PAGE>
diligence with which the Master Servicer or the Special Servicer, as the case
may be, generally services and administers comparable mortgage loans and real
properties owned by it; (b) with a view to the timely collection of all
scheduled payments of principal and interest under the Mortgage Loans, the full
collection of all Prepayment Premiums and Yield Maintenance Charges that may
become payable under the Mortgage Loans and, if a Mortgage Loan comes into and
continues in default and no satisfactory arrangements can be made for the
collection of the delinquent payments (including payments of Prepayment Premiums
and Yield Maintenance Charges), the maximization of the recovery on such
Mortgage Loan to the Certificateholders (as a collective whole) on a present
value basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Mortgage
Rate); and (c) without regard to: (i) any relationship (including a lending
relationship) that the Master Servicer (or any Affiliate thereof) or the Special
Servicer (or any Affiliate thereof), as the case may be, may have with the
related Borrower or with any other party to this Agreement; (ii) the ownership
of any Certificate by the Master Servicer (or any Affiliate thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be; (iii) any
obligation of the Master Servicer or the Special Servicer, as the case may be,
to make Advances; (iv) the right of the Master Servicer (or any Affiliate
thereof) or the Special Servicer (or any Affiliate thereof), as the case may be,
to receive compensation for its services or reimbursement of costs hereunder
generally or with respect to any particular transaction, (v) any ownership by
the Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, of any other mortgage loans or real
property or of the right to service or manage for others any other mortgage
loans or real property; (vi) any subordinate or additional financing (including
partnership or mezzanine debt) that the Master Servicer (or any of its
Affiliates) or the Special Servicer (or any of its Affiliates) has extended to
any Borrower or to an Affiliate of any Borrower; and (vii) any obligation of the
Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, as a Mortgage Loan Seller, to pay any
indemnity or cure any Document Defect or Breach with respect to, or to
repurchase or replace, any Mortgage Loan.
"Servicing Transfer Event": With respect to any Mortgage Loan,
the occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Shadowbrook Apartments Mortgage Loan": The Mortgage Loan
secured by the Mortgaged Property identified on the Mortgage Loan Schedule as
The Shadowbrook Apartments.
"Shadowbrook Apartments REMIC": The segregated pool of assets
designated as such in Section 2.10(a).
"Shadowbrook Apartments REMIC Declaration": The REMIC
Declaration dated as of June 4, 1999 with respect to the assets of the
Shadowbrook Apartments REMIC.
"Shadowbrook Apartments REMIC Regular Interest": The
uncertificated "regular interest", within the meaning of Section 860G(a)(1) of
the Code, in the Shadowbrook Apartments REMIC issued pursuant to the Shadowbrook
Apartments REMIC Declaration. The principal balance of the Shadowbrook
Apartments REMIC Regular Interest shall equal the principal balance of the
Shadowbrook Apartments Mortgage Loan or any related Replacement Mortgage Loan
(or, if applicable, the deemed principal balance of any successor REO Mortgage
Loan) outstanding from time to time. Payments and other collections of amounts
received on or in respect of the Shadowbrook Apartments Mortgage Loan or any
related Replacement Mortgage Loan (or any related REO Property) and allocable
(in accordance with Section 1.03) to interest (adjusted to the related Loan
REMIC Remittance Rate) on, principal of and/or Prepayment
-40-
<PAGE>
Premiums or Yield Maintenance Charges in respect of such Original Mortgage Loan
or any related Replacement Mortgage Loan (or any successor REO Mortgage Loan)
shall be deemed paid on the Shadowbrook Apartments REMIC Regular Interest to
REMIC I at the time such amounts are so received. The terms of the Shadowbrook
Apartments REMIC Regular Interest are otherwise set forth in the related Loan
REMIC Declaration.
"Shadowbrook Apartments REMIC Residual Interest": The sole
uncertificated "residual interest", within the meaning of Section 860G(a)(2) of
the Code, in the Shadowbrook Apartments REMIC issued pursuant to the Shadowbrook
Apartments REMIC Declaration.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to
which any of the following events has occurred:
(a) the related Borrower has failed to make when due any
Monthly Payment (including a Balloon Payment) or any
other payment required under the related Mortgage Note
or the related Mortgage(s), which failure continues, or
the Master Servicer determines, in its reasonable, good
faith judgment, will continue, unremedied for sixty
(60) days; or
(b) if the Master Servicer or any of its Affiliates then
owns an economic interest in the related Borrower, the
related Borrower has failed to make when due any
Monthly Payment (including a Balloon Payment), which
failure continues unremedied as of the P&I Advance Date
for the Distribution Date related to the Collection
Period in which such Monthly Payment was due; or
(c) the Master Servicer has determined, in its reasonable,
good faith judgment, that a default in making a Monthly
Payment (including a Balloon Payment) or any other
payment required under the related Mortgage Note or the
related Mortgage(s) is likely to occur within thirty
(30) days and either (i) the related Borrower has
requested a material modification of the related
Mortgage Loan (other than a waiver of a "due-on-sale"
clause permitted under Section 3.08 or the extension of
the related maturity date) or (ii) such default is
likely to remain unremedied for at least sixty (60)
days; or
(d) the Master Servicer has determined, in its reasonable,
good faith judgment, that a default, other than as
described in clause (a) or (b) above, has occurred that
may materially impair the value of the related
Mortgaged Property as security for the Mortgage Loan,
which default has continued unremedied for the
applicable cure period under the terms of the Mortgage
Loan (or, if no cure period is specified, for sixty
(60) days); or
(e) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary action against the related Borrower under
any present or future federal or state bankruptcy,
insolvency or similar law or the appointment of a
conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the
winding-up or
-41-
<PAGE>
liquidation of its affairs, shall have been entered
against the related Borrower and such decree or order
shall have remained in force undischarged or unstayed
for a period of sixty (60) days; or
(f) the related Borrower shall have consented to the
appointment of a conservator or receiver or liquidator
in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or
relating to such Borrower or of or relating to all or
substantially all of its property; or
(g) the related Borrower shall have admitted in writing its
inability to pay its debts generally as they become
due, filed a petition to take advantage of any
applicable insolvency or reorganization statute, made
an assignment for the benefit of its creditors, or
voluntarily suspended payment of its obligations; or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with
respect to the related Mortgaged Property or
Properties;
provided, however, that a Mortgage Loan shall cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of such Mortgage
Loan, when the related Mortgaged Property has become an REO Property or, so long
as at such time no circumstance identified in clauses (a) through (h) above
exists that would cause the Mortgage Loan to continue to be characterized as a
Specially Serviced Mortgage Loan:
(w) with respect to the circumstances described in clauses
(a) and (b) above, if and when the related Borrower has
made three consecutive full and timely Monthly Payments
under the terms of such Mortgage Loan (as such terms
may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related
Borrower or by reason of a modification, waiver or
amendment granted or agreed to by the Master Servicer
or the Special Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses
(c), (e), (f) and (g) above, if and when such
circumstances cease to exist in the reasonable, good
faith judgment of the Special Servicer;
(y) with respect to the circumstances described in clause
(d) above, if and when such default is cured; and
(z) with respect to the circumstances described in clause
(h) above, if and when such proceedings are terminated.
"Special Servicer": Banc One Mortgage Capital Markets, LLC or
its successor in interest, in its capacity as special servicer hereunder, or any
successor Special Servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan, the fee designated as such
and payable to the Special Servicer pursuant to the first paragraph of Section
3.11(c).
-42-
<PAGE>
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan, 0.25% per annum.
"Startup Day": With respect to each REMIC Pool, the day
designated as such in Section 2.10(a) (in the case of REMIC I), Section 2.12(a)
(in the case of REMIC II), Section 2.14(a) (in the case of REMIC III), or the
related Loan REMIC Declaration (in the case of any Loan REMIC), as applicable.
"Stated Maturity Date": With respect to any Mortgage Loan, the
Due Date specified in the related Mortgage Note (as in effect on the Closing
Date or, in the case of a Replacement Mortgage Loan, on the related date of
substitution) on which the last payment of principal is due and payable under
the terms of such Mortgage Note, without regard to any change in or modification
of such terms in connection with a bankruptcy or similar proceeding involving
the related Borrower or a modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the Special Servicer pursuant to Section 3.20 and,
in the case of an ARD Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan
(and any successor REO Mortgage Loan), a principal balance which (a) initially
shall equal the Cut-off Date Balance of such Mortgage Loan (or, in the case of
any Replacement Mortgage Loan, the unpaid principal balance thereof as of the
related date of substitution, after application of all payments of principal due
thereon on or before such date, whether or not received), and (b) shall be
permanently reduced on each subsequent Distribution Date (to not less than zero)
by (i) that portion, if any, of the Principal Distribution Amount for such
Distribution Date allocable to such Mortgage Loan (or successor REO Mortgage
Loan), and (ii) the principal portion of any Realized Loss incurred in respect
of such Mortgage Loan (or successor REO Mortgage Loan) during the related
Collection Period; provided that, if a Liquidation Event occurs in respect of
any Mortgage Loan or REO Property, then the "Stated Principal Balance" of such
Mortgage Loan or of the related REO Mortgage Loan, as the case may be, shall be
zero commencing as of the Distribution Date in the Collection Period next
following the Collection Period in which such Liquidation Event occurred.
"Subordinated Certificate": Any of the Certificates designated
as such in Section 2.09.
"Sub-Servicer": Any Person with which the Master Servicer or
the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": In connection with the
substitution of one or more Replacement Mortgage Loans for any Deleted Mortgage
Loan, the amount, if any, by which the Purchase Price for such Deleted Mortgage
Loan (calculated as if it were to be repurchased, instead of replaced, on the
relevant date of substitution), exceeds the initial Stated Principal Balance or
the initial aggregate Stated Principal Balance, as the case may be, of such
Replacement Mortgage Loan(s).
"Successful Bidder": As defined in Section 7.01(c).
-43-
<PAGE>
"Tax Matters Person": With respect to any REMIC Pool, the
Person designated as the "tax matters person" of such REMIC Pool in the manner
provided under Treasury regulation section 1.860F-4(d) and temporary Treasury
regulation section 301.6231(a)(7)-1T, which Person shall, pursuant to Section
10.01(b), be the Plurality Residual Interest Certificateholder in respect of the
related class of Residual Interest Certificates.
"Tax Returns": The federal income tax return on IRS Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holder of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each REMIC Pool due to its classification as a REMIC under the
REMIC Provisions, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or filed
with the IRS under any applicable provisions of federal tax law or any other
governmental taxing authority under applicable state or local tax laws.
"Termination Price": As defined in Section 9.01.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d).
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Treasury Rate": As defined in Section 4.01(b).
"Trust": The trust created hereby.
"Trustee": Norwest Bank Minnesota, National Association or its
successor in interest, in its capacity as trustee hereunder, or any successor
trustee appointed as herein provided.
"Trustee Report": As defined in Section 4.02(a).
"Trustee's Fee": With respect to any Mortgage Loan or REO
Mortgage Loan, the fee designated as such and payable to the Trustee pursuant to
Section 8.05(a).
"Trustee's Fee Rate": 0.0012% per annum.
"Trust Fund": Collectively, all of the assets of all the REMIC
Pools and Grantor Trust Pools.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
-44-
<PAGE>
"UCC Financing Statement": A financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Accrued Interest": The interest accrued from
time to time in respect of any REMIC I Regular Interest (calculated in
accordance with Section 2.10(g) hereof) or any REMIC II Regular Interest
(calculated in accordance with Section 2.12(g) hereof).
"Uncertificated Distributable Interest": With respect to any
REMIC I Regular Interest, for any Distribution Date, an amount of interest equal
to all Uncertificated Accrued Interest in respect of such REMIC I Regular
Interest for the related Interest Accrual Period, reduced (to not less than
zero) by that portion, if any, of any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date that is allocable to the related Mortgage
Loan; and, with respect to any REMIC II Regular Interest, for any Distribution
Date, an amount of interest equal to all Uncertificated Accrued Interest in
respect of such REMIC II Regular Interest for the related Interest Accrual
Period, reduced (to not less than zero) by the product of (i) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (ii) a
fraction, expressed as a decimal, the numerator of which is the Uncertificated
Accrued Interest in respect of such REMIC II Regular Interest for the related
Interest Accrual Period, and the denominator of which is the aggregate
Uncertificated Accrued Interest in respect of all the REMIC II Regular Interests
for the related Interest Accrual Period.
"Uncertificated Principal Balance": The principal balance
outstanding from time to time of any REMIC I Regular Interest (calculated in
accordance with Section 2.10(e) hereof) or any REMIC II Regular Interest
(calculated in accordance with Section 2.12(e) hereof).
"Underwriters": DLJSC and Goldman Sachs.
"Union Capital": Union Capital Investments, LLC or its
successor in interest.
"Union Capital Agreement": With respect to each Mortgage Loan
originated by Union Capital, the Seller's Warranty Certificate dated as of June
11, 1999, executed and delivered by Union Capital in favor of DLJ Mortgage
Capital, Inc., the form of which is attached hereto as Exhibit N.
"United States Person": A citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
"Unreimbursed Principal Balance Reduction": Any Principal
Balance Reduction made with respect to a Class of Principal Balance
Certificates, a REMIC II Regular Interest or a REMIC I Regular Interest for
which no distribution or deemed distribution of reimbursement has been made
pursuant to Section 4.01(a), Section 4.01(i) or Section 4.01(j), as applicable.
-45-
<PAGE>
"Unrestricted Servicer Reports": Each of the Delinquent Loan
Status Report, the Historical Loan Modification Report, the Historical Loss
Estimate Report, the REO Status Report, the CSSA Loan Periodic Update File, the
CSSA Property File and the CSSA Loan Set-Up File.
"USAP": The Uniform Single Attestation Program for Mortgage
Bankers.
"USPAP": The Uniform Standards of Professional Appraisal
Practices.
"Voting Rights": The voting rights evidenced by the respective
Certificates. At all times during the term of this Agreement, 99.0% of the
Voting Rights shall be allocated among all the Classes of Principal Balance
Certificates in proportion to their respective Class Principal Balances, and
1.0% of the Voting Rights shall be allocated to the Class S Certificates. Voting
Rights allocated to a particular Class of Certificates shall be allocated among
such Certificates in proportion to the respective Percentage Interests evidenced
thereby.
"Warranting Party": As defined in Section 2.03(a).
"Watch List": For any Determination Date, a report
(substantially in the form of Exhibit E-10) of all Mortgage Loans that
constitute one of the following types of Mortgage Loans as of such Determination
Date (the "Watch List"): (i) a Mortgage Loan that has a then current Debt
Service Coverage Ratio that is less than 1.10x; (ii) a Mortgage Loan as to which
any required inspection of the related Mortgaged Property conducted by the
Master Servicer indicates a problem that the Master Servicer determines can
reasonably be expected to materially adversely affect the cash flow generated by
such Mortgaged Property; (iii) a Mortgage Loan as to which the Master Servicer
has actual knowledge of material damage or waste at the related Mortgaged
Property; (iv) a Mortgage Loan as to which it has come to the Master Servicer's
attention in the performance of its duties under this Agreement (without any
expansion of such duties by reason thereof) that any tenant occupying 25% or
more of the space in the related Mortgaged Property (A) has vacated such space
(without being replaced by a comparable tenant and lease) or (B) has declared
bankruptcy; (v) a Mortgage Loan that is at least thirty (30) days delinquent in
payment; and (vi) a Mortgage Loan that is within sixty (60) days of maturity. No
later than one Business Day after each Determination Date, the Special Servicer
shall provide the Master Servicer with all information in its possession
regarding the Specially Serviced Mortgage Loans relevant to the preparation of
the Watch List.
"Workout Fee": With respect to each Corrected Mortgage Loan,
the fee designated as such and payable to the Special Servicer pursuant to the
second paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage
Loan, 1.0%.
"Year 2000 Ready": With respect to any Person, all computers,
hardware, imbedded microchips, software and material date-affected technology
used in such Person's business operations are able to correctly and effectively
store, process and otherwise deal with date data from, into, between and
otherwise concerning the 20th and 21st centuries, and otherwise continue to
function properly and unimpaired with respect to all calendar dates falling on
or after January 1, 2000.
-46-
<PAGE>
"Yield Maintenance Charge": With respect to any Mortgage Loan,
any premium, penalty or fee paid or payable, as the context requires, by a
Borrower in connection with a Principal Prepayment on, or other early collection
of principal of, a Mortgage Loan, other than any Prepayment Premium.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as
the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles as in effect from time to time;
(iii) references herein to "Articles", "Sections",
"Subsections", "Paragraphs" and other subdivisions without reference
to a document are to designated Articles, Sections, Subsections,
Paragraphs and other subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to
a Section is a reference to such Subsection as contained in the same
Section in which the reference appears, and this rule shall also apply
to Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto",
"hereby" and other words of similar import refer to this Agreement as
a whole and not to any particular provision;
(vi) "or" is not exclusive; and
(vii) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
SECTION 1.03. Certain Calculations in Respect of the Mortgage
Pool.
(a) All amounts collected in respect of any
Cross-Collateralized Group in the form of payments from Borrowers, Insurance
Proceeds and Liquidation Proceeds, shall be applied by the Master Servicer among
the Mortgage Loans constituting such Cross-Collateralized Group in accordance
with the express provisions of the related loan documents and, in the absence of
such express provisions, on a pro rata basis in accordance with the respective
amounts then "due and owing" as to each such Mortgage Loan. All amounts
collected in respect of or allocable to any particular Mortgage Loan (whether or
not such Mortgage Loan constitutes part of a Cross-Collateralized Group) in the
form of payments from Borrowers, Liquidation Proceeds or Insurance Proceeds
shall be applied to amounts due and owing under the related Mortgage Note and
Mortgage (including for principal and accrued and unpaid interest) in accordance
with the express provisions of the related Mortgage Note and Mortgage and, in
the absence of such express provisions, shall be applied for purposes of this
Agreement: first, as a recovery of any related and unreimbursed Servicing
-47-
<PAGE>
Advances and, if applicable, unpaid Liquidation Expenses; second, as a recovery
of accrued and unpaid interest on such Mortgage Loan to, but not including, the
date of receipt (or, in the case of a full Monthly Payment from any Borrower,
through the related Due Date), exclusive, however, of any portion of such
accrued and unpaid interest that constitutes Default Interest or, in the case of
an ARD Loan after its Anticipated Repayment Date, that constitutes Additional
Interest; third, as a recovery of principal of such Mortgage Loan then due and
owing, including by reason of acceleration of the Mortgage Loan following a
default thereunder (or, if a Liquidation Event has occurred in respect of such
Mortgage Loan, as a recovery of principal to the extent of its entire remaining
unpaid principal balance); fourth, unless a Liquidation Event has occurred in
respect of such Mortgage Loan, 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, unless a Liquidation Event has occurred in respect of such Mortgage Loan,
as a recovery of Reserve Funds to the extent then required to be held in escrow;
sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then
due and owing under such Mortgage Loan; seventh, as a recovery of any Default
Charges then due and owing under such Mortgage Loan; eighth, as a recovery of
any assumption fees and modification fees then due and owing under such Mortgage
Loan; ninth, as a recovery of any other amounts then due and owing under such
Mortgage Loan other than remaining unpaid principal and, in the case of an ARD
Loan after its Anticipated Repayment Date, other than Additional Interest;
tenth, as a recovery of any remaining principal of such Mortgage Loan to the
extent of its entire remaining unpaid principal balance; and, eleventh, in the
case of an ARD Loan after its Anticipated Repayment Date, as a recovery of
accrued and unpaid Additional Interest on such ARD Loan to but not including the
date of receipt.
(b) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be treated: first, as a
recovery of any related and unreimbursed Servicing Advances and, if applicable,
unpaid Liquidation Expenses; second, as a recovery of accrued and unpaid
interest on the related REO Mortgage Loan to, but not including, the Due Date in
the Collection Period of receipt, exclusive, however, of any portion of such
accrued and unpaid interest that constitutes Default Interest or, in the case of
an REO Mortgage Loan that relates to an ARD Loan after its Anticipated Repayment
Date, that constitutes Additional Interest; third, as a recovery of principal of
the related REO Mortgage Loan to the extent of its entire unpaid principal
balance; fourth, as a recovery of any Prepayment Premium or Yield Maintenance
Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
fifth, as a recovery of any other amounts deemed to be due and owing in respect
of the related REO Mortgage Loan (other than, in the case of an REO Mortgage
Loan that relates to an ARD Loan after its Anticipated Repayment Date, accrued
and unpaid Additional Interest); and sixth, in the case of an REO Mortgage Loan
that relates to an ARD Loan after its Anticipated Repayment Date, any accrued
and unpaid Additional Interest.
(c) For the purposes of this Agreement, Additional Interest on
an ARD Loan or a successor REO Mortgage Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such ARD Loan or successor REO Mortgage
Loan, notwithstanding that the terms of the related loan documents so permit. To
the extent any Additional Interest is not paid on a current basis, it shall be
deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage
Loan or REO Property and allocable to fees and charges owing in respect of such
Mortgage Loan or the related REO Mortgage Loan, as the case may be, that
constitute Additional Master Servicing Compensation payable to the Master
Servicer
-48-
<PAGE>
and/or Additional Special Servicing Compensation payable to the Special
Servicer, are insufficient to cover the full amount of such fees and charges,
such amounts shall be allocated between such of those fees and charges as are
payable to the Master Servicer, on the one hand, and such of those fees and
charges as are payable to the Special Servicer, on the other, pro rata in
accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect
of any Mortgage Loan or REO Property shall be determined by the Master Servicer
and reflected in the appropriate monthly report from the Master Servicer and in
the appropriate monthly Trustee Report as provided in Section 4.02.
SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans identified on the Mortgage
Loan Schedule as being cross-collateralized with each other are, in the case of
each such particular group of Mortgage Loans, evidenced by a single mortgage
note and secured by mortgages, deeds of trust and/or deeds to secure debt on all
the Mortgaged Properties identified on the Mortgage Loan Schedule as
corresponding to such group. Each such Mortgage Loan actually represents a
portion of the entire indebtedness evidenced by the related mortgage note that
has been allocated to the Mortgaged Property identified on the Mortgage Loan
Schedule as corresponding to such Mortgage Loan. Each of the Mortgage Loans
constituting each such group shall be deemed to be a separate Mortgage Loan that
is (i) evidenced by a mortgage note identical to the mortgage note that
evidences such group (but in a principal amount equal to the principal balance
allocated to such Mortgage Loan) and (ii) cross-defaulted and
cross-collateralized with each other Mortgage Loan in such group. In addition,
it is hereby acknowledged that certain other groups of Mortgage Loans identified
on the Mortgage Loan Schedule as being cross-collateralized with each other are,
in the case of each such particular group of Mortgage Loans, by their terms,
cross-defaulted and cross-collateralized with each other. For purposes of
reference only in this Agreement, and without in any way limiting the servicing
rights and powers of the Master Servicer and/or the Special Servicer, with
respect to any Cross-Collateralized Mortgage Loan (or successor REO Mortgage
Loan), the Mortgaged Property (or REO Property) that relates or corresponds
thereto shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including each of the
defined terms set forth in Section 1.01, shall be interpreted in a manner
consistent with this Section 1.04; provided that, if there exists with respect
to any Cross-Collateralized Group only one original of any document referred to
in the definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
-49-
<PAGE>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS,
CLASS S REMIC III REGULAR INTERESTS AND CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common
law trust be established pursuant to this Agreement and, further, that such
trust be designated as "DLJ Commercial Mortgage Trust 1999- CG2". Norwest Bank
Minnesota, National Association is hereby appointed, and does hereby agree, to
act as Trustee hereunder and, in such capacity, to hold the Trust Fund in trust
for the exclusive use and benefit of all present and future Certificateholders.
It is not intended that this Agreement create a partnership or a joint-stock
association.
(b) The Depositor, concurrently with the execution and
delivery hereof, does hereby sell, assign, transfer and otherwise convey to the
Trustee without recourse for the benefit of the Certificateholders, all the
right, title and interest of the Depositor in, to and under (i) the Original
Mortgage Loans, and all payments under and proceeds of such Mortgage Loans
received after the Closing Date (other than scheduled payments of interest and
principal due on or before the Cut-off Date), together with all documents
included in the related Mortgage Files and any related Additional Collateral;
(ii) any REO Property acquired in respect of any such Mortgage Loan; (iii) such
funds or assets as from time to time are deposited in the Collection Account,
the Distribution Account, the Interest Reserve Account and, if established, the
REO Account; (iv) Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and, to the extent
related to the foregoing and applicable, under Sections 9, 10, 13, 14, 15, 16,
17 and 19) of each Mortgage Loan Purchase and Sale Agreement, (v) the Union
Capital Agreement (insofar as such right, title and interest was assigned to the
Depositor under the Column Mortgage Loan Purchase and Sale Agreement); (vi) the
Loan REMIC Interests and the Loan REMIC Declarations; and (vii) all other assets
included or to be included in the Trust Fund. This conveyance is subject to the
right of the Designated Sub-Servicers to primary service certain of the Original
Mortgage Loans pursuant to the Designated Sub-Servicer Agreements, Archon's
rights under the Designated Sub- Servicer Agreements and, in the case of each of
the OfficeMax Mortgage Loan and the Shadowbrook Apartments Mortgage Loan, the
related Loan REMIC Declaration.
(c) The conveyance of the Mortgage Loans (and, in the case of
the OfficeMax Mortgage Loan and the Shadowbrook Apartments Mortgage Loan, the
related Loan REMIC Interests) and the related rights and property accomplished
hereby is absolute and is intended by the parties to constitute an absolute
transfer of such Mortgage Loans and such other related rights and property by
the Depositor to the Trustee for the benefit of the Certificateholders.
Furthermore, it is not intended that such conveyance be deemed a pledge of
security for a loan. If such conveyance is deemed to be a pledge of security for
a loan, however, the Depositor intends that the rights and obligations of the
parties to such loan shall be established pursuant to the terms of this
Agreement. The Depositor also intends and agrees that, in such event, (i) this
Agreement shall constitute a security agreement under applicable law, (ii) the
Depositor shall be deemed to have granted to the Trustee (in such capacity) a
first priority security interest in all of the Depositor's right, title and
interest in and to the assets constituting the Trust Fund, including the
Mortgage Loans subject hereto from time to time, all principal and interest
received on or with respect to such Mortgage Loans after the Closing Date
-50-
<PAGE>
(other than scheduled payments of interest and principal due and payable on such
Mortgage Loans on or prior to the Cut-off Date or, in the case of a Replacement
Mortgage Loan, on or prior to the related date of substitution), all amounts
held from time to time in the Collection Account, the Distribution Account, the
Interest Reserve Account and, if established, the REO Account and all
reinvestment earnings on such amounts, and all of the Depositor's right, title
and interest under Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and, to the extent
related to the foregoing, under Sections 9, 10, 13, 14, 15, 16, 17 and 19) of
each Mortgage Loan Purchase Agreement and under the Union Capital Agreement
(insofar as, in the case of the Union Capital Agreement, such right, title and
interest was assigned to the Depositor under the Column Mortgage Loan Purchase
Agreement), (iii) the possession by the Trustee or its agent of the Mortgage
Notes with respect to the Mortgage Loans subject hereto from time to time and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or person designated by such secured party
for the purpose of perfecting such security interest under applicable law, and
(iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor shall file or cause
to be filed, as a precautionary filing, a Form UCC-1 substantially in the form
attached as Exhibit J hereto in all appropriate locations in the State of New
York promptly following the initial issuance of the Certificates, and the Master
Servicer shall prepare and file at each such office, and the Trustee shall
execute, continuation statements with respect thereto, in each case within six
months prior to the fifth anniversary of the immediately preceding filing. The
Depositor shall cooperate in a reasonable manner with the Trustee and the Master
Servicer in preparing and filing such continuation statements. This Section
2.01(c) shall constitute notice to the Trustee pursuant to any requirements of
the UCC in effect in New York.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
requested the Mortgage Loan Sellers, pursuant to their respective Mortgage Loan
Purchase Agreements, to deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee or a Custodian appointed thereby, on or before
the Closing Date, the Mortgage File and any Additional Collateral (other than
Reserve Funds) for each Original Mortgage Loan so assigned; provided that if, as
to any Mortgage Loan, there shall not have been delivered the original or a copy
of the related lender's title insurance policy referred to in the definition of
"Mortgage File" solely because such policy has not yet been issued, the delivery
obligations of the related Mortgage Loan Seller and/or, in the case of any
Column Third Party Mortgage Loan, Union Capital as contemplated by this Article
shall be deemed to be satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, so long as
(i) GECA, Column, GSMC or Union Capital, as applicable, shall have delivered to
the Trustee on or before the Closing Date a commitment for title insurance
"marked- up" at the closing of such Mortgage Loan, (ii) GECA, Column, GSMC or
Union Capital, as applicable, is obligated under the related Mortgage Loan
Purchase and Sale Agreement or the Union Capital Agreement, as applicable, to
deliver to the Trustee, promptly following the receipt thereof, the original
related lender's title insurance policy (or a copy thereof), and (iii) as of the
date that is 180 days following the Closing Date, GECA, Column, GSMC or Union
Capital, as applicable, has delivered to the Trustee or a Custodian appointed
thereby the original related lender's title insurance policy. The Depositor
shall deliver to the Trustee on or before the Closing Date a fully executed
counterpart of each Mortgage Loan Purchase and Sale Agreement and the Union
Capital Agreement.
-51-
<PAGE>
Also in connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor shall deliver to and deposit with, or cause
to be delivered to and deposited with, the Trustee or a Custodian appointed
thereby, on or before the Closing Date, the originals or copies of the Loan
REMIC Declarations.
(e) As soon as reasonably possible, and in any event within 45
days after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary) and cause to be submitted for
recording or filing, as the case may be, in the appropriate office for real
property records or UCC Financing Statements, as applicable, each assignment of
Mortgage and assignment of Assignment of Leases in favor of the Trustee referred
to in clauses (iv) and (v) of the definition of "Mortgage File" that has been
received by the Trustee or a Custodian on its behalf and each UCC-2 and UCC-3 in
favor of the Trustee referred to in clause (viii) of the definition of "Mortgage
File" that has been received by the Trustee or a Custodian on its behalf. Each
such assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording, and each such UCC-2 and UCC-3 shall
reflect that the file copy thereof should be returned to the Trustee following
filing; provided that in those instances where the public recording office
retains the original assignment of Mortgage or assignment of Assignment of
Leases the Trustee shall obtain therefrom a certified copy of the recorded
original. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Trustee shall
direct the related Mortgage Loan Seller to prepare or cause to be prepared
promptly, pursuant to the related Mortgage Loan Purchase and Sale Agreement, a
substitute therefor or cure such defect, as the case may be, and thereafter the
Trustee shall, upon receipt thereof, cause the same to be duly recorded or
filed, as appropriate. The Depositor shall be responsible for paying the fees
and expenses of the Trustee in connection with the foregoing, as more
particularly provided for in that separate letter agreement dated May 7, 1999,
between the Depositor and the Trustee.
(f) Also in connection with the Depositor's assignment
pursuant to Section 2.01(b) above, the Depositor hereby represents and warrants
that it has requested the Mortgage Loan Sellers, pursuant to their respective
Mortgage Loan Purchase Agreements, to deliver to and deposit with, or cause to
be delivered to and deposited with, the Master Servicer, on or before the
Closing Date, the following items: (i) originals or copies of all financial
statements, appraisals, environmental/engineering reports, leases, rent rolls
and tenant estoppels in the possession or under the control of the particular
Mortgage Loan Seller that relate to the Original Mortgage Loans and, to the
extent they are not required to be a part of a Mortgage File in accordance with
the definition thereof, originals or copies of all documents, certificates and
opinions in the possession or under the control of the particular Mortgage Loan
Seller that were delivered by or on behalf of the related Borrowers in
connection with the origination of the Original Mortgage Loans; and (ii) all
unapplied Reserve Funds and Escrow Payments in respect of the Original Mortgage
Loans (except with respect to the Additional Servicing Fee Mortgage Loans, for
which such escrow, reserve or other comparable account may be held by the
Designated Sub-Servicer). The Master Servicer shall hold all such documents,
records and funds on behalf of the Trustee in trust for the benefit of the
Certificateholders.
-52-
<PAGE>
SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02, the
Trustee, by its execution and delivery of this Agreement, hereby accepts
receipt, directly or through a Custodian on its behalf, of (i) the Original
Mortgage Loans and all documents delivered to it that constitute portions of the
related Mortgage Files, (ii) the Loan REMIC Interests, and (iii) all other
assets delivered to it and included in the Trust Fund, in good faith and without
notice of any adverse claim, and declares that it or a Custodian on its behalf
holds and will hold such documents and any other documents received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Original Mortgage Loans, the Loan REMIC Interests and such other assets,
together with any other Mortgage Loans and assets subsequently delivered to it
that are to be included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders. The Trustee or such
Custodian shall hold any Letter of Credit in a custodial capacity only and shall
have no obligation to maintain, extend the term of, enforce or otherwise pursue
any rights under such Letter of Credit. In connection with the foregoing, the
Trustee hereby certifies to each of the other parties hereto, the Mortgage Loan
Sellers and the Underwriters that, as to each Original Mortgage Loan, except as
specifically identified in the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Exhibit B-2, (i) the original Mortgage Note specified in
clause (i) of the definition of "Mortgage File" and all allonges thereto, if
any, are in its possession or the possession of a Custodian on its behalf, and
(ii) such Mortgage Note has been reviewed by it or by such Custodian on its
behalf and (A) appears regular on its face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appears to have been executed and (C) purports to relate to such Mortgage
Loan.
(b) On or about the 45th day following the Closing Date (and,
if any exceptions are noted and/or if the recordation/filing contemplated by
Section 2.01(e) has not been completed (based solely on receipt by the Trustee
of the particular documents showing evidence of the recordation/filing), every
180 days thereafter until the earliest of (i) the date on which such exceptions
are eliminated, (ii) the date on which all the affected Mortgage Loans are
removed from the Trust Fund and (iii) the second anniversary of the Closing
Date), the Trustee or a Custodian on its behalf shall review the documents
delivered to it or such Custodian with respect to each Original Mortgage Loan,
and the Trustee shall, subject to Sections 1.04, 2.01, 2.02(c) and 2.02(d),
certify in writing (substantially in the form of Exhibit B-3) to each of the
other parties hereto, the Mortgage Loan Sellers and the Underwriters that, as to
each Original Mortgage Loan then subject to this Agreement (except as
specifically identified in any exception report annexed to such certification):
(i) the original Mortgage Note specified in clause (i) of the definition of
"Mortgage File", the original or certified copy of each recorded document
specified in clauses (ii) through (v) of the definition of "Mortgage File", the
original or copy of the policy of title insurance specified in clause (vii) of
the definition of "Mortgage File" and each document specified in clause (viii)
of the definition of "Mortgage File" (without regard to the parenthetical), is
in its possession or the possession of a Custodian on its behalf; (ii) if such
report is due after January 1, 2000, the recordation/filing contemplated by
Section 2.01(e) has been completed (based solely on receipt by the Trustee of
the particular recorded/filed documents); (iii) all documents received by it or
any Custodian with respect to such Mortgage Loan have been reviewed by it or by
such Custodian on its behalf and (A) appear regular on their face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Borrower), (B) appear to have been executed and (C) purport to
relate to such Mortgage Loan; and (iv) based on the examinations referred to in
Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (ii) (other than the zip code) and (vi)(B) of
the definition of "Mortgage Loan Schedule" accurately reflects the information
set forth in the Mortgage File. If GECA,
-53-
<PAGE>
Column, GSMC or Union Capital substitutes a Replacement Mortgage Loan for any
Deleted Mortgage Loan as contemplated by Section 2.03, the Trustee or a
Custodian on its behalf shall review the documents delivered to it or such
Custodian with respect to such Replacement Mortgage Loan, and the Trustee shall
deliver a comparable certification in respect of such Replacement Mortgage Loan,
on or about the 30th day following the related date of substitution (and, if any
exceptions are noted, every 90 days thereafter for so long as any exceptions
remain or until such Replacement Mortgage Loan is removed from the Trust Fund).
(c) None of the Trustee, the Master Servicer, the Special
Servicer or any Custodian is under any duty or obligation to inspect, review or
examine any of the documents, instruments, certificates or other papers relating
to the Mortgage Loans delivered to it to determine that the same are valid,
legal, effective, genuine, binding, enforceable, sufficient or appropriate for
the represented purpose or that they are other than what they purport to be on
their face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) In performing the reviews contemplated by subsections (a)
and (b) above, the Trustee may conclusively rely on the related Mortgage Loan
Seller as to the purported genuineness of any such document and any signature
thereon. It is understood that the scope of the Trustee's review of the Mortgage
Files is limited solely to confirming that the documents specified in clauses
(i) through (v), (vii) and (viii) of the definition of "Mortgage File" have been
received and such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) above.
(e) If any party hereto discovers that any document
constituting a part of a Mortgage File has not been properly executed, is
missing, contains information that does not conform in any material respect with
the corresponding information set forth in the Mortgage Loan Schedule (and the
terms of such document have not been modified by written instrument contained in
the Mortgage File), or does not appear to be regular on its face (each, a
"Document Defect"), then such party shall give prompt written notice thereof to
the other parties hereto, including (unless it is the party that discovered the
Document Defect) the Trustee (which shall in turn notify the Controlling Class
Representative). Upon the Trustee's discovery or receipt of notice of any such
Document Defect, the Trustee shall notify the Master Servicer, the Underwriters,
the related Mortgage Loan Seller and, in the case of a Column Third Party
Mortgage Loan, Union Capital. If any Document Defect is not corrected within 90
days of such notice, and such Document Defect materially and adversely affects
the value of any Mortgage Loan or the interests of the Certificateholders
therein, the Master Servicer (or, if the Mortgage Loan Seller of the affected
Mortgage Loan is an Affiliate of the Master Servicer, subject to Section 8.02,
the Trustee) shall, on behalf of the Trust, exercise such rights and remedies as
the Trust may have under the Mortgage Loan Purchase and Sale Agreement and/or,
in the case of any Column Third Party Mortgage Loan, under the Union Capital
Agreement with respect to such Document Defect in such manner as it determines,
in its good faith and reasonable judgment, is in the best interests of the
Certificateholders (taken as a collective whole). Any and all reasonable
out-of-pocket expenses incurred by the Master Servicer (or, if applicable, the
Trustee) (including, without limitation, reasonable attorney fees and expenses)
with respect to the foregoing, together with any additional out-of-pocket
expenses reasonably incurred by the Master Servicer or Special Servicer in
performing their respective servicing functions as a result of a Document
Defect, shall constitute Servicing Advances in respect of the affected Mortgage
Loan.
-54-
<PAGE>
SECTION 2.03. Certain Repurchases and Substitutions of
Mortgage Loans by the Originators.
(a) If any party hereto or any Certificateholder discovers or,
other than pursuant to this Section 2.03(a), receives notice of a breach of any
representation or warranty relating to any Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement or, in the
case of a Column Third Party Mortgage Loan, the Union Capital Agreement (a
"Breach"), the party or Certificateholder discovering or receiving such notice
of such Breach shall (without making any determination of the materiality or
adverseness thereof) give prompt written notice thereof to the other parties
hereto, including (unless it is the party that discovered the Breach) the
Trustee, and the Trustee shall in turn (without making any determination of the
materiality or adverseness thereof) notify the Controlling Class Representative.
If such Breach materially and adversely affects the value of such Mortgage Loan
or the interests of the Certificateholders therein, then promptly upon its
becoming aware thereof the Master Servicer (or, if the Mortgage Loan Seller of
the affected Mortgage Loan is an Affiliate of the Master Servicer, subject to
Section 8.02, the Trustee) shall require that the Person (whether it is the
related Mortgage Loan Seller or, in the case of a Column Third Party Mortgage
Loan, Union Capital) that made the breached representation or warranty (in any
event, for purposes of this Section 2.03, the "Warranting Party"), not later
than 90 days (or such other period as is provided in the related Mortgage Loan
Purchase and Sale Agreement or, in the case of a Column Third Party Mortgage
Loan, the Union Capital Agreement, as applicable) from the receipt by such
Warranting Party of such notice, cure such Breach in all material respects or
repurchase the affected Mortgage Loan (as, if and to the extent required by the
related Mortgage Loan Purchase and Sale Agreement or, in the case of a Column
Third Party Mortgage Loan, the Union Capital Agreement, as applicable) at the
applicable Purchase Price (or, in the case of the repurchase of a Column Third
Party Mortgage Loan by Union Capital, at such other price as is provided for in
the Union Capital Agreement, with any shortfall between such price and the
applicable Purchase Price to be made up by Column as the related Mortgage Loan
Seller pursuant to the Column Mortgage Loan Purchase and Sale Agreement);
provided that if (i) such Breach does not relate to whether the affected
Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code, (ii) such Breach is capable of being cured but not within such
90-day (or other) period, (iii) such Warranting Party has commenced and is
diligently proceeding with the cure of such Breach within such 90-day (or other)
period, and (iv) such Warranting Party shall have delivered to the Trustee a
certification executed on behalf of such Warranting Party by an officer thereof
setting forth the reason that such Breach is not capable of being cured within
an initial 90-day (or other) period, specifying what actions such Warranting
Party is pursuing in connection with the cure thereof and stating that such
Warranting Party anticipates that such Breach will be cured within an additional
period not to exceed 90 more days (a copy of which certification shall be
delivered by the Trustee to the Master Servicer, the Special Servicer and the
Controlling Class Representative), then such Warranting Party shall have an
additional 90 days to complete such cure (or, if it fails to complete such cure,
to repurchase the affected Mortgage Loan); and provided, further, that, in lieu
of effecting any such repurchase (but, in any event, no later than such
repurchase would have to have been completed), such Warranting Party shall be
permitted, during the three-month period following the Startup Day for the REMIC
Pool that holds the affected Mortgage Loan (or during the two-year period
following such Startup Day if the affected Mortgage Loan is a "defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and
Treasury regulation section 1.860G-2(f)), to replace the affected Mortgage Loan
with one or more Qualifying Substitute Mortgage Loans and to pay a cash amount
equal to the applicable Substitution Shortfall Amount (or, in the case of the
replacement of a Column Third Party Mortgage Loan by Union Capital, to pay such
other cash amount as is provided for in the Union Capital Agreement, with any
shortfall between such other cash amount and the
-55-
<PAGE>
applicable Substitution Shortfall Amount to be made up by Column as the related
Mortgage Loan Seller pursuant to the Column Mortgage Loan Purchase and Sale
Agreement), subject to any other applicable terms and conditions of the related
Mortgage Loan Purchase and Sale Agreement or the Union Capital Agreement, as the
case may be, and this Agreement. If any substitution for a Deleted Mortgage Loan
is not completed in all respects by the end of the three-month (or, if
applicable, the two-year) period contemplated by the preceding sentence, the
Warranting Party (whether it is GECA, Column, GSMC or Union Capital) that
desired to effect such substitution shall be barred from doing so (and,
accordingly, will be limited to the cure/repurchase remedies contemplated
hereby), and no party hereto shall be liable thereto for any loss, liability or
expense resulting from the expiration of such period. If any Mortgage Loan is to
be repurchased or replaced as contemplated by this Section 2.03, the Master
Servicer (or, if the Mortgage Loan Seller of the affected Mortgage Loan is an
Affiliate of the Master Servicer, subject to Section 8.02, the Trustee) shall
designate the Collection Account as the account to which funds in the amount of
the applicable Purchase Price or Substitution Shortfall Amount (as the case may
be) are to be wired, and the Master Servicer shall promptly notify the Trustee
when such deposit is made. Any such repurchase or replacement of a Mortgage Loan
shall be on a whole loan, servicing released basis (subject to the rights of the
Designated Sub-Servicers to continue to sub-service the related Mortgage Loans
and the rights of the Designated Sub-Servicers and Archon to the Additional
Servicing Fee as set forth in the related Designated Sub-Servicer Agreement).
Notwithstanding the foregoing, if there exists in respect of any Column Third
Party Mortgage Loan a Breach on the part of Column under the Column Mortgage
Loan Purchase and Sale Agreement (other than a Breach of any of the
representations and warranties of Column relating to or affecting the status of
the affected Mortgage Loan as a "qualified mortgage" within the meaning of the
REMIC Provisions) and a Breach on the part of Union Capital under the Union
Capital Agreement, and such Breaches give rise to a cure or
repurchase/substitution obligation under both the Column Mortgage Loan Purchase
and Sale Agreement and the Union Capital Agreement, then the Master Servicer
shall request Column to effect a cure of Column's Breach or to repurchase or
replace the affected Mortgage Loan only if Union Capital does not do so within
Union Capital's applicable cure/repurchase/substitution period, and the
cure/repurchase/substitution period for Column will be deemed not to commence
until such request is so made of Column; provided that such
cure/repurchase/substitution period for Column shall in no event extend more
than 90 days from the end of the cure/repurchase/substitution period for Union
Capital. It is hereby acknowledged and agreed that if any Breach or Document
Defect arises out of a failure to deliver a Mortgage Note for any Mortgage Loan,
such Breach or Document Defect, as the case may be, shall be cured for purposes
of this Agreement if the related Warranting Party delivers a copy of such
Mortgage Note, together with a "lost note affidavit" certifying that the
original of such Mortgage Note has been lost.
If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased or replaced by
GECA, Column or Union Capital as contemplated by this Section 2.03, then, prior
to the subject repurchase or substitution, the Master Servicer shall use its
best efforts, subject to the terms of the related Mortgage Loans, to prepare
and, to the extent necessary and appropriate, have executed by the related
Borrower and record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loans in such Cross-Collateralized
Group that are to be repurchased or replaced, on the one hand, and the remaining
Mortgage Loans therein, on the other hand, such that those two groups of
Mortgage Loans are each secured only by the Mortgaged Properties identified in
the Mortgage Loan Schedule as directly corresponding thereto; provided that no
such termination shall be effected unless and until the Master Servicer and the
Trustee have received from the Depositor, the related Mortgage Loan Seller or,
in the case of a Column Third Party Mortgage Loan, Union Capital (i) an Opinion
of Counsel to the effect that such termination will not cause an Adverse REMIC
Event to occur with respect
-56-
<PAGE>
to any REMIC Pool or an Adverse Grantor Trust Event with respect to any Grantor
Trust Pool and (ii) written confirmation from each Rating Agency that such
termination will not cause an Adverse Rating Event to occur with respect to any
Class of Rated Certificates. To the extent necessary and appropriate, the
Trustee shall execute (or, subject to Section 3.10, provide the Master Servicer
with a limited power of attorney that enables the Master Servicer to execute)
the documentation referred to in the prior sentence; provided that the Trustee
shall not be liable for any misuse of any such power of attorney by the Master
Servicer. The Master Servicer shall advance all costs and expenses incurred by
the Trustee and the Master Servicer pursuant to this paragraph, and such
advances shall constitute and be reimbursable as Servicing Advances. Neither the
Master Servicer nor the Special Servicer shall be liable to any
Certificateholder or any other party hereto if the cross-collateralization of
any Cross-Collateralized Group cannot be terminated as contemplated by this
paragraph for any reason beyond the control of the Master Servicer or Special
Servicer, as the case may be.
Whenever one or more mortgage loans are substituted for a
Deleted Mortgage Loan as contemplated by this Section 2.03, the Master Servicer
(or, if the Mortgage Loan Seller of the Deleted Mortgage Loan is an Affiliate of
the Master Servicer, subject to Section 8.02, the Trustee) shall direct the
Warranting Party effecting the substitution to deliver the related Mortgage File
to the Trustee and to certify that such substitute mortgage loan satisfies or
such substitute mortgage loans satisfy, as the case may be, all of the
requirements of the definition of "Qualifying Substitute Mortgage Loan" and to
send such certification to the Trustee. No mortgage loan may be substituted for
a Deleted Mortgage Loan as contemplated by this Section 2.03 if the Mortgage
Loan to be replaced was itself a Replacement Mortgage Loan, in which case,
absent a cure of the relevant Breach or Document Defect, the affected Mortgage
Loan will be required to be repurchased as contemplated hereby. Monthly Payments
due with respect to each Replacement Mortgage Loan (if any) after the related
date of substitution, and Monthly Payments due with respect to each Deleted
Mortgage Loan (if any) after the Cut-off Date and on or prior to the related
date of substitution, shall be part of the Trust Fund. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) on or prior to the related
date of substitution, and Monthly Payments due with respect to each Deleted
Mortgage Loan (if any) after the related date of substitution, shall not be part
of the Trust Fund and are to be remitted by the Master Servicer to the
Warranting Party effecting the related substitution promptly following receipt.
If any Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 2.03, the Master Servicer (or, if the Mortgage Loan
Seller of the Deleted Mortgage Loan is an Affiliate of the Master Servicer, the
Trustee) shall direct the related Mortgage Loan Seller to amend the Mortgage
Loan Schedule to reflect the removal of any Deleted Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s); and,
upon its receipt of such amended Mortgage Loan Schedule, the Master Servicer
shall deliver or cause the delivery of such amended Mortgage Loan Schedule to
the other parties hereto. Upon any substitution of one or more Replacement
Mortgage Loans for a Deleted Mortgage Loan, such Replacement Mortgage Loan(s)
shall become part of the Trust Fund and be subject to the terms of this
Agreement in all respects. The reasonable "out-of-pocket" costs and expenses
incurred by the Master Servicer and/or the Trustee pursuant to this Section 2.03
(including, without limitation, reasonable attorney fees and expenses) shall
constitute Servicing Advances.
-57-
<PAGE>
In connection with any repurchase of the OfficeMax Mortgage
Loan or the Shadowbrook Apartments Mortgage Loan pursuant to or as contemplated
by this Section 2.03(a), the Trustee shall effect a "qualified liquidation" of
the related Loan REMIC in accordance with the REMIC Provisions. Any Replacement
Mortgage Loan substituted for either such Mortgage Loan pursuant to or as
contemplated by this Section 2.03(a) shall be an asset of the related Loan
REMIC.
(b) Upon receipt of an Officer's Certificate from the Master
Servicer to the effect that the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Mortgage Loan
repurchased or replaced by GECA, Column, GSMC or Union Capital as contemplated
by this Section 2.03 has been deposited in the Collection Account, and further,
if applicable, upon receipt of the Mortgage File for each Replacement Mortgage
Loan (if any) to be substituted for a Deleted Mortgage Loan, together with the
certification referred to in the penultimate paragraph of Section 2.03(a) from
the Warranting Party effecting the substitution, if any, the Trustee shall (i)
release or cause the release of the Mortgage File for the Deleted Mortgage Loan
to the Person effecting the repurchase/substitution or its designee and (ii)
execute and deliver such instruments of release, transfer and/or assignment, in
each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the Person effecting the repurchase/substitution or its
designee the ownership of the Deleted Mortgage Loan, and the Master Servicer
shall notify the applicable Borrowers of the transfers of the Deleted Mortgage
Loan(s) and any Replacement Mortgage Loan(s). In connection with any such
repurchase or substitution by GECA, Column, GSMC or Union Capital, each of the
Master Servicer and the Special Servicer shall deliver to the Person effecting
the repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of the Master Servicer or the Special Servicer,
as the case may be, with respect to the Deleted Mortgage Loan, in each case at
the expense of the Person effecting the repurchase/substitution. In connection
with any repurchase or replacement of a Column Third Party Mortgage Loan by
Column, the Trustee shall assign to Column all right, title and interest of the
Trustee in respect of such Mortgage Loan under the Union Capital Agreement. The
costs and expenses incurred by the Master Servicer, the Special Servicer and/or
the Trustee pursuant to this Section 2.03(b) shall be reimbursable to each of
them as Servicing Advances in respect of the affected Mortgage Loan.
(c) The Mortgage Loan Purchase and Sale Agreements and the
Union Capital Agreement provide the sole remedies available to the
Certificateholders, or the Trustee on their behalf, respecting any Breach. If
GECA, Column, GSMC and/or Union Capital defaults on its obligations to
repurchase or replace any Mortgage Loan as contemplated by this Section 2.03,
the Master Servicer shall promptly notify the Trustee and the Certificateholders
(or, if the Mortgage Loan Seller of the affected Mortgage Loan is an Affiliate
of the Master Servicer, the Trustee shall notify the Certificateholders).
Thereafter, the Master Servicer (or, if the Mortgage Loan Seller of the affected
Mortgage Loan is an Affiliate of the Master Servicer, subject to Section 8.02,
the Trustee) shall take such actions on behalf of the Trust with respect to the
enforcement of such repurchase/substitution obligations, including the
institution and prosecution of appropriate legal proceedings, as the Master
Servicer (or, if applicable and subject to Section 8.02, the Trustee) shall
determine are in the best interests of the Certificateholders (taken as a
collective whole). Any and all reasonable out-of-pocket expenses incurred by the
Master Servicer (or, if applicable, the Trustee) (including, without limitation,
reasonable attorney fees and expenses) with respect to the foregoing shall
constitute Servicing Advances in respect of the affected Mortgage Loan.
-58-
<PAGE>
SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The Depositor's execution and delivery of, performance
under, and compliance with this Agreement, will not violate the
Depositor's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or by which it is
bound, which breach or default, in the good faith and reasonable
judgment of the Trustee, is likely to affect materially and adversely
either the ability of the Trustee to perform its obligations under
this Agreement or the financial condition of the Trustee.
(iii) The Depositor has the full power and authority to own
its properties, to conduct its business as presently conducted by it
and to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Depositor, enforceable against the
Depositor in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution
and delivery of, performance under and compliance with this Agreement
will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Depositor's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the
Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) No consent, approval, authorization or order of any state
or federal court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated herein,
except (A) for those consents, approvals, authorizations or orders
that previously have been obtained, (B) such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase
and sale of the Certificates by the Underwriters, and (C) any
recordation of the assignments of Mortgage Loan documents to the
Trustee pursuant to Section 2.01(e), which has not yet been completed.
(vii) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any
such approvals as have been obtained, and is not subject to any bulk
transfer or similar law in effect in any applicable jurisdiction.
-59-
<PAGE>
(viii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor that, if
determined adversely to the Depositor, would prohibit the Depositor
from entering into this Agreement or that, in the Depositor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(ix) Assuming the accuracy of the representations and
warranties of the Mortgage Loan Sellers set forth in their respective
Mortgage Loan Purchase and Sale Agreements, immediately prior to the
transfer of the Original Mortgage Loans to the Trustee for the benefit
of the Certificateholders pursuant to this Agreement, the Depositor
had good and marketable title to, and was the sole owner and holder
of, each such Mortgage Loan, and the Depositor has full right and
authority to sell, assign and transfer the Original Mortgage Loans.
(x) The Depositor is transferring the Original Mortgage Loans
to the Trustee for the benefit of the Certificateholders free and
clear of any and all liens, pledges, charges and security interests
created by or through the Depositor.
(b) The representations and warranties of the Depositor set
forth in Section 2.04(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
SECTION 2.05. Representations and Warranties of the Master
Servicer.
(a) The Master Servicer hereby represents and warrants to each
of the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Master Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate
the Master Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or by
which it is bound, which breach or default, in the good faith and
reasonable judgment of the Master Servicer, is likely to affect
materially and adversely either the ability of the Master Servicer to
perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
-60-
<PAGE>
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Master Servicer, enforceable
against the Master Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Master Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with this
Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of
any federal, state or local governmental or regulatory authority,
which violation, in the Master Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No consent, approval, authorization or order of any state
or federal court or governmental agency or body is required for the
consummation by the Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders
that previously have been obtained.
(vii) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer that, if
determined adversely to the Master Servicer, would prohibit the Master
Servicer from entering into this Agreement or that, in the Master
Servicer's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Master Servicer to
perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(viii) Each officer, director or employee of the Master
Servicer with responsibilities concerning the servicing and
administration of any Mortgage Loan is covered by errors and omissions
insurance in the amounts and with the coverage required by Section
3.07(c).
(ix) There is no event, condition or circumstance in existence
that constitutes (or, with notice or lapse of time, or both, would
constitute) an Event of Default on the part of the Master Servicer.
(x) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect
as of the Closing Date with respect to the Mortgage Loans, and each
such Sub-Servicing Agreement complies with the requirements of Section
3.22(a) in all material respects.
(xi) To the best knowledge of the Master Servicer (which
knowledge may be based upon information obtained from vendors who have
responded to the Master Servicer's supplier inquiries and/or from
information obtained by the Master Servicer from sources which the
Master Servicer reasonably believes are reliable), by August 31, 1999
any custom-made software or hardware designed or purchased or licensed
by the Master Servicer, which the Master Servicer has identified as
being mission-critical to its business for purposes of its operations
and for purposes of compiling,
-61-
<PAGE>
reporting or generating data required by this Agreement, will be
capable of accurately performing calculations or other processing with
respect to dates after December 31, 1999 as a result of the changing
of the date from 1999 to 2000, including leap year calculations, when
used for the purpose for which it was intended, assuming that all
other products, including other software or hardware, when used in
combination with such software or hardware designed or purchased or
licensed by the Master Servicer properly exchange date data.
(b) The representations and warranties of the Master Servicer
set forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.05(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.05(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.06. Representations and Warranties of the Special
Servicer.
(a) The Special Servicer hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Special Servicer is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and the Special Servicer is in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement.
(ii) The Special Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate
the Special Servicer's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other material instrument to which it is a party
or by which it is bound, which breach or default, in the good faith
and reasonable judgment of the Special Servicer, is likely to affect
materially and adversely either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial
condition of the Special Servicer.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions involving the Special
Servicer contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of
-62-
<PAGE>
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding
in equity or at law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the Special Servicer to perform its obligations
under this Agreement or the financial condition of the Special
Servicer.
(vi) No consent, approval, authorization or order of any state
or federal court or governmental agency or body is required for the
consummation by the Special Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders
that previously have been obtained.
(vii) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer that, if
determined adversely to the Special Servicer, would prohibit the
Special Servicer from entering into this Agreement or that, in the
Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Special
Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer.
(viii) Each officer, director or employee of the Special
Servicer with responsibilities concerning the servicing and
administration of any Specially Serviced Mortgage Loan or REO Property
is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c).
(ix) There is no event, condition or circumstance in existence
that constitutes (or, with notice or lapse of time, or both, would
constitute) an Event of Default on the part of the Special Servicer.
(x) The Special Servicer is currently modifying its "mission
critical" computer systems and expects that, by August 31, 1999, it
will be Year 2000 Ready such that its operations and its ability to
perform its obligations under this Agreement will not be materially
and adversely affected by the occurrence of calendar year 2000. The
Special Servicer is also assessing whether its key vendors and
subcontractors will be Year 2000 Ready by such date.
(b) The representations and warranties of the Special Servicer
set forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
-63-
<PAGE>
(c) Any successor Special Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.06(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.06(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.07. Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to, and
covenants with, each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is duly organized and validly existing as a
national banking association under the laws of the United States and
is, shall be or, if necessary, shall appoint a co-trustee that is, in
compliance with the laws of each State in which any Mortgaged Property
is located to the extent necessary to ensure the enforceability of
each Mortgage Loan and to perform its obligations under this
Agreement.
(ii) The Trustee's execution and delivery of, performance
under and compliance with this Agreement, will not violate the
Trustee's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in a material breach of, any material
agreement or other material instrument to which it is a party or by
which it is bound, which breach or default, in the good faith and
reasonable judgment of the Trustee is likely to affect materially and
adversely either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee.
(iii) The Trustee has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Trustee, enforceable against the
Trustee in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the
rights of creditors of banks, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding
in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will
not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation,
in the Trustee's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Trustee to
perform its obligations under this Agreement or the financial
condition of the Trustee.
-64-
<PAGE>
(vi) No consent, approval, authorization or order of any state
or federal court or governmental agency or body is required for the
consummation by the Trustee of the transactions contemplated herein,
except for those consents, approvals, authorizations or orders that
previously have been obtained.
(vii) No litigation is pending or, to the best of the
Trustee's knowledge, threatened against the Trustee that, if
determined adversely to the Trustee, would prohibit the Trustee from
entering into this Agreement or that, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect
either the ability of the Trustee to perform its obligations under
this Agreement or the financial condition of the Trustee.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(ix) The Trustee is currently modifying its computer systems
and expects that, by December 31, 1999, it will be Year 2000 Ready
such that its operations and its ability to perform its obligations
under this Agreement will not be materially and adversely affected by
the occurrence of calendar year 2000. The Trustee is also assessing
whether its key vendors and subcontractors will be Year 2000 Ready by
such date.
(b) The representations and warranties of the Trustee set
forth in Section 2.07(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of any breach of any of the foregoing representations, warranties
and covenants, the party discovering such breach shall give prompt written
notice thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 2.07(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.07(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.08. Representations and Warranties of the REMIC
Administrator.
(a) The REMIC Administrator hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The REMIC Administrator is duly organized and validly
existing as a national banking association under the laws of the
United States.
(ii) The REMIC Administrator's execution and delivery of,
performance under and compliance with this Agreement, will not violate
the REMIC Administrator's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in a material breach of,
any material agreement or other material instrument to which it is a
party or by which it is bound.
-65-
<PAGE>
(iii) The REMIC Administrator has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the REMIC Administrator, enforceable
against the REMIC Administrator in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally and the rights of creditors of banks, and (B) general
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The REMIC Administrator is not in violation of, and its
execution and delivery of, performance under and compliance with this
Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of
any federal, state or local governmental or regulatory authority,
which violation, in the REMIC Administrator's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the REMIC Administrator to perform its
obligations under this Agreement or the financial condition of the
REMIC Administrator.
(vi) No consent, approval, authorization or order of any state
or federal court or governmental agency or body is required for the
consummation by the REMIC Administrator of the transactions
contemplated herein, except for those consents, approvals,
authorizations or orders that previously have been obtained.
(vii) No litigation is pending or, to the best of the REMIC
Administrator's knowledge, threatened against the REMIC Administrator
that, if determined adversely to the REMIC Administrator, would
prohibit the REMIC Administrator from entering into this Agreement or
that, in the REMIC Administrator's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
REMIC Administrator to perform its obligations under this Agreement or
the financial condition of the REMIC Administrator.
(viii) There is no event, condition or circumstance in
existence that constitutes (or, with notice or lapse of time, or both,
would constitute) an Event of Default on the part of the REMIC
Administrator.
(ix) The REMIC Administrator is currently modifying its
computer systems and expects that, by December 31, 1999, it will be
Year 2000 Ready such that its operations and its ability to perform
its obligations under this Agreement will not be materially and
adversely affected by the occurrence of calendar year 2000. The REMIC
Administrator is also assessing whether its key vendors and
subcontractors will be Year 2000 Ready by such date.
-66-
<PAGE>
(b) The representations and warranties of the REMIC
Administrator set forth in Section 2.08(a) shall survive the execution and
delivery of this Agreement and shall inure to the benefit of the Persons for
whose benefit they were made for so long as the Trust remains in existence. Upon
discovery by any party hereto of any breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice thereof to the other parties hereto.
(c) Any successor REMIC Administrator shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.08(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.09. Designation of the Certificates.
(a) The Certificates shall consist of twenty (20) Classes
hereby designated as the "Class S Certificates", the "Class A-1A Certificates",
the "Class A-1B Certificates", the "Class A-2 Certificates", the "Class A-3
Certificates", the "Class A-4 Certificates", the "Class B-1 Certificates", the
"Class B-2 Certificates", the "Class B-3 Certificates", the "Class B-4
Certificates", the "Class B-5 Certificates", the "Class B-6 Certificates", the
"Class B-7 Certificates, the "Class B-8 Certificates", the "Class C
Certificates", the "Class D-1 Certificates", the "Class D-2 Certificates", the
"Class R-I Certificates", the "Class R-II Certificates" and the "Class R-III
Certificates", respectively.
(b) The Class A-1A, Class A-1B, Class A-2, Class A-3 and Class
A-4 Certificates are collectively designated as the "Class A Certificates".
(c) The Class B-1, Class B-2, Class B-3, Class B-4, Class B-5,
Class B-6, Class B-7 and Class B-8 Certificates are collectively designated as
the "Class B Certificates".
(d) The Class S, Class A-1A and Class A-1B Certificates are
collectively designated as the "Senior Certificates".
(e) The Class A-2, Class A-3, Class A-4, Class B, Class C,
Class R-I, Class R-II and Class R-III Certificates are collectively designated
as the "Subordinated Certificates".
(f) The Class A, Class B and Class C Certificates are
collectively designated as the "Principal Balance Certificates".
(g) The Class D-1 and Class D-2 Certificates are collectively
designated as the "Class D Certificates".
(h) The Class S Certificates are also designated as the
"Interest Only Certificates".
(i) The Interest Only Certificates and the Principal Balance
Certificates are collectively designated as the "Regular Interest Certificates".
-67-
<PAGE>
(j) The Class R-I, Class R-II and Class R-III Certificates are
collectively designated as the "Residual Interest Certificates".
(k) The Regular Interest Certificates and the Class R-III
Certificates are collectively designated as the "REMIC III Certificates".
SECTION 2.10. Creation of REMIC I; Issuance of REMIC I
Regular Interests and REMIC I Residual
Interest; Certain Matters Involving REMIC I
and the Loan REMICs.
(a) It is the intention of the parties hereto that the
following segregated pool of assets constitute a REMIC for federal income tax
purposes and, further, that such segregated pool of assets be designated as
"REMIC I": (i) the Mortgage Loans that are from time to time subject to this
Agreement (other than the OfficeMax Mortgage Loan, the Shadowbrook Apartments
Mortgage Loan and any Replacement Mortgage Loan(s) in respect thereof) and all
payments under and proceeds of such Mortgage Loans received after the Closing
Date or, in the case of any such Mortgage Loan that is a Replacement Mortgage
Loan, after the related date of substitution (other than scheduled payments of
interest and principal due on or before the Cut-off Date or, in the case of any
such Mortgage Loan that is Replacement Mortgage Loan, on or before the related
date of substitution and other than Additional Interest collected in respect of
the ARD Loans after their respective Anticipated Repayment Dates), together with
all documents included in the related Mortgage Files and Servicing Files and any
related Additional Collateral; (ii) any REO Property acquired in respect of any
Mortgage Loan (other than the OfficeMax Mortgage Loan, the Shadowbrook
Apartments Mortgage Loan and any Replacement Mortgage Loan(s) in respect
thereof); (iii) such funds and assets as from time to time are deposited in the
Collection Account, the Distribution Account, the Interest Reserve Account and,
if established, the REO Account (exclusive of any amounts that constitute
Additional Interest collected in respect of the ARD Loans after their respective
Anticipated Repayment Dates); (iv) the rights of the Depositor under Sections 2,
3(a), 3(b), 3(d), 4 and 12 (and, to the extent related to the foregoing and
applicable, under Sections 9, 10, 13, 14, 15, 16, 17 and 19) of each Mortgage
Loan Purchase and Sale Agreement; (v) the rights of the Trustee and the
Certificateholders as third party beneficiaries under each Mortgage Loan
Purchase and Sale Agreement (as and to the extent provided under Section 11
thereof), (vi) the rights of the Depositor under the Union Capital Agreement
(insofar as such rights were assigned thereto under the Column Mortgage Loan
Purchase and Sale Agreement) and (vii) the Loan REMIC Regular Interests and all
payments under and proceeds of such Loan REMIC Regular Interests received after
the Closing Date; provided that REMIC I will not include the Additional
Servicing Fees (which, in the case of the Shadowbrook Apartments Mortgage Loan,
shall be deemed to be stripped off the Shadowbrook Apartments REMIC Regular
Interest). The Closing Date is hereby designated as the "Startup Day" of REMIC I
within the meaning of Section 860G(a)(9) of the Code.
A Loan REMIC Declaration has been made with respect to each of
the OfficeMax Mortgage Loan and the Shadowbrook Apartments Mortgage Loan. In the
case of each such Mortgage Loan, the related Loan REMIC will include such
Original Mortgage Loan, any Replacement Mortgage Loan substituted therefor and
any REO Property acquired in respect of such Original Mortgage Loan or any such
Replacement Mortgage Loan.
-68-
<PAGE>
(b) Concurrently with the assignment of the Original Mortgage
Loans (or, in the case of each of the OfficeMax Mortgage Loan and the
Shadowbrook Apartments Mortgage Loan, the related Loan REMIC Interests) and
certain related assets to the Trustee pursuant to Section 2.01(b) and in
exchange therefor, the REMIC I Regular Interests and the REMIC I Residual
Interest shall be issued. A separate REMIC I Regular Interest shall be issued
with respect to each Original Mortgage Loan and Loan REMIC Regular Interest that
is an asset of REMIC I. For purposes of this Agreement, each REMIC I Regular
Interest shall relate to the Original Mortgage Loan in respect of which it was
issued (or, if applicable, to the Loan REMIC Regular Interest in respect of
which it was issued and also the corresponding Original Mortgage Loan), to each
Replacement Mortgage Loan (if any) substituted for such Original Mortgage Loan
(including the OfficeMax Mortgage Loan and the Shadowbrook Apartments Mortgage
Loan), and to each REO Mortgage Loan deemed outstanding with respect to an REO
Property (if any) acquired in respect of any such Original Mortgage Loan
(including the OfficeMax Mortgage Loan and the Shadowbrook Apartments Mortgage
Loan) or any such Replacement Mortgage Loan. None of the REMIC I Regular
Interests shall be certificated. The REMIC I Residual Interest, together with
the REMIC I Regular Interests, shall constitute the entire beneficial ownership
of REMIC I.
(c) The REMIC I Regular Interests shall constitute the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the REMIC I Residual Interest shall constitute the sole "residual interest"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC I. The
OfficeMax REMIC Regular Interest shall constitute the "regular interest" (within
the meaning of Section 860G(a)(1) of the Code), and the OfficeMax REMIC Residual
Interest shall constitute the sole "residual interest" (within the meaning of
Section 860G(a)(2) of the Code), in the OfficeMax REMIC. The Shadowbrook
Apartments REMIC Regular Interest shall constitute the "regular interest"
(within the meaning of Section 860G(a)(1) of the Code), and the Shadowbrook
Apartments REMIC Residual Interest shall constitute the sole "residual interest"
(within the meaning of Section 860G(a)(2) of the Code), in the Shadowbrook
Apartments REMIC. None of the parties hereto, to the extent it is within the
control thereof, shall create or permit the creation of any other "interests" in
REMIC I or either Loan REMIC (within the meaning of Treasury regulation section
1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall be
the identification number for the related Original Mortgage Loan set forth in
the Mortgage Loan Schedule.
(e) Each REMIC I Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall equal the Cut-off Date Balance of the
related Original Mortgage Loan (as specified in the Mortgage Loan Schedule). On
each Distribution Date, the Uncertificated Principal Balance of each REMIC I
Regular Interest shall be permanently reduced by any distributions of principal
deemed made in respect of such REMIC I Regular Interest on such Distribution
Date pursuant to Section 4.01(j) and, further, by any Principal Balance
Reduction made with respect to such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.04(c). Except as provided in the
preceding sentence, the Uncertificated Principal Balance of each REMIC I Regular
Interest shall not otherwise be increased or reduced. Deemed distributions to
REMIC II in reimbursement of Unreimbursed Principal Balance Reductions in
respect of a REMIC I Regular Interest shall not constitute deemed distributions
of principal and shall not result in any reduction of the Uncertificated
Principal Balance of such REMIC I Regular Interest.
-69-
<PAGE>
(f) Each REMIC I Regular Interest shall have a REMIC I
Remittance Rate. The REMIC I Remittance Rate in respect of any particular REMIC
I Regular Interest for any Interest Accrual Period shall be calculated as
follows: (i) if, as of the Closing Date, the related Original Mortgage Loan
bears interest calculated on a 30/360 Basis, then the REMIC I Remittance Rate in
respect of the subject REMIC I Regular Interest for any Interest Accrual Period
shall equal the Mortgage Rate in effect for the related Original Mortgage Loan
as of the Closing Date, minus 5.12 basis points (0.0512%) (it being understood
that none of the Additional Servicing Fee Mortgage Loans is a 30/360 Mortgage
Loan); and (ii) if, as of the Closing Date, the related Original Mortgage Loan
bears interest calculated on an Actual/360 Basis, then the REMIC I Remittance
Rate in respect of the subject REMIC I Regular Interest for any Interest Accrual
Period shall equal (A) a fraction (expressed as a percentage), the numerator of
which is (subject to adjustment as provided below) the product of twelve times
the aggregate amount of interest that would accrue during such Interest Accrual
Period on the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date if such interest
were to be calculated on an Actual/360 Basis and were to accrue at the Mortgage
Rate in effect for the related Original Mortgage Loan as of the Closing Date,
and the denominator of which is the Uncertificated Principal Balance of such
REMIC I Regular Interest outstanding immediately prior to the related
Distribution Date, minus (b) 5.12 basis points (0.0512%) (or, if the related
Original Mortgage Loan is an Additional Servicing Fee Mortgage Loan, the sum of
5.12 basis points (0.0512%) and the related Additional Servicing Fee Rate);
provided that, in the case of a REMIC I Regular Interest that corresponds to an
Interest Reserve Loan, if the subject Interest Accrual Period occurs during
January of any year or during December of any year that does not immediately
precede a leap year, the amount of the numerator for the fraction described in
clause (ii)(A) above shall be reduced by the related Interest Reserve Amount
that is to be transferred from the Distribution Account to the Interest Reserve
Account in the following calendar month in accordance with Section 3.04(c) and,
if the subject Interest Accrual Period occurs during February of any year, the
amount of the numerator for the fraction described in clause (ii)(A) above shall
be increased by any related Interest Reserve Amount(s) to be transferred from
the Interest Reserve Account to the Distribution Account pursuant to Section
3.05(c) for distribution on the Distribution Date in March of such year; and
provided, further, that, in the case of a REMIC I Regular Interest that
corresponds to a Mortgage Loan with a Stated Maturity Date that occurs after the
Determination Date in the relevant calendar month, the REMIC I Remittance Rate
in respect of such REMIC I Regular Interest for the Interest Accrual Period in
which such Stated Maturity Date occurs shall equal the product of (s) the REMIC
I Remittance Rate that would otherwise have been in effect for such REMIC I
Regular Interest for such Interest Accrual Period without regard to this
proviso, multiplied by (t) a fraction (expressed as a percentage), the numerator
of which shall be the number of days in such Interest Accrual Period up to but
not including such Stated Maturity Date, and the denominator of which shall be
30.
(g) Each REMIC I Regular Interest shall bear interest. The
Uncertificated Accrued Interest in respect of each REMIC I Regular Interest
Regular Interest shall commence accruing on the Cutoff Date and, during each
Interest Accrual Period, shall accrue at the applicable REMIC I Remittance Rate
on the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date. The
Uncertificated Accrued Interest in respect of each REMIC I Regular Interest
shall be calculated on a 30/360 Basis. Notwithstanding the foregoing, the
portion of the Uncertificated Accrued Interest in respect of any REMIC I Regular
Interest for any Interest Accrual Period that may be deemed distributable to
REMIC II with respect to such REMIC I Regular Interest pursuant to Section
4.01(j) shall not exceed the Uncertificated Distributable Interest in respect of
such REMIC I Regular Interest for the related Distribution Date.
-70-
<PAGE>
(h) Solely for purposes of satisfying Treasury regulation
section 1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I
Regular Interest shall be the first Distribution Date that follows the Stated
Maturity Date for the related Original Mortgage Loan. The Latest Possible
Maturity Date for each Loan REMIC Regular Interest shall be the Stated Maturity
Date for the related Original Mortgage Loan.
(i) The REMIC I Residual Interest and the Loan REMIC Residual
Interests shall not have principal balances and shall not bear interest.
SECTION 2.11. Conveyance of REMIC I Regular Interests;
Acceptance of REMIC I Regular Interests by
Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all the right, title and interest of the Depositor in and to the REMIC
I Regular Interests to the Trustee for the benefit of the Holders of the Class
R-II and REMIC III Certificates. The Trustee acknowledges the assignment to it
of the REMIC I Regular Interests and declares that it holds and will hold the
same in trust for the exclusive use and benefit of all present and future
Holders of the Class R-II and REMIC III Certificates.
SECTION 2.12. Creation of REMIC II; Issuance of REMIC II
Regular Interests and Class R-II Certificates;
Certain Matters Involving REMIC II.
(a) It is the intention of the parties hereto that the
segregated pool of assets consisting of the REMIC I Regular Interests constitute
a REMIC for federal income tax purposes and, further, that such segregated pool
of assets be designated as "REMIC II". The Closing Date is hereby designated as
the "Startup Day" of REMIC II within the meaning of Section 860G(a)(9) of the
Code.
(b) Concurrently with the assignment of the REMIC I Regular
Interests to the Trustee pursuant to Section 2.11 and in exchange therefor, the
REMIC II Regular Interests shall be issued, and the Trustee, pursuant to the
written request of the Depositor executed by an officer of the Depositor, shall
execute, authenticate and deliver to or upon the order of the Depositor, the
Class R-II Certificates in authorized denominations. There shall be fourteen
(14) separate REMIC II Regular Interests, and none of the REMIC II Regular
Interests shall be certificated. The interests evidenced by the Class R-II
Certificates, together with the REMIC II Regular Interests, shall constitute the
entire beneficial ownership of REMIC II.
(c) The REMIC II Regular Interests shall constitute the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the Class R-II Certificates shall constitute the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
None of the parties hereto, to the extent it is within the control thereof,
shall create or permit the creation of any other "interests" in REMIC II (within
the meaning of Treasury regulation section 1.860D-1(b)(1)).
(d) The REMIC II Regular Interests are hereby designated as
"REMIC II Regular Interest A-1A", "REMIC II Regular Interest A-1B", "REMIC II
Regular Interest A-2", "REMIC II Regular Interest A-3", "REMIC II Regular
Interest A-4", "REMIC II Regular Interest B-1", "REMIC II Regular Interest B-
2", "REMIC II Regular Interest B-3", "REMIC II Regular Interest B-4", "REMIC II
Regular Interest B-5",
-71-
<PAGE>
"REMIC II Regular Interest B-6", "REMIC II Regular Interest B-7", "REMIC II
Regular Interest B-8" and "REMIC II Regular Interest C", respectively.
(e) Each REMIC II Regular Interest shall have an
Uncertificated Principal Balance. The following table sets forth for each REMIC
II Regular Interest the initial Uncertificated Principal Balance thereof and the
calendar month in which the Latest Possible Maturity Date thereof occurs
(calculated based on the Maturity Assumptions):
Designation of Initial Uncertificated Latest Possible
REMIC II Regular Interest Principal Balance Maturity Date(1)
------------------------- ----------------- ----------------
A-1A $241,610,000 July 2008
A-1B $890,203,000 June 2009
A-2 $69,769,000 June 2009
A-3 $81,398,000 June 2009
A-4 $19,380,000 June 2009
B-1 $58,141,000 June 2009
B-2 $23,257,000 June 2009
B-3 $38,761,000 June 2009
B-4 $31,008,000 April 2010
B-5 $15,505,000 February 2012
B-6 $19,380,000 June 2013
B-7 $15,504,000 August 2013
B-8 $15,505,000 September 2015
C $31,008,606 June 2024
------------------
(1) Solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC
II Regular Interest will be the Distribution Date in the calendar month
specified in the foregoing table with respect to such REMIC II Regular
Interest.
On each Distribution Date, the Uncertificated Principal
Balance of each REMIC II Regular Interest shall be permanently reduced by any
distributions of principal deemed made in respect of such REMIC II Regular
Interest on such Distribution Date pursuant to Section 4.01(i) and, further, by
any Principal Balance Reduction made with respect to such REMIC II Regular
Interest on such Distribution Date pursuant to Section 4.04(b). Except as
provided in the preceding sentence, the Uncertificated Principal Balance of each
REMIC II Regular Interest shall not otherwise be increased or decreased. Deemed
distributions to REMIC III in reimbursement of Unreimbursed Principal Balance
Reductions in respect of a REMIC II Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interest.
(f) Each REMIC II Regular Interest shall have a REMIC II
Remittance Rate that, with respect to any Interest Accrual Period, shall equal
the weighted average, expressed as a percentage and rounded to eight decimal
places, of the respective REMIC I Remittance Rates in effect for all the REMIC I
Regular Interests for such Interest Accrual Period, weighted on the basis of the
respective Uncertificated
-72-
<PAGE>
Principal Balances of such REMIC I Regular Interests outstanding immediately
prior to the related Distribution Date.
(g) Each REMIC II Regular Interest shall bear interest. The
Uncertificated Accrued Interest in respect of each REMIC II Regular Interest
shall commence accruing on the Cut-off Date and, during each Interest Accrual
Period, shall accrue at the applicable REMIC II Remittance Rate on the
Uncertificated Principal Balance of such REMIC II Regular Interest outstanding
immediately prior to the related Distribution Date. The Uncertificated Accrued
Interest in respect of each REMIC II Regular Interest shall be calculated on a
30/360 Basis. Notwithstanding the foregoing, the portion of the Uncertificated
Accrued Interest in respect of any REMIC II Regular Interest for any Interest
Accrual Period that may be deemed distributable to REMIC III with respect to
such REMIC II Regular Interest pursuant to Section 4.01(i) shall not exceed the
Uncertificated Distributable Interest in respect of such REMIC II Regular
Interest for the related Distribution Date.
(h) The Class R-II Certificates shall not have principal
balances and shall not bear interest.
SECTION 2.13. Conveyance of REMIC II Regular Interests;
Acceptance of REMIC II Regular Interests by
Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all the right, title and interest of the Depositor in and to the REMIC
II Regular Interests to the Trustee for the benefit of the Holders of the REMIC
III Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
SECTION 2.14. Creation of REMIC III; Issuance of REMIC III
Certificates; Certain Matters Involving
REMIC III.
(a) It is the intention of the parties hereto that the
segregated pool of assets consisting of the REMIC II Regular Interests
constitute a REMIC for federal income tax purposes and, further, that such
segregated pool of assets be designated as "REMIC III". The Closing Date is
hereby designated as the "Startup Day" of REMIC III within the meaning of
Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC II Regular
Interests to the Trustee pursuant to Section 2.13 and in exchange therefor, the
Trustee shall execute, authenticate and deliver to or upon the order of the
Depositor, the REMIC III Certificates in authorized denominations evidencing the
entire beneficial ownership of REMIC III. The Class S Certificates shall
actually represent eleven (11) separate beneficial ownership interests in REMIC
III.
(c) The respective Classes of the Principal Balance
Certificates, together with the Class S REMIC III Regular Interests represented
by the Class S Certificates, shall constitute the "regular interests" (within
the meaning of Section 860G(a)(1) of the Code), and the Class R-III Certificates
shall constitute the sole class of "residual interests" (within the meaning of
Section 860(G)(a)(2) of the Code), in REMIC III. None of the parties hereto, to
the extent it is within the control thereof, shall create or permit the creation
of any other "interests" in REMIC III (within the meaning of Treasury regulation
section 1.860D-1(b)(1)).
-73-
<PAGE>
(d) The Class S REMIC III Regular Interests are hereby
designated as "REMIC III Regular Interest S-A-1A", "REMIC III Regular Interest
S-A-1B", "REMIC III Regular Interest S-A-2", "REMIC III Regular Interest S-A-3",
"REMIC III Regular Interest S-B-3", "REMIC III Regular Interest S- B-4", "REMIC
III Regular Interest S-B-5", "REMIC III Regular Interest S-B-6", "REMIC III
Regular Interest S-B-7", "REMIC III Regular Interest S-B-8" and "REMIC III
Regular Interest S-C", respectively.
The Class S REMIC III Regular Interests (and, accordingly, the
Class S Certificates) shall not have principal balances. For purposes of
accruing interest, however, each Class S REMIC III Regular Interest shall have a
Component Notional Amount equal to the Uncertificated Principal Balance of such
Class S REMIC III Regular Interest's Corresponding REMIC II Regular Interest
outstanding from time to time. Notwithstanding the foregoing, however, for
reporting purposes, the Class S Certificates shall be deemed to have a Class
Notional Amount that is, as of any date of determination, equal to the aggregate
of the then Uncertificated Principal Balances of all the REMIC II Regular
Interests.
Each Class S REMIC III Regular Interest shall have a Class S
Strip Rate that, with respect to any Interest Accrual Period, shall equal the
excess, if any, of (i) the REMIC II Remittance Rate for such Interest Accrual
Period in respect of such Class S REMIC III Regular Interest's Corresponding
REMIC II Regular Interest, over (ii) the Pass-Through Rate for such Interest
Accrual Period in respect of the Class of Principal Balance Certificates with
the same Corresponding REMIC II Regular Interest. Notwithstanding the foregoing,
however, for reporting purposes, the Class S Certificates shall be deemed to
have a Pass- Through Rate that, with respect to any Interest Accrual Period, is
equal to the quotient, expressed as a percentage and rounded to eight decimal
places, obtained by dividing (i) 12 times the aggregate amount of Accrued
Component Interest in respect of all the Class S REMIC III Regular Interests for
such Interest Accrual Period, by (ii) the aggregate of the Uncertificated
Principal Balances of all the REMIC II Regular Interests outstanding immediately
prior to the related Distribution Date.
Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each Class S REMIC
III Regular Interest shall be the same as the "latest possible maturity date"
for such Class S REMIC III Regular Interest's Corresponding REMIC II Regular
Interest.
(e) Each Class of Principal Balance Certificates shall have a
Class Principal Balance and a Pass-Through Rate.
-74-
<PAGE>
The following table sets forth for each Class of Principal
Balance Certificates the initial Class Principal Balance thereof, the
Pass-Through Rate thereof for the initial Interest Accrual Period and the
calendar month in which the Latest Possible Maturity Date thereof occurs
(calculated based on the Maturity Assumptions):
Class Initial Class Initial Latest Possible
Designation Principal Balance Pass-Through Rate Maturity Date(1)
----------- ----------------- ----------------- ----------------
Class A-1A $241,610,000 6.8800% per annum July 2008
Class A-1B $890,203,000 7.3000% per annum June 2009
Class A-2 $69,769,000 7.4500% per annum June 2009
Class A-3 $81,398,000 7.6067% per annum June 2009
Class A-4 $19,380,000 7.6067% per annum June 2009
Class B-1 $58,141,000 7.6067% per annum June 2009
Class B-2 $23,257,000 7.6067% per annum June 2009
Class B-3 $38,761,000 6.1000% per annum June 2009
Class B-4 $31,008,000 6.1000% per annum April 2010
Class B-5 $15,505,000 6.1100% per annum February 2012
Class B-6 $19,380,000 6.1100% per annum June 2013
Class B-7 $15,504,000 6.1100% per annum August 2013
Class B-8 $15,505,000 6.1100% per annum September 2015
Class C $31,008,606 6.1100% per annum June 2024
-------------------
(1) Solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class
of Principal Balance Certificates will be the Distribution Date in the
calendar month specified in the foregoing table with respect to such
Class of Principal Balance Certificates.
The respective Pass-Through Rates applicable to the Class
A-1A, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class B-8 and Class
C Certificates shall, in the case of each such Class of Certificates, for each
Interest Accrual Period subsequent to the initial Interest Accrual Period,
remain fixed at the initial Pass-Through Rate set forth in the table above with
respect to such Class of Certificates. The Pass-Through Rates applicable to the
Class A-1B, Class A-2 and Class A-3 Certificates are subject to change and, in
the case of each such Class, for each Interest Accrual Period subsequent to the
initial Interest Accrual Period, shall equal the lesser of (i) the initial
Pass-Through Rate set forth in the table above with respect to such Class of
Certificates (or, in the case of the Class A-3 Certificates, 7.6400% per annum)
and (ii) the REMIC II Remittance Rate in effect during such Interest Accrual
Period in respect of the Corresponding REMIC II Regular Interest for such Class
of Certificates. The Pass-Through Rates applicable to the Class A-4, Class B-1
and Class B-2 Certificates are variable and, in the case of each such Class, for
each Interest Accrual Period subsequent to the initial Interest Accrual Period,
shall equal the REMIC II Remittance Rate in effect during such Interest Accrual
Period in respect of the Corresponding REMIC II Regular Interest for such Class
of Certificates.
-75-
<PAGE>
On each Distribution Date, the Class Principal Balance of each
Class of Principal Balance Certificates shall be permanently reduced by any
distributions of principal made in respect of such Class of Certificates on such
Distribution Date pursuant to Section 4.01(a) and, further, by any Principal
Balance Reduction made with respect to such Class of Certificates on such
Distribution Date pursuant to Section 4.04(a). Except as provided in the
preceding sentence, the Class Principal Balance of each Class of Principal
Balance Certificates shall not otherwise be increased or reduced. Distributions
to the Holders of any such Class of Principal Balance Certificates in
reimbursement of any Unreimbursed Principal Balance Reductions in respect of
such Class of Certificates shall not constitute distributions of principal and
shall not result in any reduction of the related Class Principal Balance.
(f) Each Class S REMIC III Regular Interest shall bear
interest. Accrued Component Interest in respect of the Class S REMIC III Regular
Interests shall commence accruing on the Cut-off Date. With respect to each
Class S REMIC III Regular Interest, the Accrued Component Interest shall accrue
during each Interest Accrual Period at the applicable Class S Strip Rate on the
Component Notional Amount of such Class S REMIC III Regular Interest outstanding
immediately prior to the related Distribution Date. The Accrued Component
Interest in respect of each Class S REMIC III Regular Interest shall be
calculated on a 30/360 Basis. Notwithstanding the foregoing, the portion of the
Accrued Component Interest in respect of any Class S REMIC III Regular Interest
for any Interest Accrual Period that may be distributable to the Holders of the
Class S Certificates pursuant to Section 4.01(a) shall not exceed the
Distributable Component Interest in respect of such Class S REMIC III Regular
Interest for the related Distribution Date.
(g) Each Class of Regular Interest Certificates shall bear
interest. Accrued Certificate Interest in respect of the Regular Interest
Certificates shall commence accruing on the Cut-off Date. With respect to each
Class of Principal Balance Certificates, the Accrued Certificate Interest shall
accrue during each Interest Accrual Period at the applicable Pass-Through Rate
on the Class Principal Balance of such Class of Certificates outstanding
immediately prior to the related Distribution Date. The Accrued Certificate
Interest in respect of each Class of Principal Balance Certificates shall be
calculated on a 30/360 Basis. The Accrued Certificate Interest in respect of the
Class S Certificates for any Interest Accrual Period shall consist of the
aggregate Accrued Component Interest in respect of all the Class S REMIC III
Regular Interests for such Interest Accrual Period, calculated in accordance
with Section 2.14(f). Notwithstanding the foregoing, the portion of the Accrued
Certificate Interest in respect of any Class of Regular Interest Certificates
for any Interest Accrual Period that may be distributable to the Holders of such
Class of Certificates pursuant to Section 4.01(a) shall not exceed the
Distributable Certificate Interest in respect of such Class of Certificates for
the related Distribution Date.
(h) The Class R-III Certificates shall not have principal
balances and shall not bear interest.
SECTION 2.15. Acceptance of Grantor Trusts by Trustee;
Issuance of the Class D and Class R-I
Certificates.
(a) It is the intention of the parties hereto that the
segregated pool of assets consisting of any collections of Additional Interest
received on the GECA Mortgage Loans that are ARD Loans constitute a Grantor
Trust for federal income tax purposes and, further, that such segregated pool of
assets be designated as "Grantor Trust D-1". The Trustee, by its execution and
delivery hereof, acknowledges the assignment to it of the assets of Grantor
Trust D-1 and declares that it will hold such assets in trust for the exclusive
use and benefit of all present and future Holders of the Class D-1 Certificates.
Concurrently with
-76-
<PAGE>
the assignment to it of the assets included in Grantor Trust D-1, the Trustee
shall execute, authenticate and deliver to or upon the order of the Depositor
the Class D-1 Certificates in authorized denominations evidencing the entire
beneficial ownership of Grantor Trust D-1. The rights of the Holders of the
Class D-1 Certificates to receive distributions from the proceeds of Grantor
Trust D-1, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
(b) It is the intention of the parties hereto that the
segregated pool of assets consisting of any collections of Additional Interest
received on the Column Mortgage Loans that are ARD Loans constitute a Grantor
Trust for federal income tax purposes and, further, that such segregated pool of
assets be designated as "Grantor Trust D-2". The Trustee, by its execution and
delivery hereof, acknowledges the assignment to it of the assets of Grantor
Trust D-2 and declares that it will hold such assets in trust for the exclusive
use and benefit of all present and future Holders of the Class D-2 Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
D-2, the Trustee shall execute, authenticate and deliver to or upon the order of
the Depositor the Class D-2 Certificates in authorized denominations evidencing
the entire beneficial ownership of Grantor Trust D-2. The rights of the Holders
of the Class D-2 Certificates to receive distributions from the proceeds of
Grantor Trust D-2, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
(c) The Depositor, as of the Closing Date, and concurrently
with the execution and delivery of this Agreement, does hereby assign without
recourse all right, title and interest of the Depositor in and to the REMIC I
Residual Interest and the Loan REMIC Residual Interests to the Trustee for the
benefit of the Holders of the Class R-I Certificates. It is the intention of the
parties hereto that the segregated pool of assets consisting of the REMIC I
Residual Interest and the Loan REMIC Residual Interests constitute a Grantor
Trust for federal income tax purposes and, further, that such segregated pool of
assets be designated as "Grantor Trust R-I". The Trustee, by its execution and
delivery hereof, acknowledges the assignment to it of the assets of Grantor
Trust R-I and declares that it will hold such assets in trust for the exclusive
use and benefit of all present and future Holders of the Class R-I Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
R-I, the Trustee shall execute, authenticate and deliver to or upon the order of
the Depositor the Class R-I Certificates in authorized denominations evidencing
the entire beneficial ownership of Grantor Trust R-I. The rights of the Holders
of the Class R-I Certificates to receive distributions from the proceeds of
Grantor Trust R-I, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
-77-
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans and any REO Properties that it is
obligated to service and administer pursuant to this Agreement, for the benefit
of the Certificateholders (as a collective whole), in accordance with any and
all applicable laws and the express terms of this Agreement and the respective
Mortgage Loans and, to the extent consistent with the foregoing, in accordance
with the Servicing Standard. The Master Servicer or Special Servicer, as
applicable in accordance with this Agreement, shall service and administer each
Cross- Collateralized Group as a single Mortgage Loan as and when necessary and
appropriate consistent with the Servicing Standard. Without limiting the
foregoing, and subject to Section 3.21, (i) the Master Servicer shall service
and administer all Performing Mortgage Loans, and (ii) the Special Servicer
shall service and administer (x) each Mortgage Loan (other than a Corrected
Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each
REO Property; provided, however, that the Master Servicer shall continue to
collect information and prepare all reports to the Trustee required hereunder
with respect to any Specially Serviced Mortgage Loans and REO Properties (and
the related REO Mortgage Loans) and, further, to render such incidental services
with respect to any Specially Serviced Mortgage Loans and REO Properties as are
specifically provided for herein. The Master Servicer shall not, on behalf of
the Trust, obtain title to a Mortgaged Property.
(b) Subject to Section 3.01(a), the Master Servicer and the
Special Servicer shall each have full power and authority, acting alone or
through Sub-Servicers, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicer and the Special Servicer, in its own name, with respect to each of the
Mortgage Loans it is obligated to service hereunder, is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them: (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and other related
collateral; and (ii) any and all instruments of satisfaction or cancellation, or
of partial or full release or discharge, and all other comparable instruments.
In addition, without limiting the generality of the foregoing, each of the
Master Servicer and Special Servicer is authorized and empowered by the Trustee
to execute and deliver, in accordance with the Servicing Standard and subject to
Sections 3.08 and 3.20, any and all assumptions, modifications, waivers,
amendments or consents to or with respect to any documents contained in the
related Mortgage File. Subject to Section 3.10, the Trustee shall, at the
written request of a Servicing Officer of the Master Servicer or the Special
Servicer, furnish, or cause to be so furnished, to the Master Servicer or the
Special Servicer, as appropriate, any limited powers of attorney and other
documents (each of which shall be prepared by the Master Servicer or Special
Servicer, as applicable) necessary or appropriate to enable it to carry out its
servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any misuse of any such power of attorney by
the Master Servicer or the Special Servicer.
-78-
<PAGE>
(c) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee under this Agreement is intended by the parties
to be that of an independent contractor and not that of a joint venturer,
partner or agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The Master Servicer and the Special Servicer shall each
undertake reasonable efforts to collect all payments called for under the terms
and provisions of the Mortgage Loans it is obligated to service hereunder and
shall follow such collection procedures as are consistent with the Servicing
Standard; provided, however, that neither the Master Servicer nor the Special
Servicer shall, with respect to any Designated ARD Loan after its Anticipated
Repayment Date, take any enforcement action with respect to the payment of
Additional Interest (other than the making of requests for its collection),
unless (i) the taking of an enforcement action with respect to the payment of
other amounts due under such Mortgage Loan is, in the good faith and reasonable
judgment of the Special Servicer, and without regard to such Additional
Interest, also necessary, appropriate and consistent with the Servicing Standard
or (ii) all other amounts due under such Mortgage Loan have been paid, the
payment of such Additional Interest has not been forgiven in accordance with
Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated Advance Interest. Consistent with the
foregoing, the Master Servicer (as to Performing Mortgage Loans) and the Special
Servicer (as to Specially Serviced Mortgage Loans) each may waive any Default
Charges in connection with any specific delinquent payment on a Mortgage Loan it
is obligated to service hereunder.
(b) Ninety (90) days prior to the maturity date of each
Balloon Mortgage Loan, the Master Servicer shall send a notice to the related
Borrower of such maturity date (with a copy to be sent to the Special Servicer)
and shall request confirmation that the Balloon Payment will be paid by such
date.
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall establish and maintain one or
more accounts (the "Servicing Accounts"), in which all Escrow Payments received
by it with respect to the Mortgage Loans shall be deposited and retained.
Subject to any terms of the related Mortgage Loan documents or any Designated
Sub-Servicer Agreement, as applicable, that specify the nature of the account in
which Escrow Payments shall be held, each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected in respect of any Mortgage Loan
(and interest earned thereon) from a Servicing Account may be made only: (i) to
effect the payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and comparable items in respect of the related Mortgaged
Property; (ii) to reimburse the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as applicable, for any unreimbursed Servicing
Advances made thereby to cover any of the items described in the immediately
preceding clause (i); (iii) to refund to the related Borrower any sums as may be
determined to be overages; (iv) to pay interest or other income, if required and
as described below, to the related Borrower on balances in the Servicing Account
(or, if and to the extent not payable to the related Borrower to pay such
interest or other income (up to the amount of any Net Investment Earnings in
respect of such Servicing Account for each Collection Period) to the Master
Servicer); or (v) to clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. The Master
Servicer shall pay or cause to be paid to the Borrowers interest
-79-
<PAGE>
and other income, if any, earned on the investment of funds in Servicing
Accounts maintained thereby, if and to the extent required by law or the terms
of the related Mortgage Loan. If the Master Servicer shall deposit in a
Servicing Account any amount not required to be deposited therein, it may at any
time withdraw such amount from such Servicing Account, any provision herein to
the contrary notwithstanding. Promptly after any Escrow Payments are received by
the Special Servicer from any Borrower, and in any event within two (2) Business
Days after any such receipt, the Special Servicer shall remit such Escrow
Payments to the Master Servicer for deposit in the applicable Servicing
Account(s).
(b) The Master Servicer shall as to each Mortgage Loan
(including each Specially Serviced Mortgage Loan) (i) maintain accurate records
with respect to the related Mortgaged Property reflecting the status of real
estate taxes, assessments and other similar items that are or may become a lien
thereon and the status of insurance premiums and any ground rents payable in
respect thereof and (ii) use reasonable efforts consistent with the Servicing
Standard to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and effect payment thereof prior to the applicable
penalty or termination date. For purposes of effecting any such payment, the
Master Servicer shall apply Escrow Payments as allowed under the terms of the
related Mortgage Loan documents; provided, however, that if such Mortgage Loan
does not require the related Borrower to escrow for the payment of real estate
taxes, assessments, insurance premiums, ground rents (if applicable) and similar
items, each of the Master Servicer and the Special Servicer shall, as to those
Mortgage Loans it is obligated to service hereunder, and subject to and in
accordance with the Servicing Standard, enforce the requirement of the related
Mortgage that the Borrower make payments in respect of such items at the time
they first become due.
(c) In accordance with the Servicing Standard, the Master
Servicer shall advance with respect to each Mortgaged Property (including each
Mortgaged Property relating to a Specially Serviced Mortgage Loan) all such
funds as are necessary for the purpose of effecting the timely payment of (i)
real estate taxes, assessments and other similar items, (ii) ground rents (if
applicable), and (iii) premiums on Insurance Policies (excluding title insurance
policies), in each instance prior to the applicable penalty or termination date
if and to the extent that (x) Escrow Payments (if any) collected from the
related Borrower are insufficient to pay such item when due, (y) the Master
Servicer determines in accordance with the Servicing Standard that the related
Borrower has failed to pay such item on a timely basis and (z) the particular
Advance would not, if made, constitute a Nonrecoverable Servicing Advance;
provided that with respect to any Mortgage Loan under which the related Borrower
is not required to make Escrow Payments for real estate taxes, the Master
Servicer shall be required to advance such real estate taxes only upon its
determination, using efforts consistent with the Servicing Standard, that such
real estate taxes have not been paid). All such Advances shall be reimbursable
in the first instance from related collections from the Borrowers and further as
provided in Section 3.05(a). No costs incurred by the Master Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of such Mortgaged Properties shall, for purposes
hereof, including calculating monthly distributions to Certificateholders, be
added to the respective unpaid principal balances or Stated Principal Balances
of the related Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit; provided, however, that this sentence shall not be construed to
limit the rights of the Master Servicer on behalf of the Trust to enforce any
obligations of the related Borrower under such Mortgage Loan.
-80-
<PAGE>
(d) The Master Servicer shall establish and maintain, as
applicable, one or more accounts (the "Reserve Accounts"), in which all Reserve
Funds, if any, shall be deposited and retained (to the extent not retained by a
Designated Sub-Servicer with respect to the related Mortgage Loans pursuant to
the related Designated Sub-Servicer Agreement). As and to the extent consistent
with the Servicing Standard and the related Mortgage Loan documents, withdrawals
of amounts so deposited, and draws under any Letter of Credit delivered in lieu
of Reserve Funds, may be made to pay for, or to reimburse the related Borrower
in connection with, the costs associated with the related tenant improvements,
leasing commissions, repairs, replacements, capital improvements and/or
environmental testing and remediation at or with respect to the related
Mortgaged Property for which such Reserve Funds were intended or such Letter of
Credit was delivered. In addition, as and to the extent consistent with the
Servicing Standard and the related Mortgage Loan documents, withdrawals of
amounts so deposited, and draws under any Letter of Credit so delivered, may be
made to prepay the Mortgage Loan in the event certain leasing or other economic
criteria are not satisfied at the related Mortgaged Property, or to release such
amounts to the related Borrower or otherwise apply such amounts for any other
appropriate purpose in the event that such criteria are satisfied. Subject to
the terms of the related Mortgage Loan documents, each Reserve Account shall be
an Eligible Account. Interest and other income, if any, earned on funds on
deposit in any Reserve Account held by the Master Servicer (to the extent of any
Net Investment Earnings with respect to such Reserve Account for any Collection
Period), shall be for the benefit of and payable to the Master Servicer, unless
otherwise required to be paid to the related Borrower by law or the terms of the
related Mortgage Loan. Any out-of-pocket expenses incurred by the Master
Servicer to enable the Master Servicer to make any draw under any Letter of
Credit shall constitute a Servicing Advance, and the Master Servicer shall make
reasonable efforts to recover such expenses from the related Borrower to the
extent the Borrower is required to pay such expenses under the terms of the
related Mortgage Loan.
(e) To the extent an operations and maintenance plan is
required to be established and executed pursuant to the terms of a Mortgage
Loan, the Master Servicer shall request from the Borrower written confirmation
thereof within a reasonable time after the later of the Closing Date and the
date as of which such plan is required to be established or completed. To the
extent any action or remediations are required to have been taken or completed
pursuant to the terms of the related Mortgage Loan documents, the Master
Servicer shall request from the Borrower written confirmation of such action and
remediations within a reasonable time after the later of the Closing Date and
the date as of which such action or remediations are required to have been taken
or completed. To the extent that a Borrower shall fail to promptly respond to
any inquiry described in this Section 3.03(e), the Master Servicer shall notify
the Trustee, the Special Servicer and the Controlling Class Representative. The
Master Servicer shall promptly notify the Trustee, the Special Servicer and the
Controlling Class Representative if the Master Servicer shall determine that any
Borrower has failed to perform its obligations under the related Mortgage Loan
in respect of environmental matters.
(f) Subject to applicable law and the terms of the related
Mortgage Loan documents, funds in the Servicing Accounts and the Reserve
Accounts may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06.
-81-
<PAGE>
SECTION 3.04. Collection Account, Distribution Account and
Interest Reserve Account.
(a) The Master Servicer shall establish and maintain one or
more segregated accounts (collectively, the "Collection Account"), in which the
funds described below are to be deposited and held on behalf of the Trustee in
trust for the benefit of the Certificateholders. Each account that constitutes
the Collection Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Collection Account, within one (1)
Business Day of receipt (in the case of payments by Borrowers or other
collections on the Mortgage Loans) or as otherwise required hereunder, the
following payments and collections received or made by or on behalf of the
Master Servicer in respect of the Mortgage Pool subsequent to the Closing Date
(other than in respect of scheduled payments of principal and interest due and
payable on the Mortgage Loans on or before the Cut-off Date (or, in the case of
a Replacement Mortgage Loan, on or before the related date of substitution),
which payments shall be delivered promptly to the related Mortgage Loan Seller
or its designee, with negotiable instruments endorsed as necessary and
appropriate without recourse):
(i) all payments on account of principal of the Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage
Loans, including Default Interest and Additional Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and
late payment charges received in respect of the Mortgage Loans;
(iv) all Insurance Proceeds and Liquidation Proceeds received
in respect of the Mortgage Loans;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in the Collection
Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a blanket
or master force place hazard policy;
(vii) any amounts required to be transferred from any REO
Account pursuant to Section 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Borrower specifically to cover items for which a
Servicing Advance has been made.
The foregoing requirements for deposit in the Collection
Account shall be exclusive. Without limiting the generality of the foregoing,
actual payments from Borrowers in the nature of Escrow Payments, assumption
fees, assumption application fees, extension fees, modification fees, charges
for beneficiary statements or demands and amounts collected for checks returned
for insufficient funds, need not be
-82-
<PAGE>
deposited by the Master Servicer in the Collection Account. The Master Servicer
shall promptly deliver to the Special Servicer any of the foregoing items
received by it, if and to the extent that such items constitute Additional
Special Servicing Compensation. If the Master Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Collection Account, any provision herein
to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i)
through (iv) and (viii) of the first paragraph of this Section 3.04(a) with
respect to any Mortgage Loan, the Special Servicer shall promptly, but in no
event later than one Business Day after receipt, remit such amounts to the
Master Servicer for deposit into the Collection Account in accordance with the
second preceding paragraph, unless the Special Servicer determines, consistent
with the Servicing Standard, that a particular item should not be deposited
because of a restrictive endorsement. With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
such check to the order of the Master Servicer (in its capacity as such for the
Trust), without recourse, representation or warranty, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement.
Any such amounts received by the Special Servicer with respect to an REO
Property shall be deposited by the Special Servicer into the REO Account and
remitted to the Master Servicer for deposit into the Collection Account pursuant
to Section 3.16(c).
(b) The Trustee shall establish and maintain one or more
segregated accounts (collectively, the "Distribution Account"), to be held in
trust for the benefit of the Certificateholders. Each account that constitutes
the Distribution Account shall be an Eligible Account. The Trustee shall
establish and maintain three sub-accounts of the Distribution Account (i) one of
which sub-accounts (such sub-account, the "REMIC Sub-Account") shall be deemed
to be held in trust for the benefit of the Holders of the Regular Interest
Certificates and the Residual Interest Certificates, (ii) one of which
sub-accounts (such sub-account, the "Class D-1 Sub-Account") shall be deemed to
be held in trust for the benefit of the Holders of the Class D-1 Certificates
and (iii) one of which sub-accounts (such sub-account, the "Class D-2
Sub-Account") shall be deemed to be held in trust for the benefit of the Holders
of the Class D-2 Certificates. By 2:00 p.m. (New York City time) on each Master
Servicer Remittance Date, the Master Servicer shall deliver to the Trustee, for
deposit in the Distribution Account, an aggregate amount of immediately
available funds equal to the Master Servicer Remittance Amount for such Master
Servicer Remittance Date. Immediately upon deposit of the Master Servicer
Remittance Amount for any Master Servicer Remittance Date into the Distribution
Account, any portion thereof that represents any Additional Interest related to
the GECA Mortgage Loans shall be deemed to have been deposited into the Class
D-1 Sub-Account, any portion thereof that represents any Additional Interest
related to the Column Mortgage Loans shall be deemed to have been deposited into
the Class D-2 Sub-Account, and the remaining portion thereof shall be deemed to
have been deposited into the REMIC Sub-Account. In addition, the Master Servicer
shall, as and when required hereunder, deliver to the Trustee for deposit in the
Distribution Account any P&I Advances and Compensating Interest Payments
required to be made by the Master Servicer hereunder. Furthermore, any amounts
paid by any party hereto to indemnify the Trust Fund pursuant to any provision
hereof shall be delivered to the Trustee for deposit in the Distribution
Account. The Trustee shall, upon receipt, deposit in the Distribution Account
any and all amounts received or, pursuant to Section 4.03, advanced by the
Trustee or any Fiscal Agent that are required by the terms of this Agreement to
be deposited therein. As and when required pursuant to Section 3.05(c), the
Trustee shall transfer Interest Reserve Amounts in respect of the Interest
Reserve Loans from the Interest Reserve Account to the Distribution Account.
-83-
<PAGE>
(c) The Trustee shall establish and maintain one or more
accounts (collectively, the "Interest Reserve Account") to be held in trust for
the benefit of the Certificateholders. Each account that constitutes the
Interest Reserve Account shall be an Eligible Account. On the Distribution Date
in January (except during a leap year) and February of each calendar year,
commencing in 2000, prior to any distributions being made in respect of the
Certificates on such Distribution Date, the Trustee shall, with respect to each
Interest Reserve Loan, withdraw from the Distribution Account and deposit in the
Interest Reserve Account an amount equal to the Interest Reserve Amount, if any,
in respect of such Interest Reserve Loan for such Distribution Date; provided
that no such transfer of monies from the Distribution Account to the Interest
Reserve Account shall be made on the Final Distribution Date.
(d) Funds in the Collection Account may be invested in
Permitted Investments in accordance with the provisions of Section 3.06. Funds
in the Distribution Account and the Interest Reserve Account shall remain
uninvested. The Master Servicer shall give notice to the other parties hereto of
the location of the Collection Account as of the Closing Date and of the new
location of the Collection Account prior to any change thereof. The Distribution
Account and Interest Reserve Account shall each be established at the Corporate
Trust Office of the Trustee as of the Closing Date, and the Trustee shall give
notice to the other parties hereto of the new location of each of the
Distribution Account and Interest Reserve Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Collection
Account, the Distribution Account and the
Interest Reserve Account.
(a) The Master Servicer may, from time to time, make
withdrawals from the Collection Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Trustee for deposit in the Distribution
Account the Master Servicer Remittance Amount for each Master Servicer
Remittance Date and any amounts that may be applied to make P&I
Advances pursuant to Section 4.03(a);
(ii) to reimburse itself, the Trustee or any Fiscal Agent, as
applicable, for unreimbursed P&I Advances made thereby (in each case,
with its own funds), the Master Servicer's, the Trustee's and any
Fiscal Agent's, as the case may be, respective rights to reimbursement
pursuant to this clause (ii) with respect to any P&I Advance (other
than Nonrecoverable P&I Advances, which are reimbursable pursuant to
clause (vii) below) being limited to amounts that represent Late
Collections of interest and principal received in respect of the
particular Mortgage Loan or REO Mortgage Loan as to which such P&I
Advance was made (net of related Master Servicing Fees, Additional
Servicing Fees and/or Workout Fees);
(iii) to pay to itself earned and unpaid Master Servicing Fees
and, to the extent the related Designated Sub-Servicer has not been
terminated without a successor, to pay the applicable Designated
Sub-Servicer earned and unpaid Additional Servicing Fees (if any), in
either case in respect of each Mortgage Loan and REO Mortgage Loan,
the Master Servicer's and any Designated Sub-Servicer's right to
payment pursuant to this clause (iii) with respect to any Mortgage
Loan or REO Mortgage Loan being limited to amounts received on or in
respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds or Insurance Proceeds) or such REO
-84-
<PAGE>
Mortgage Loan (whether in the form of REO Revenues, Liquidation
Proceeds or Insurance Proceeds) that are allocable as interest
thereon;
(iv) with respect to any Additional Servicing Fee Mortgage
Loan, if no Designated Sub- Servicer or successor thereto is currently
in place under a Designated Sub-Servicer Agreement, to pay to Archon
or its designee, the Additional Servicing Fee with respect to such
Additional Servicing Fee Mortgage Loan, Archon's right to payment
pursuant to this clause (iv) with respect to such Additional Servicing
Fee Mortgage Loan being limited to amounts received, in any form, that
are allocable to interest thereon;
(v) to pay to the Special Servicer, out of general collections
on the Mortgage Loans and any REO Properties, earned and unpaid
Special Servicing Fees in respect of each Specially Serviced Mortgage
Loan and REO Mortgage Loan;
(vi) to pay the Special Servicer (or, if applicable, any
predecessor thereto) earned and unpaid Workout Fees and Liquidation
Fees to which it is entitled pursuant to, and from the sources
contemplated by, the second and third paragraphs of Section 3.11(c);
(vii) to reimburse itself, the Special Servicer, the Trustee
or any Fiscal Agent, as applicable, for any unreimbursed Servicing
Advances made thereby (in each case, with its own funds), the Master
Servicer's, the Special Servicer's, the Trustee's and any Fiscal
Agent's, as the case may be, respective rights to reimbursement
pursuant to this clause (vii) with respect to any Servicing Advance
(other than Nonrecoverable Servicing Advances, which are reimbursable
pursuant to clause (viii) below) being limited to (A) payments made by
the related Borrower that are allocable to cover the item in respect
of which such Servicing Advance was made, and (B) Liquidation
Proceeds, Insurance Proceeds and, if applicable, REO Revenues received
in respect of the particular Mortgage Loan or REO Property as to which
such Servicing Advance was made;
(viii) to reimburse itself, the Special Servicer, the Trustee
or any Fiscal Agent, as applicable, out of general collections on the
Mortgage Loans and any REO Properties, for any unreimbursed Advances
made thereby that have been determined to be Nonrecoverable Advances;
(ix) to pay itself, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, any Advance Interest due and owing
thereto, the Master Servicer's, the Special Servicer's, the Trustee's
or any Fiscal Agent's, as the case may be, respective rights to
payment pursuant to this clause (ix) being limited to Default Charges
collected in respect of the Mortgage Loan or REO Mortgage Loan as to
which the related Advances were made;
-85-
<PAGE>
(x) to the extent that the Master Servicer has reimbursed or
is reimbursing itself, the Special Servicer, the Trustee or any Fiscal
Agent, as applicable, for any unreimbursed Advance pursuant to clause
(ii), (vii) or (viii) above or pursuant to Section 3.03(c), and
insofar as payment has not already been made, and the related Default
Charges then on deposit in the Collection Account are not sufficient
to make such payment pursuant to clause (ix) above, to pay itself, the
Special Servicer, the Trustee or such Fiscal Agent, as the case may
be, out of general collections on the Mortgage Loans and any REO
Properties (or, if applicable, such specific amounts as may be
provided for in Section 4.03(e)), any related Advance Interest accrued
and payable on the portion of such Advance so reimbursed or being
reimbursed;
(xi) to reimburse the Trustee for the reasonable out-of-pocket
expenses of providing notices pursuant to the third paragraph of
Section 3.24(a);
(xii) to pay itself any items of Additional Master Servicing
Compensation on deposit in the Collection Account from time to time;
(xiii) to pay to the Special Servicer any items of Additional
Special Servicing Compensation on deposit in the Collection Account
from time to time;
(xiv) to pay any unpaid Liquidation Expenses incurred with
respect to any Mortgage Loan or REO Property, such payments to be made
solely from Liquidation Proceeds, Insurance Proceeds and, if
applicable, REO Revenues received in respect of such Mortgage Loan or
REO Property, as the case may be;
(xv) to pay, in accordance with Section 3.11(i), out of
general collections on the Mortgage Loans and any REO Properties,
certain servicing expenses that would, if advanced, constitute
Nonrecoverable Servicing Advances;
(xvi) to pay, out of general collections on the Mortgage Loans
and any REO Properties, for costs and expenses incurred by the Trust
Fund pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable
as, a Servicing Advance);
(xvii) to pay itself, the Special Servicer, the REMIC
Administrator, the Depositor, the Trustee, any Fiscal Agent, or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, out of general collections on the Mortgage
Loans and any REO Properties, any amounts payable to any such Person
pursuant to Section 6.03, Section 7.01(b), Section 8.05(b) and/or
Section 8.13, as applicable;
(xviii) to pay, out of general collections on the Mortgage
Loans and any REO Properties, for (A) the cost of the Opinion of
Counsel contemplated by Section 11.02(a), (B) the cost of recording
this Agreement in accordance with Section 11.02(a), (C) any expense
(including the reasonable fees of tax accountants and attorneys)
incurred by the REMIC Administrator pursuant to Section 3.17(a)(iii)
in connection with providing advice to the Special Servicer, and (D)
any expense incurred by the Trustee pursuant to Section 3.23(b) in
connection with obtaining information from the Depository or
Depository Participants regarding any Book-Entry Certificate;
-86-
<PAGE>
(xix) to pay to the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the REMIC Administrator or the Depositor,
as the case may be, any amount specifically required to be paid to
such Person at the expense of the Trust Fund under any provision of
this Agreement to which reference is not made in any other clause of
this Section 3.05(a), it being acknowledged that this clause (xix)
shall not be construed to modify any limitation otherwise set forth in
this Agreement on the time at which any Person is entitled to payment
or reimbursement of any amount or the funds from which any such
payment or reimbursement is permitted to be made;
(xx) to pay itself, the Special Servicer, GECA, GSMC, Column,=
Union Capital, the Majority Controlling Class Certificateholder or any
other particular Person, as the case may be, with respect to each
Mortgage Loan, if any, previously purchased by such Person pursuant to
this Agreement, all amounts received thereon subsequent to the date of
purchase; and
(xxi) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Collection Account at any
particular time (after withdrawing any portion of such amounts deposited in the
Collection Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses (ii)
through (xx) above, then the corresponding withdrawals from the Collection
Account shall be made in the following priority and subject to the following
rules: (y) if the payment, reimbursement or remittance is to be made from a
specific source of funds, then such payment, reimbursement or remittance shall
be made from that specific source of funds on a pro rata basis with any and all
other payments, reimbursements and remittances to be made from such specific
source of funds; and (z) if the payment, reimbursement or remittance can be made
from any funds on deposit in the Collection Account, then (following any
withdrawals made from the Collection Account in accordance with the immediately
preceding clause (y) above) such payment, reimbursement or remittance shall be
made from the general funds remaining on a pro rata basis with any and all other
payments, reimbursements or remittances to be made from such general funds;
provided that any reimbursements of Advances in respect of any particular
Mortgage Loan or REO Property out of the Collection Account pursuant to any of
clauses (ii), (vii) and (viii) above, and any payments of interest thereon out
of the Collection Account pursuant to either of clauses (ix) and (x) above,
shall be made (to the extent of their respective entitlements to such
reimbursements and/or payments): first, to any Fiscal Agent; second, to the
Trustee; and third, pro rata, to the Master Servicer and Special Servicer.
The Master Servicer shall keep and maintain separate
accounting records, on a loan-by-loan and property-by-property basis when
appropriate, in connection with any withdrawal from the Collection Account
pursuant to any of clauses (ii) through (xx) above.
The Master Servicer shall pay to the Special Servicer (or to
third party contractors at the direction of the Special Servicer) from the
Collection Account amounts permitted to be paid to it (or to such third party
contractors) therefrom promptly upon receipt of a certificate of a Servicing
Officer of the Special Servicer describing the item and amount to which the
Special Servicer (or any such third party contractor) is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
recalculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Property, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Collection Account.
-87-
<PAGE>
(b) The Trustee shall, from time to time, make withdrawals
from the Distribution Account for each of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01;
(ii) to pay itself (whether in its capacity as Trustee or, for
so long as it acts as such, REMIC Administrator) or any of its
directors, officers, employees and agents, as the case may be, any
amounts payable or reimbursable to any such Person pursuant to Section
8.05, including the Trustee's Fee;
(iii) to pay any Fiscal Agent or any of its directors,
officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Sections
8.05(b) and 8.13(a);
(iv) to pay for the cost of the Opinions of Counsel sought by
the Trustee as contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the
Trustee which amendment is in furtherance of the rights and interests
of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed
on any REMIC Pool or on the assets or transactions of any REMIC Pool,
together with all incidental costs and expenses, and any and all
expenses relating to tax audits, if and to the extent that either (A)
none of the parties hereto are liable therefor pursuant to Section
10.01(b) and/or Section 10.01(f) or (B) any such Person that may be so
liable has failed to timely make the required payment;
(vi) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Loans to the Interest Reserve Account as and when
required by Section 3.04(c); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each
year (commencing in March 2000), and in any event on the Master Servicer
Remittance Date that occurs in the same calendar month as the Final Distribution
Date, the Trustee shall withdraw from the Interest Reserve Account and deposit
in the Distribution Account all Interest Reserve Amounts in respect of the
Interest Reserve Loans then on deposit in the Interest Reserve Account.
(d) The Trustee, any Fiscal Agent, the Depositor, the Master
Servicer, the Special Servicer and Archon, as applicable, shall in all cases
have a right prior to the Certificateholders to any particular funds on deposit
in the Collection Account and the Distribution Account from time to time for the
reimbursement or payment of compensation, Advances (with interest thereon at the
Reimbursement Rate) and their respective expenses hereunder (or, in the case of
such expenses, to have such funds paid directly to third party contractors from
any invoices approved by the Trustee, any Fiscal Agent, the Depositor, the
Master Servicer or the Special Servicer, as applicable), but only if and to the
extent such compensation, Advances
-88-
<PAGE>
(with interest) and expenses are to be reimbursed or paid from such particular
funds on deposit in the Collection Account or the Distribution Account pursuant
to the express terms of this Agreement.
SECTION 3.06. Investment of Funds in the Collection Account,
Interest Reserve Account, Servicing Accounts,
Reserve Accounts and the REO Account.
(a) The Master Servicer may direct (pursuant to a standing
order or otherwise) any depository institution (including the Trustee)
maintaining the Collection Account or any Servicing Account or Reserve Account
held by it, and the Special Servicer may direct (pursuant to a standing order or
otherwise) any depository institution maintaining the REO Account, to invest, or
if it is such depository institution, may itself invest, the funds held therein
(each such account, for purposes of this Section 3.06, an "Investment Account")
in (but only in) one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business Day
immediately preceding the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement or the related
Mortgage Loan documents, as applicable; provided that any such investment of
funds in any Servicing Account or Reserve Account shall be subject to applicable
law and the terms of the related Mortgage Loan documents and any related
Designated Sub-Servicer Agreement; and provided, further, that the funds in any
Investment Account shall remain uninvested unless and until the Master Servicer
or Special Servicer, as applicable, gives timely investment instructions with
respect thereto pursuant to this Section 3.06. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds in
an Investment Account shall be made in the name of the Trustee (in its capacity
as such). The Master Servicer (with respect to Permitted Investments of amounts
in the Collection Account, the Servicing Accounts and the Reserve Accounts) and
the Special Servicer (with respect to Permitted Investments of amounts in the
REO Account), acting on behalf of the Trustee, shall (and Trustee hereby
designates the Master Servicer and the Special Servicer, as applicable, as the
Person that shall) (i) be the "entitlement holder" of any Permitted Investment
that is a "security entitlement" and (ii) maintain "control" of any Permitted
Investment that is either a "certificated security" or an "uncertificated
security". For purposes of this Section 3.06(a), the terms "entitlement holder",
"security entitlement", "control", "certificated security" and "uncertificated
security" shall have the meanings given such terms in Revised Article 8 (1994
Revision) of the UCC, and "control" of any Permitted Investment by the Master
Servicer or the Special Servicer shall constitute "control" by a Person
designated by, and acting on behalf of, the Trustee for purposes of Revised
Article 8 (1994 Revision) of the UCC. If amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the Master Servicer (in the case of the Collection Account or any Servicing
Account or Reserve Account) or the Special Servicer (in the case of the REO
Account) shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount at
least equal to the lesser of (1) all amounts then payable thereunder
and (2) the amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
-89-
<PAGE>
(b) Whether or not the Master Servicer directs the investment
of funds in the Collection Account, interest and investment income realized on
funds deposited therein, to the extent of the Net Investment Earnings, if any,
for such Investment Account for each Collection Period, shall be for the sole
and exclusive benefit of the Master Servicer and shall be subject to its
withdrawal in accordance with Section 3.05(a). Whether or not the Master
Servicer directs the investment of funds in any Servicing Account or Reserve
Account, interest and investment income realized on funds deposited therein, to
the extent of the Net Investment Earnings, if any, for such Investment Account
for each Collection Period, shall be for the sole and exclusive benefit of the
Master Servicer and shall be subject to withdrawal from time to time in
accordance with Section 3.03, but only if and to the extent not required to be
paid to the related Borrower pursuant to applicable law or the terms of the
related Mortgage Loan. Whether or not the Special Servicer directs the
investment of funds in the REO Account, interest and investment income realized
on funds deposited therein, to the extent of the Net Investment Earnings, if
any, for such Investment Account for each Collection Period, shall be for the
sole and exclusive benefit of the Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(b). If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account (other
than a loss of what would otherwise have constituted investment earnings), the
Master Servicer (in the case of the Collection Account and any Servicing Account
or Reserve Account) and the Special Servicer (in the case of the REO Account)
shall promptly deposit therein from its own funds, without right of
reimbursement, no later than the end of the Collection Period during which such
loss was incurred, the amount of the Net Investment Loss, if any, in respect of
such Investment Account for such Collection Period (or, in the case of a
Servicing Account or Reserve Account, the entire amount of such loss).
(c) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of any payment due (or in any other
performance required) under any Permitted Investment, and if the Master Servicer
(if such default is in respect of a Permitted Investment of funds in the
Collection Account or in any Reserve Account or Servicing Account) or the
Special Servicer (if such default is in respect of a Permitted Investment of
funds in the REO Account), as applicable, is in default of its obligations under
Section 3.06(b), the Trustee may, and, subject to Section 8.02, upon the request
of Holders of Certificates entitled to not less than 25% of the Voting Rights
allocated to any Class of Regular Interest Certificates, the Trustee shall, take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate legal proceedings. Any
costs incurred by the Trustee in taking any such action shall be reimbursed to
it by the Master Servicer if the default is in respect of a Permitted Investment
of funds in the Collection Account or in any Reserve Account or Servicing
Account or by the Special Servicer if the default is in respect of a Permitted
Investment of funds in the REO Account. This provision is in no way intended to
limit any actions that the Master Servicer or Special Servicer may take in this
regard at its own expense.
(d) Amounts on deposit in the Distribution Account and the
Interest Reserve Account shall remain uninvested.
(e) Notwithstanding the investment of funds held in any
Investment Account, for purposes of the calculations hereunder, including the
calculation of the Available Distribution Amount and the Master Servicer
Remittance Amount, the amounts so invested shall be deemed to remain on deposit
in such Investment Account.
-90-
<PAGE>
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer shall cause to be maintained for each
Mortgaged Property (including each Mortgaged Property relating to any Specially
Serviced Mortgage Loan) all insurance coverage as is required under the related
Mortgage (to the extent consistent with applicable law); provided that if and to
the extent that any such Mortgage permits the holder thereof any discretion (by
way of consent, approval or otherwise) as to the insurance coverage that the
related Borrower is required to maintain, the Master Servicer shall exercise
such discretion in a manner consistent with the Servicing Standard, with a view
towards requiring insurance comparable to that required under other Mortgage
Loans with express provisions governing such matters; and provided, further,
that, if and to the extent that a Mortgage so permits, the related Borrower
shall be required to obtain the required insurance coverage from Qualified
Insurers that, in each case, have a financial strength or claims-paying rating
no lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "Baa2" from Moody's (if then rated
by Moody's; and, if not then rated by Moody's, "A:IX" or better from A.M. Best)
and "A" from Fitch (if then rated by Fitch; and, if not then rated by Fitch,
"A:IX" or better from A.M. Best) (or in such other form and amount or issued by
an insurer with such other financial strength or claims-paying ability as would
not, as confirmed in writing by each Rating Agency, result in an Adverse Rating
Event). Subject to Section 3.17(b), the Special Servicer shall also cause to be
maintained for each REO Property no less insurance coverage than was previously
required of the Borrower under the related Mortgage and, at a minimum, (i)
hazard insurance with a replacement cost rider, (ii) business interruption or
rental loss insurance for at least twelve (12) months, and (iii) commercial
general liability insurance, in each case, in an amount customary for the type
and geographic location of such REO Property and consistent with the Servicing
Standard; provided that all such insurance shall be obtained from Qualified
Insurers that, in each case, shall have a financial strength or claims-paying
rating no lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "Baa2" from Moody's (if then rated
by Moody's; and, if not then rated by Moody's, "A:IX" or better from A.M. Best)
and "A" from Fitch (if then rated by Fitch; and, if not then rated by Fitch,
"A:IX" or better from A.M. Best) (or in such other form and amount or issued by
an insurer with such other financial strength or claims-paying ability as would
not, as confirmed in writing by each Rating Agency, result in an Adverse Rating
Event). All such insurance policies shall contain (if they insure against loss
to property) a "standard" mortgagee clause, with loss payable to the Master
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of Mortgage Loans), or shall name the Trustee as the insured, with loss
payable to the Special Servicer on behalf of the Trustee (in the case of
insurance maintained in respect of REO Properties), and shall be issued by an
insurer authorized under applicable law to issue such insurance. Any amounts
collected by the Master Servicer or the Special Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or REO Property or amounts to be released to the related
Borrower, in each case in accordance with the Servicing Standard) shall be
deposited in the Collection Account, subject to withdrawal pursuant to Section
3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in
the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case
of amounts received in respect of an REO Property. Any cost incurred by the
Master Servicer or the Special Servicer in maintaining any such insurance shall
not, for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit; provided, however, that this sentence shall not limit
the rights of the Master Servicer on behalf of the Trust to enforce any
obligations of the related Borrower under such Mortgage Loan.
-91-
<PAGE>
(b) If the Master Servicer or the Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy or
master force place policy insuring against hazard losses on all of the Mortgage
Loans or REO Properties, as applicable, that it is required to service and
administer, then, to the extent such policy (i) is obtained from a Qualified
Insurer having a financial strength or claims-paying rating no lower than "Baa2"
from Moody's and "A" from Fitch (if then rated by Fitch; and, if not then rated
by Fitch, "A:IX" or better from A.M. Best) or having such other financial
strength or claims-paying ability rating as would not, as confirmed in writing
by each Rating Agency, result in an Adverse Rating Event, and (ii) provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or the Special Servicer, as the case may be, shall conclusively be
deemed to have satisfied its obligation to cause hazard insurance to be
maintained on the related Mortgaged Properties or REO Properties, as applicable.
Such policy may contain a deductible clause (not in excess of a customary
amount), in which case the Master Servicer or the Special Servicer, as
appropriate, shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property a hazard insurance policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
that would have been covered by such an individual policy, promptly deposit into
the Collection Account from its own funds the amount not otherwise payable under
the blanket or master force place policy in connection with such loss or losses
because of such deductible clause to the extent that any such deductible exceeds
the deductible limitation that pertained to the related Mortgage Loan (or, in
the absence of any such deductible limitation, the deductible limitation for an
individual policy which is consistent with the Servicing Standard). The Master
Servicer or the Special Servicer, as appropriate, shall prepare and present, on
behalf of itself, the Trustee and Certificateholders, claims under any such
blanket or master force place policy in a timely fashion in accordance with the
terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall
at all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Mortgage Loans or REO Properties exist as part of the Trust Fund) keep
in force with a Qualified Insurer having a financial strength or claims-paying
rating no lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "Baa2" from Moody's and "A" from
Fitch (if then rated by Fitch; and, if not then rated by Fitch, "A:IX" from A.M.
Best), a fidelity bond in such form and amount as would permit it to be a
qualified FNMA seller-servicer of multifamily mortgage loans (or in such other
form and amount or issued by an insurer with such other financial strength or
claims-paying ability rating as would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency)). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provision if an
Affiliate thereof has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Master Servicer
or the Special Servicer, as the case may be. Such fidelity bond shall provide
that it may not be canceled without ten (10) days' prior written notice to the
Trustee.
Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund)
also keep in force with a Qualified Insurer having a financial strength or
claims-paying rating no lower than two rating categories below the highest rated
Certificates outstanding, and in any event no lower than "Baa2" from Moody's and
"A" from Fitch (if then rated by Fitch; and, if not then rated by Fitch, "A:IX"
from A.M. Best), a policy or policies of insurance covering loss occasioned by
the errors and omissions of its officers, employees and agents in connection
with its servicing obligations hereunder, which policy or policies shall
-92-
<PAGE>
be in such form and amount as would permit it to be a qualified FNMA
seller-servicer of multifamily mortgage loans (or in such other form and amount
or issued by an insurer with such other financial strength or claims-paying
rating as would not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee by each Rating
Agency)). Each of the Master Servicer and the Special Servicer shall be deemed
to have complied with the foregoing provisions if an Affiliate thereof has such
insurance and, by the terms of such policy or policies, the coverage afforded
thereunder extends to the Master Servicer or the Special Servicer, as the case
may be. Any such errors and omissions policy shall provide that it may not be
canceled without ten (10) days' prior written notice to the Trustee.
For so long as the long-term debt obligations of the initial
Master Servicer (or its direct or indirect parent) are rated at least "AAA" or
the equivalent by each of the Rating Agencies, the initial Master Servicer may
self-insure with respect to the risks described in this Section 3.07(c).
SECTION 3.08. Enforcement of Alienation Clauses.
The Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgage Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of
record, shall evaluate any right to transfer and shall enforce the restrictions
contained in any Mortgage on transfers or further encumbrances of the related
Mortgaged Property and on transfers of interests in the related Borrower, unless
the Master Servicer or the Special Servicer, as appropriate, has determined, in
its reasonable, good faith judgment, that waiver of such restrictions would be
in accordance with the Servicing Standard; provided that the Master Servicer
shall not waive any right it has, or grant any consent it is otherwise entitled
to withhold, under any related "due-on-sale" or "due-on-encumbrance" clause
unless and until (i) it has so notified the Special Servicer in writing and
provided the Special Servicer with any written or electronic information in the
Master Servicer's possession regarding the affected Mortgage Loan that the
Special Servicer may reasonably request within five (5) Business Days of
receiving such written notice and (ii) the Special Servicer has consented to
such action (such consent to be deemed given if the Special Servicer does not
object to such action within 10 Business Days after receiving such additional
information from the Master Servicer (or, if it did not request additional
information, within 10 Business Days after receiving such written notice)); and
provided, further, that neither the Master Servicer nor the Special Servicer
shall waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause (or, if it involves any
Mortgage Loan that, individually or together with all other Mortgage Loans, if
any, that are in the same Cross-Collateralized Group as such Mortgage Loan or
have the same Borrower as such Mortgage Loan or have Borrowers that are known to
be affiliated with the Borrower under such Mortgage Loan, represents 5% or more
of the then aggregate principal balance of the Mortgage Pool, under any related
"due-on-sale" clause) until it has received written confirmation from each
Rating Agency that such action would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates; and provided, further, that neither
the Master Servicer nor the Special Servicer shall (to the extent that it is
within the control thereof to prohibit such event) consent to the transfer of
any Mortgaged Property which secures a Cross-Collateralized Group unless all of
the Mortgaged Properties securing such Cross-Collateralized Group are
transferred simultaneously by the respective Borrower. After having made any
determination to waive the Trust's rights under a "due-on-sale" or "due-on
encumbrance" clause, the Master Servicer or the Special Servicer, as
appropriate, shall deliver to the Trustee and the other such party an Officer's
Certificate setting forth the basis for such determination. The Master Servicer
and the Special Servicer shall each provide the other with all such information
as each may reasonably request in order to make such determination. Neither the
Master Servicer nor the Special Servicer
-93-
<PAGE>
shall waive any assumption fee or assumption application fee, to the extent it
would constitute additional compensation for the other such party, without the
consent of such other party.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 3.24, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties and other collateral securing such of the Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, including
pursuant to Section 3.20; provided that neither the Master Servicer nor the
Special Servicer shall, with respect to any Designated ARD Loan after its
Anticipated Repayment Date, take any enforcement action with respect to the
payment of Additional Interest (other than the making of requests for its
collection) unless (i) the taking of an enforcement action with respect to the
payment of other amounts due under such Mortgage Loan is, in the good faith and
reasonable judgment of the Special Servicer, and without regard to such
Additional Interest, also necessary, appropriate and consistent with the
Servicing Standard or (ii) all other amounts due under such Mortgage Loan have
been paid, the payment of such Additional Interest has not been forgiven in
accordance with Section 3.20 and, in the good faith and reasonable judgment of
the Special Servicer, the Liquidation Proceeds expected to be recovered in
connection with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated Advance Interest. In
connection with the foregoing, in the event of a default under any Mortgage Loan
or Cross-Collateralized Group that is secured by real properties located in
multiple states, and such states include California or another state with a
statute, rule or regulation comparable to California's "one action rule", then
the Special Servicer shall consult Independent counsel regarding the order and
manner in which the Special Servicer should foreclose upon or comparably proceed
against such properties. The reasonable costs of such consultation shall be paid
by, and reimbursable to, the Special Servicer as a Servicing Advance. In
addition, all costs and expenses incurred in any such proceedings shall be paid
by, and reimbursable to, the Special Servicer as a Servicing Advance. Nothing
contained in this Section 3.09 shall be construed so as to require the Special
Servicer, on behalf of the Trust, to make a bid on any Mortgaged Property at a
foreclosure sale or similar proceeding that is in excess of the fair market
value of such property, as determined by the Special Servicer taking into
account the factors described in Section 3.18(e) and the results of any
appraisal obtained pursuant to the following sentence or otherwise, all such
bids to be made in a manner consistent with the Servicing Standard. If and when
the Special Servicer deems it necessary in accordance with the Servicing
Standard for purposes of establishing the fair market value of any Mortgaged
Property securing a defaulted Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, the Special Servicer is authorized to have an
Appraisal completed with respect to such property (the cost of which appraisal
shall be covered by, and be reimbursable as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust under such circumstances, in such manner or pursuant to such terms as
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (unless the
portion of such REO Property that is not treated as "foreclosure property" and
that is held by REMIC I at any given time constitutes not more than a de minimis
amount of the assets of REMIC I within the meaning of Treasury regulation
Section 1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section
3.17(a), subject the Trust to the imposition of any federal income taxes under
the Code. In addition, the Special Servicer shall not acquire any personal
property on behalf of the Trust pursuant to this Section 3.09 unless either:
-94-
<PAGE>
(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be covered by, and reimbursable as, a
Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not result in an Adverse REMIC
Event with respect to any REMIC Pool.
(c) Notwithstanding the foregoing provisions of this Section
3.09, neither the Master Servicer nor the Special Servicer shall, on behalf of
the Trust, obtain title to a Mortgaged Property by foreclosure, deed in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable, good faith judgment of the Special
Servicer, exercised in accordance with the Servicing Standard, be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless:
(i) the Special Servicer has previously determined in
accordance with the Servicing Standard, based on a Phase I
Environmental Assessment (and any additional environmental testing
that the Special Servicer deems necessary and prudent) of such
Mortgaged Property conducted by an Independent Person who regularly
conducts Phase I Environmental Assessments and performed during the
twelve (12) month period preceding any such acquisition of title or
other action, that the Mortgaged Property is in compliance with
applicable environmental laws and regulations and there are no
circumstances or conditions present at the Mortgaged Property relating
to the use, management or disposal of Hazardous Materials for which
investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws
and regulations; or
(ii) in the event that the determination described in clause
(c)(i) above cannot be made, the Special Servicer has previously
determined in accordance with the Servicing Standard, on the same
basis as described in clause (c)(i) above, that it would maximize the
recovery to the Certificateholders on a present value basis (the
relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related
Mortgage Rate) to acquire title to or possession of the Mortgaged
Property and to take such remedial, corrective and/or other further
actions as are necessary to bring the Mortgaged Property into
compliance with applicable environmental laws and regulations and to
appropriately address any of the circumstances and conditions referred
to in clause (c)(i) above.
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer and the Controlling Class Representative, specifying all of the bases
for such determination, such Officer's Certificate to be accompanied by all
related environmental reports. The cost of such Phase I Environmental Assessment
and any such additional environmental testing shall be advanced by the Master
Servicer at the direction of the Special Servicer given in accordance with the
Servicing Standard; provided, however, that the Master Servicer shall not be
obligated in connection therewith to advance any funds which, if so advanced,
would constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall
be subject to reimbursement as Servicing Advances in accordance with Section
3.05(a).
-95-
<PAGE>
The cost of any remedial, corrective or other further action contemplated by
clause (ii) of the preceding paragraph shall be payable out of the Collection
Account pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and
(ii) of the first sentence of Section 3.09(c) has been satisfied with respect to
any Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the
Master Servicer and the Controlling Class Representative monthly in writing as
to any actions taken by the Special Servicer with respect to any Mortgaged
Property as to which neither of the conditions set forth in clauses (i) and (ii)
of the first sentence of Section 3.09(c) has been satisfied, in each case until
the earliest to occur of satisfaction of either of such conditions, release of
the lien of the related Mortgage on such Mortgaged Property and the related
Mortgage Loan's becoming a Corrected Mortgaged Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the Mortgage Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) The Special Servicer, with the assistance of the Master
Servicer, shall prepare and file the information returns with respect to the
receipt of any mortgage interest received in a trade or business from
individuals, the reports of foreclosures and abandonments of any Mortgaged
Property and the information returns relating to cancellation of indebtedness
income with respect to any Mortgaged Property required by Section 6050H, 6050J
and 6050P of the Code and shall deliver to the Trustee and the REMIC
Administrator an Officer's Certificate stating that such reports have been
filed. Such information returns and reports shall be in form and substance
sufficient to meet the reporting requirements imposed by Sections 6050H, 6050J
and 6050P of the Code. The Master Servicer shall promptly provide to the Special
Servicer on a timely basis all information in the Master Servicer's possession
to be included in such reports and information returns.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Mortgage Loan or REO Property, it shall
promptly notify the Trustee, the Master Servicer and the Controlling Class
Representative. The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each such Final Recovery Determination (if any) and
the basis thereof. Each such Final Recovery Determination (if any) shall be
evidenced by an Officer's Certificate delivered to the Trustee and the Master
Servicer no later than the third Business Day following such Final Recovery
Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer of a notification that payment in full shall be
escrowed in a manner customary for such purposes, the Master Servicer shall
promptly so notify the Trustee and request delivery to it of the related
Mortgage File (such notice and request to be effected by delivering to the
Trustee a Request for Release in the form of Exhibit D-1 attached hereto, which
Request for Release shall be accompanied by the form of any release or discharge
-96-
<PAGE>
to be executed by the Trustee and shall include a statement to the effect that
all amounts received or to be received in connection with such payment which are
required to be deposited in the Collection Account pursuant to Section 3.04(a)
have been or will be so deposited). Upon receipt of such Request for Release,
the Trustee shall promptly release, or cause any related Custodian to release,
the related Mortgage File to the Master Servicer and shall deliver to the Master
Servicer such accompanying release or discharge, duly executed. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Collection Account or the Distribution
Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer and receipt from the Master Servicer of a Request
for Release in the form of Exhibit D-1 attached hereto signed by a Servicing
Officer thereof, or upon request of the Special Servicer and receipt from the
Special Servicer of a Request for Release in the form of Exhibit D-2 attached
hereto, the Trustee shall release, or cause any related Custodian to release,
such Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or portion
thereof) to the Trustee or the related Custodian, or upon the Special Servicer's
delivery to the Trustee of an Officer's Certificate stating that (i) such
Mortgage Loan was liquidated and all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Collection Account pursuant to Section 3.04(a) have been or will be so deposited
or (ii) such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be returned by the Trustee to the Master Servicer or the Special
Servicer, as applicable.
(c) Within five (5) Business Days of the Special Servicer's
request therefor (or, if the Special Servicer notifies the Trustee of an
exigency, within such shorter period as is reasonable under the circumstances),
the Trustee shall execute and deliver to the Special Servicer, in the form
supplied to the Trustee by the Special Servicer, any court pleadings, requests
for trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Borrower on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity or to defend any legal action or counterclaim filed against the Trust,
the Master Servicer or the Special Servicer; provided that the Trustee may
alternatively execute and deliver to the Special Servicer, in the form supplied
to the Trustee by the Special Servicer, a limited power of attorney issued in
favor of the Special Servicer and empowering the Special Servicer to execute and
deliver any or all of such pleadings or documents on behalf of the Trustee
(however, the Trustee shall not be liable for any misuse of such power of
attorney by the Special Servicer). Together with such pleadings or documents (or
such power of attorney empowering the Special Servicer to execute the same on
behalf of the Trustee), the Special Servicer shall deliver to the Trustee an
Officer's Certificate requesting that such pleadings or documents (or such power
of attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of the Trustee) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
-97-
<PAGE>
SECTION 3.11. Master Servicing and Special Servicing
Compensation; Interest on and Reimbursement of
Servicing Advances; Payment of Certain
Expenses; Obligations of the Trustee and any
Fiscal Agent regarding Back-up Servicing
Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Mortgage Loan) and each
REO Mortgage Loan. As to each such Mortgage Loan and REO Mortgage Loan, for each
calendar month (commencing with July 1999) or any applicable portion thereof,
the Servicing Fee shall accrue (on a 30/360 Basis) at the Master Servicing Fee
Rate on the same principal amount as interest accrues from time to time during
such calendar month (or portion thereof) on such Mortgage Loan or is deemed to
accrue from time to time during such calendar month (or portion thereof) on such
REO Mortgage Loan, as the case may be. The Master Servicing Fee with respect to
any Mortgage Loan or REO Mortgage Loan shall cease to accrue if a Liquidation
Event occurs in respect thereof. Master Servicing Fees earned with respect to
any Mortgage Loan or REO Mortgage Loan shall be payable monthly from payments of
interest on such Mortgage Loan and REO Revenues allocable as interest on such
REO Mortgage Loan, as the case may be. The Master Servicer shall be entitled to
recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO
Mortgage Loan out of the portion any related Insurance Proceeds or Liquidation
Proceeds allocable as interest on such Mortgage Loan or REO Mortgage Loan, as
the case may be. The right to receive the Master Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Master Servicer's responsibilities and obligations under this Agreement.
The Master Servicer shall remit to the related Designated
Sub-Servicer, the applicable Additional Servicing Fee with respect to each
Additional Servicing Fee Mortgage Loan (including each such Mortgage Loan that
becomes a Specially Serviced Mortgage Loan or an REO Mortgage Loan) for so long
as the related Designated Sub-Servicer has not been terminated without a
successor thereto. As to each such Additional Servicing Fee Mortgage Loan and
successor REO Mortgage Loan, for each calendar month (commencing with June 1999)
or any applicable portion thereof, the Additional Servicing Fee shall accrue (on
a 30/360 Basis) at the related Additional Servicing Fee Rate on the same
principal amount as interest accrues from time to time during such calendar
month (or portion thereof) on such Mortgage Loan or is deemed to accrue from
time to time during such calendar month (or portion thereof) on such REO
Mortgage Loan, as the case may be. The Additional Servicing Fee with respect to
any Additional Servicing Fee Mortgage Loan or successor REO Mortgage Loan shall
cease to accrue if a Liquidation Event occurs in respect thereof. Additional
Servicing Fees earned with respect to any Additional Servicing Fee Mortgage Loan
or successor REO Mortgage Loan shall be payable monthly from payments of
interest on such Mortgage Loan and REO Revenues allocable as interest on such
REO Mortgage Loan, as the case may be. The Master Servicer shall recover unpaid
Additional Servicing Fees in respect of any Mortgage Loan or successor REO
Mortgage Loan out of the portion any related Insurance Proceeds or Liquidation
Proceeds allocable as interest on such Mortgage Loan or REO Mortgage Loan, as
the case may be, and pay such amounts to the related Designated Sub-Servicer in
accordance with the terms thereof. The parties hereto acknowledge, and the
Master Servicer hereby agrees, to remit the Additional Servicing Fees received
by it promptly to the applicable Designated Sub-Servicer or Archon, as the case
may be, pursuant to the terms of the applicable Designated Sub-Servicer
Agreement. In the event of a termination of any Designated Sub- Servicer
Agreement, or in the event of the termination of any Designated Sub-Servicer
where no successor has been appointed under the related agreement by Archon, the
Master Servicer will not be entitled to the
-98-
<PAGE>
Additional Servicing Fee with respect to the related Additional Servicing Fee
Mortgage Loan, and the Master Servicer shall remit to Archon the Additional
Servicing Fee with respect to such Additional Servicing Fee Mortgage Loan in
accordance with Section 3.05(a)(iv) hereof.
(b) The Master Servicer shall be entitled to receive the
following items as additional servicing compensation (the following items,
collectively, "Additional Master Servicing Compensation"):
(i) to the extent allocable to any Mortgage Loan for a period
that it is or was a Performing Mortgage Loan, any Net Default Charges
collected on such Mortgage Loan;
(ii) 50% of any and all assumption fees, modification fees and
extension fees actually paid by a Borrower with respect to a
Performing Mortgage Loan;
(iii) 100% of any and all charges for beneficiary statements
or demands, amounts collected for checks returned for insufficient
funds and other loan processing fees actually paid by a Borrower with
respect to a Performing Mortgage Loan;
(iv) 50% (or, if the Master Servicer rejects the proposed
assumption without involvement of the Special Servicer, 100%) of any
and all assumption application fees actually paid by a Borrower with
respect to a Performing Mortgage Loan;
(v) any Prepayment Interest Excesses collected on the Mortgage
Loans; and
(vi) interest or other income earned on deposits in the
Investment Accounts maintained by the Master Servicer, in accordance
with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to any such Investment Account for each
Collection Period and, further, in the case of a Servicing Account or
Reserve Account, only to the extent such interest or other income is
not required to be paid to any Borrower under applicable law or under
the related Mortgage).
To the extent that amounts described in clauses (ii), (iii)
and (iv) of the preceding paragraph are collected by the Special Servicer with
respect to Performing Mortgage Loans, the Special Servicer shall promptly pay
such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Mortgage Loan and each REO Mortgage Loan. As
to each Specially Serviced Mortgage Loan and REO Mortgage Loan, for any
particular calendar month or applicable portion thereof, the Special Servicing
Fee shall accrue (on a 30/360 Basis) at the Special Servicing Fee Rate on the
Stated Principal Balance of such Specially Serviced Mortgage Loan or REO
Mortgage Loan, as the case may be, outstanding immediately following the
Distribution Date in such calendar month. The Special Servicing Fee with respect
to any Specially Serviced Mortgage Loan or REO Mortgage Loan shall cease to
accrue as of the date a Liquidation Event occurs in respect thereof or, in the
case of a Specially Serviced Mortgage Loan, as of the date it becomes a
Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be
payable monthly out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Collection Account pursuant to Section 3.05(a).
-99-
<PAGE>
As further compensation for its activities hereunder, the
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Mortgage Loan. As to each Corrected Mortgage Loan, the Workout
Fee shall be payable out of, and shall be calculated by application of the
Workout Fee Rate to, each collection of interest (other than Additional Interest
and Default Interest) and principal received on such Mortgage Loan for so long
as it remains a Corrected Mortgage Loan (net of any portion of such collection
payable or reimbursable to the Master Servicer, the Special Servicer, the
Trustee or any Designated Sub-Servicer or Archon, as applicable, for any related
unpaid or unreimbursed Master Servicing Fees, Additional Servicing Fees and/or
Advances) received on such Mortgage Loan for so long as it remains a Corrected
Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will
cease to be payable if a Servicing Transfer Event occurs with respect thereto or
if the related Mortgaged Property becomes an REO Property; provided that a new
Workout Fee would become payable if and when such Mortgage Loan again became a
Corrected Mortgage Loan. If the Special Servicer is terminated (other than for
cause) or resigns in accordance with Section 6.04, it shall retain the right to
receive any and all Workout Fees payable in respect of Mortgage Loans that
became Corrected Mortgage Loans during the period that it acted as Special
Servicer and that were still Corrected Mortgage Loans at the time of such
termination or resignation (and the successor Special Servicer shall not be
entitled to any portion of such Workout Fees), in each case until the Workout
Fee for any such loan ceases to be payable in accordance with the preceding
sentence.
As further compensation for its activities hereunder, the
Special Servicer shall also be entitled to receive a Liquidation Fee with
respect to each Specially Serviced Mortgage Loan or REO Property as to which it
receives any full or discounted payoff from the related Borrower or any
Liquidation Proceeds or Insurance Proceeds (other than in connection with the
purchase of any such Specially Serviced Mortgage Loan or REO Property by the
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder pursuant to Section 3.18 or Section 9.01, or the purchase or
replacement thereof by Union Capital pursuant to the Union Capital Agreement or
the purchase or replacement thereof by a Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase and Sale Agreement). As to each such Specially
Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable out
of, and shall be calculated by application of the Liquidation Fee Rate to, any
such full or discounted payoff, Liquidation Proceeds and/or Insurance Proceeds
received or collected in respect thereof (other than any portion of such payment
or proceeds that represents Additional Interest, Default Interest, a Prepayment
Premium or a Yield Maintenance Charge, and net of any portion of such payment or
proceeds payable or reimbursable to the Master Servicer, the Special Servicer,
the Trustee or any Designated Sub-Servicer or Archon, as applicable, to cover
any related unpaid or unreimbursed Master Servicing Fees, Additional Servicing
Fees and/or Advances). The Liquidation Fee with respect to any such Specially
Serviced Mortgage Loan will not be payable if such Mortgage Loan becomes a
Corrected Mortgage Loan. Notwithstanding anything herein to the contrary, no
Liquidation Fee will be payable in connection with the receipt of, or out of,
Liquidation Proceeds collected as a result of the purchase or substitution of
any Specially Serviced Mortgage Loan or REO Property described in the
parenthetical to the first sentence of this paragraph.
The Special Servicer's right to receive the Special Servicing
Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under this Agreement.
-100-
<PAGE>
(d) The Special Servicer shall be entitled to receive the
following items as additional special servicing compensation (the following
items, collectively, the "Additional Special Servicing Compensation"):
(i) to the extent allocable to any Mortgage Loan for the
period that it is or was a Specially Serviced Mortgage Loan or
allocable to any REO Mortgage Loan, any Net Default Charges collected
on such Mortgage Loan or REO Mortgage Loan;
(ii) any assumption fees, assumption application fees,
modification fees, extension fees, charges for beneficiary statements
or demands and amounts collected for checks returned for insufficient
funds that are actually received on or with respect to Specially
Serviced Mortgage Loans or REO Mortgage Loans;
(iii) 50% of any assumption fees, modification fees and
extension fees that are actually paid by a Borrower with respect to a
Performing Mortgage Loan;
(iv) if the related assumption has been submitted to the
Special Servicer for review, 50% of any assumption application fees
that are actually paid by a Borrower with respect to a Performing
Mortgage Loan; and
(v) interest or other income earned on deposits in the REO
Account, if established, in accordance with Section 3.06(b) (but only
to the extent of the Net Investment Earnings, if any, with respect to
the REO Account for each Collection Period).
To the extent that amounts described in clause (ii) of the
preceding paragraph are collected by the Master Servicer with respect to
Specially Serviced Mortgage Loans, the Master Servicer shall promptly pay such
amounts to the Special Servicer and shall not be required to deposit such
amounts in the Collection Account pursuant to Section 3.04(a).
(e) The Master Servicer and the Special Servicer shall each be
required (subject to Section 3.11(h) below) to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including, without limitation, payment of any amounts due and owing to any of
Sub- Servicers retained by it and the premiums for any blanket policy or the
standby fee or similar premium for any master force place policy obtained by it
insuring against hazard losses pursuant to Section 3.07(b)), if and to the
extent such expenses are not payable directly out of the Collection Account, the
Servicing Accounts, the Reserve Accounts or the REO Account, and neither the
Master Servicer nor the Special Servicer shall be entitled to reimbursement for
any such expense incurred by it except as expressly provided in this Agreement.
If the Master Servicer is required to make any Servicing Advance hereunder at
the discretion of the Special Servicer in accordance with Section 3.19 or
otherwise, the Special Servicer shall promptly provide the Master Servicer with
such documentation regarding the subject Servicing Advance as the Master
Servicer may reasonably request.
-101-
<PAGE>
(f) If the Master Servicer or Special Servicer is required
under this Agreement to make a Servicing Advance, but neither does so within
fifteen (15) days after such Advance is required to be made, the Trustee shall,
if it has actual knowledge of such failure on the part of the Master Servicer or
Special Servicer, as the case may be, give notice of such failure, as
applicable, to the Master Servicer and the Special Servicer. If such Advance is
not made by the Master Servicer or the Special Servicer within three (3)
Business Days after such notice, then (subject to Section 3.11(h) below) the
Trustee or a Fiscal Agent appointed thereby shall make such Advance. If any
Fiscal Agent makes any such Servicing Advance, the Trustee shall be deemed not
to be in default under this Agreement for failing to do so.
(g) The Master Servicer, the Special Servicer, the Trustee and
any Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each Servicing
Advance made thereby (with its own funds), and compounded monthly, for so long
as such Servicing Advance is outstanding. Such compound interest shall be
payable: (i) at any time, out of Default Charges collected on or in respect of
the particular Mortgage Loan or REO Property as to which such Servicing Advance
relates; and (ii) to the extent that such Default Charges are insufficient, but
only with respect to that portion of the related Servicing Advance that has been
or is being reimbursed pursuant to this Agreement, out of general collections on
the Mortgage Loans and REO Properties on deposit in the Collection Account. The
Master Servicer shall reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as appropriate, for any Servicing Advance made by any such Person
as soon as practicable after funds available for such purpose are deposited in
the Collection Account.
(h) Notwithstanding anything to the contrary set forth herein,
none of the Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent shall be required to make any Servicing Advance that it determines in its
reasonable, good faith judgment would constitute a Nonrecoverable Servicing
Advance. The determination by any Person with an obligation hereunder to make
Servicing Advances that it has made a Nonrecoverable Servicing Advance or that
any proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be made by such Person in its reasonable, good faith
judgment and shall be evidenced by an Officer's Certificate delivered promptly
to the Depositor and the Trustee (unless it is the Person making such
determination), which shall provide a copy thereof to the Controlling Class
Representative, setting forth the basis for such determination, accompanied by a
copy of an Appraisal of the related Mortgaged Property or REO Property performed
within the twelve (12) months preceding such determination, and further
accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that such Person may have obtained and
that support such determination. Notwithstanding the foregoing, the Trustee and
any Fiscal Agent shall be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the Master Servicer or the Special
Servicer with respect to a particular Servicing Advance, and the Master Servicer
and the Special Servicer shall each be entitled to conclusively rely on any
determination of nonrecoverability that may have been made by the other such
party with respect to a particular Servicing Advance. A copy of any such
Officer's Certificate (and accompanying information) of the Master Servicer
shall also be delivered promptly to the Special Servicer, a copy of any such
Officer's Certificate (and accompanying information) of the Special Servicer
shall also be promptly delivered to the Master Servicer, and a copy of any such
Officer's Certificates (and accompanying information) of the Trustee or the
Fiscal Agent shall also be promptly delivered to the Master Servicer and the
Special Servicer.
-102-
<PAGE>
(i) Notwithstanding anything to the contrary set forth herein,
the Master Servicer shall (at the direction of the Special Servicer if a
Specially Serviced Mortgage Loan or an REO Property is involved) pay directly
out of the Collection Account any servicing expense that, if paid by the Master
Servicer or the Special Servicer, would constitute a Nonrecoverable Servicing
Advance; provided that the Master Servicer (or the Special Servicer, if a
Specially Serviced Mortgage Loan or an REO Property is involved) has determined
in accordance with the Servicing Standard that making such payment is in the
best interests of the Certificateholders (as a collective whole), as evidenced
by an Officer's Certificates delivered promptly to the Depositor and the
Trustee, which shall provide a copy thereof to the Controlling Class
Representative, setting forth the basis for such determination and accompanied
by any information that such Person may have obtained that supports such
determination. A copy of any such Officer's Certificate (and accompanying
information) of the Master Servicer shall also be delivered promptly to the
Special Servicer, and a copy of any such Officer's Certificate (and accompanying
information) of the Special Servicer shall also be promptly delivered to the
Master Servicer.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be
performed a physical inspection of a Mortgaged Property as soon as practicable
(but in any event not later than sixty (60) days) after the related Mortgage
Loan becomes a Specially Serviced Mortgage Loan and at least once per calendar
year thereafter for so long as such Mortgage Loan remains a Specially Serviced
Mortgage Loan or if such Mortgaged Property becomes an REO Property; provided
that the Special Servicer shall be entitled to reimbursement of the reasonable
and direct out-of-pocket expenses incurred by it in connection therewith as
Servicing Advances. Beginning in 2000, the Master Servicer shall at its expense
perform or cause to be performed an inspection of each Mortgaged Property at
least once per calendar year (or, in the case of each Mortgage Loan with an
unpaid principal balance of under $2,000,000, once every two years), if the
Special Servicer has not already done so during that period pursuant to the
preceding sentence. The Master Servicer and the Special Servicer shall each
prepare a written report of each such inspection performed by it or on its
behalf that sets forth in detail the condition of the Mortgaged Property and
that specifies the occurrence or existence of: (i) any sale, transfer or
abandonment of the Mortgaged Property of which the Master Servicer or Special
Servicer, as applicable, is aware, (ii) any change in the condition, occupancy
or value of the Mortgaged Property that the Master Servicer or the Special
Servicer, as applicable, in accordance with the Servicing Standard, considers
material, or (iii) any waste committed on the Mortgaged Property that the Master
Servicer or the Special Servicer, as the case may be, in accordance with the
Servicing Standard, considers material. The Master Servicer and the Special
Servicer shall each deliver to the Trustee, the Depositor and each other a copy
(or image in suitable electronic media) of each such written report prepared by
it within sixty (60) days of completion of the related inspection. The Trustee
shall, upon request and to the extent such items have been delivered to the
Trustee by the Master Servicer, deliver to the Underwriters, the related
Mortgage Loan Seller, the Controlling Class Representative, any
Certificateholder or, to the extent the Trustee has in accordance with Section
5.06(b) confirmed the Ownership Interest in Certificates held thereby, any
Certificate Owner, a copy (or image in suitable electronic media) of each such
written report prepared by the Master Servicer or the Special Servicer.
-103-
<PAGE>
(b) The Special Servicer, in the case of any Specially
Serviced Mortgage Loan, and the Master Servicer, in the case of each Performing
Mortgage Loan, shall make reasonable efforts to collect promptly from each
related Borrower quarterly and annual operating statements, budgets and rent
rolls of the related Mortgaged Property, and financial statements of such
Borrower, whether or not delivery of such items is required pursuant to the
terms of the related Mortgage. In addition, the Special Servicer shall cause
quarterly and annual operating statements, budgets and rent rolls to be
regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation. The Master Servicer and the Special
Servicer shall each deliver copies of all of the foregoing items so collected
thereby to the Trustee, the Depositor and each other, in each case within sixty
(60) days of its receipt thereof. The Trustee shall, upon request, deliver
copies of the foregoing items to the Underwriters, the Controlling Class
Representative, the related Mortgage Loan Seller and any Certificateholder or,
to the extent the Trustee has in accordance with Section 5.06(b) confirmed the
Ownership Interest in Certificates held thereby, any Certificate Owner, a copy
(or image in suitable electronic media) of each such written report prepared by
the Master Servicer or the Special Servicer.
Within forty-five (45) days after receipt by the Master
Servicer, as to Performing Mortgage Loans, and within twenty (20) days after
receipt by the Special Servicer, as to Specially Serviced Mortgage Loans, of any
annual operating statements or rent rolls with respect to any Mortgaged Property
or REO Property, the Master Servicer or the Special Servicer, as applicable,
shall, based upon such operating statements or rent rolls, prepare (or, if
previously prepared, update) the written analysis of operations (the "Operating
Statement Analysis Report"), and the Special Servicer shall remit each Operating
Statement Analysis Report prepared by it, together with the underlying operating
statements and rent rolls, to the Master Servicer in a format reasonably
acceptable to the Master Servicer. All Operating Statement Analysis Reports
shall be maintained by the Master Servicer with respect to each Mortgaged
Property and REO Property, and the Master Servicer shall forward copies thereof
(in each case, promptly following the initial preparation and each material
revision thereof) to the Trustee and the Special Servicer, together with the
related operating statements or rent rolls. The Trustee shall, upon request and
to the extent such items have been delivered to the Trustee by the Master
Servicer, deliver to the Underwriters, the related Mortgage Loan Seller, the
Controlling Class Representative, any Certificateholder or, to the extent the
Trustee has in accordance with Section 5.06(b) confirmed the Ownership Interest
in the Certificates held thereby, any Certificate Owner, a copy of such
Operating Statement Analysis (or update thereof) and the related operating
statement or rent rolls. The Master Servicer shall maintain an Operating
Statement Analysis Report with respect to each Mortgaged Property and REO
Property. Each such Operating Statement Analysis Report shall be substantially
in the form of Exhibit E-8 attached hereto (or, at the discretion of the Master
Servicer, provided that no less information is provided than is set forth in
Exhibit E-8, in a CSSA format).
Within forty-five (45) days after receipt by the Master
Servicer or twenty (20) days after receipt by the Special Servicer of any annual
operating statements with respect to any Mortgaged Property or REO Property, as
applicable, each of the Master Servicer and the Special Servicer shall prepare
or update (and, in the case of the Special Servicer, forward within such 20-day
period to the Master Servicer in an electronic format reasonably acceptable to
the Master Servicer) an NOI Adjustment Worksheet for such Mortgaged Property or
REO Property (with the annual operating statements attached thereto as an
exhibit).
-104-
<PAGE>
(c) Not later than 12:00 p.m. (New York City time) on the
first Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer and the
Controlling Class Representative the following reports (or data files relating
to reports of the Master Servicer) with respect to the Specially Serviced
Mortgage Loans and any REO Properties, providing the required information as of
such Determination Date: (i) a CSSA Property File; and (ii) a CSSA Loan Periodic
Update File. At or before 12:00 p.m. (New York City time) on the first Business
Day following each Determination Date, the Special Servicer shall prepare and
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Mortgage Loans and any REO Properties,
providing the information required of the Special Servicer in an electronic
format reasonably acceptable to the Master Servicer as of such Determination
Date: (i) a Delinquent Loan Status Report; (ii) a Comparative Financial Status
Report; (iii) an Historical Loss Estimate Report; (iv) an Historical Loan
Modification Report; and (v) an REO Status Report.
(d) Not later than 3:30 p.m. (New York City time) on the
second Business Day after each Determination Date, the Master Servicer shall
prepare (if and to the extent necessary) and deliver or cause to be delivered to
the Trustee data files relating to the following reports: (i) to the extent
received at the time required, the most recent Delinquent Loan Status Report,
Historical Loss Estimate Report, Historical Loan Modification Report and REO
Status Report received from the Special Servicer pursuant to Section 3.12(c);
(ii) the most recent CSSA Property File, CSSA Loan Periodic Update File and
Comparative Financial Status Report (in each case combining the reports prepared
by the Special Servicer and the Master Servicer); and (iii) a Watch List Report
with information that is current as of such Determination Date.
(e) The Special Servicer shall deliver to the Master Servicer
the reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Trustee the reports set forth in Section 3.12(d),
in an electronic format reasonably acceptable to the Special Servicer, the
Master Servicer and the Trustee. The Master Servicer may, absent manifest error,
conclusively rely on the reports to be provided by the Special Servicer pursuant
to Section 3.12(b) and Section 3.12(c). The Trustee may, absent manifest error,
conclusively rely on the reports to be provided by the Master Servicer pursuant
to Section 3.12(d). In the case of information or reports to be furnished by the
Master Servicer to the Trustee pursuant to Section 3.12(d), to the extent that
such information or reports are, in turn, based on information or reports to be
provided by the Special Servicer pursuant to Section 3.12(b) or Section 3.12(c)
and to the extent that such reports are to be prepared and delivered by the
Special Servicer pursuant to Section 3.12(b) or Section 3.12(c), the Master
Servicer shall have no obligation to provide such information or reports to the
Trustee until it has received the requisite information or reports from the
Special Servicer, and the Master Servicer shall not be in default hereunder due
to a delay in providing the reports required by Section 3.12(d) caused by the
Special Servicer's failure to timely provide any information or report required
under Section 3.12(b) or Section 3.12(c) of this Agreement.
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master Servicer or the
Special Servicer as the case may be, would violate any applicable law or any
provision of a Mortgage Loan document prohibiting disclosure of information with
respect to the Mortgage Loans or Mortgaged Properties or would constitute a
waiver of the attorney-client privilege on behalf of the Trust. The Master
Servicer and Special Servicer may disclose any such information or any
additional information to any Person so long as such disclosure is consistent
with
-105-
<PAGE>
applicable law and the Servicing Standard. The Master Servicer or the Special
Servicer may affix to any information provided by it any disclaimer it deems
appropriate in its reasonable discretion (without suggesting liability on the
part of any other party hereto).
(g) The Depositor shall provide to the Master Servicer and the
Trustee the initial data (as of the Cut-Off Date or the most recent earlier date
for which such data is available) contemplated by the CSSA Loan Set-up File, the
CSSA Loan Periodic Update File, the Operating Statement Analysis Report and the
CSSA Property File.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall
deliver to the Trustee, the Depositor, the Underwriters, the Controlling Class
Representative and each other, on or before March 15 of each year, beginning in
2000, an Officer's Certificate (the "Annual Performance Certification") stating,
as to the signer thereof, that (i) a review of the activities of the Master
Servicer or the Special Servicer, as the case may be, during the preceding
calendar year and of its performance under this Agreement has been made under
such officer's supervision, (ii) to the best of such officer's knowledge, based
on such review, the Master Servicer or the Special Servicer, as the case may be,
has fulfilled all of its obligations under this Agreement in all material
respects throughout such year (or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof), and (iii) the Master Servicer or the
Special Servicer, as the case may be, has received no notice regarding the
qualification, or challenging the status, of any REMIC Pool as a REMIC or of any
Grantor Trust Pool as a Grantor Trust from the IRS or any other governmental
agency or body (or, if it has received any such notice, specifying the details
thereof); provided that neither the Master Servicer nor the Special Servicer
shall be required to deliver its Annual Performance Certification until April 15
in any given year so long as it has received written confirmation from the
Depositor that a Report on Form 10-K is not required to be filed in respect of
the Trust for the preceding calendar year.
SECTION 3.14. Reports by Independent Public Accountants.
On or before March 15 of each year, beginning in 2000, each of
the Master Servicer and the Special Servicer at its expense shall cause a firm
of independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Depositor, the Underwriters and each other, to the
effect that such firm has examined the servicing operations of the Master
Servicer or the Special Servicer, as the case may be, for the previous calendar
year and that, on the basis of such examination, conducted substantially in
compliance with USAP, such firm confirms that the Master Servicer or the Special
Servicer, as the case may be, has complied during such previous calendar year
with the minimum servicing standards identified in USAP in all material
respects, except for such significant exceptions or errors in records that, in
the opinion of such firm, USAP requires it to report; provided that neither the
Master Servicer nor the Special Servicer shall be required to cause the delivery
of its Annual Accountants' Report until April 15 in any given year so long as it
has received written confirmation from the Depositor that a Report on Form 10-K
is not required to be filed in respect of the Trust for the preceding calendar
year. In rendering its report such firm may rely, as to matters relating to the
direct servicing of securitized commercial and multifamily mortgage loans by
sub-servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted
-106-
<PAGE>
in accordance with the same standards (rendered within one (1) year of such
report) with respect to those sub-servicers.
The Master Servicer and the Special Servicer will each
reasonably cooperate with the Depositor in providing any other form of
accountants' reports as may be required by the Commission in connection with the
Commission's issuance of a no-action letter relating to the Depositor's
reporting requirements in respect of the Trust pursuant to the Exchange Act, and
the reasonable additional costs of providing such other forms of accountants'
reports shall be borne by the Depositor.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall
afford to the Trustee, any Fiscal Agent, the Depositor, the Underwriters, the
Mortgage Loan Sellers, each Rating Agency and the Controlling Class
Representative, and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder or
Certificate Owner, access to any records regarding the Mortgage Loans and the
servicing thereof within its control, except to the extent it is prohibited from
doing so by applicable law, the terms of the Mortgage Loan documents or contract
entered into prior to the Closing Date or to the extent such information is
subject to a privilege under applicable law to be asserted on behalf of the
Certificateholders. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Master Servicer or the Special Servicer, as the case may be, designated
by it. The Master Servicer and the Special Servicer shall each be entitled to
affix a reasonable disclaimer to any information provided by it for which it is
not the original source (without suggesting liability on the part of any other
party hereto).
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee, on behalf of
the Certificateholders. The Special Servicer, on behalf of the Trust, shall sell
any REO Property by the end of the third calendar year following the year in
which the Trust acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies, more
than sixty (60) days prior to the expiration of such liquidation period, and is
granted an extension of time (an "REO Extension") by the IRS to sell such REO
Property or (ii) obtains for the Trustee and the REMIC Administrator an Opinion
of Counsel, addressed to the Trustee and the REMIC Administrator, to the effect
that the holding by the Trust of such REO Property subsequent to the end of the
third calendar year following the year in which such acquisition occurred will
not result in an Adverse REMIC Event with respect to any REMIC Pool. Regardless
of whether the Special Servicer applies for or is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel referred to in clause (ii) of such sentence, the Special
Servicer shall act in accordance with the Servicing Standard to liquidate such
REO Property on a timely basis. If the Special Servicer is granted such REO
Extension or obtains such Opinion of Counsel, the Special Servicer shall sell
such REO Property within such extended period as is permitted by such REO
Extension or contemplated by such Opinion of Counsel, as the case may be. Any
expense incurred by the Special Servicer in connection with its applying for and
being granted the REO Extension contemplated by clause (i) of the third
preceding sentence or its obtaining the Opinion of Counsel contemplated by
clause (ii) of the third preceding sentence, shall be covered by, and be
reimbursable as, a Servicing Advance.
-107-
<PAGE>
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), to be held on behalf of the Trustee in trust
for the benefit of the Certificateholders, for the retention of revenues and
other proceeds derived from each REO Property. Each account that constitutes the
REO Account shall be an Eligible Account. The Special Servicer shall deposit, or
cause to be deposited, in the REO Account, upon receipt, all REO Revenues,
Insurance Proceeds and Liquidation Proceeds received in respect of an REO
Property. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from the REO Account to pay itself, as Additional Special Servicing
Compensation, interest and investment income earned in respect of amounts held
in the REO Account as provided in Section 3.06(b) (but only to the extent of the
Net Investment Earnings, if any, with respect to the REO Account for any
Collection Period). The Special Servicer shall give notice to the other parties
hereto of the location of the REO Account when first established and of the new
location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. Within one (1) Business Day
following the end of each Collection Period, the Special Servicer shall withdraw
from the REO Account and deposit into the Collection Account or deliver to the
Master Servicer (which shall deposit such amounts into the Collection Account)
the aggregate of all amounts received in respect of each REO Property during
such Collection Period, net of any withdrawals made out of such amounts pursuant
to the preceding sentence; provided that the Special Servicer may retain in the
REO Account such portion of such proceeds and collections as may be necessary to
maintain a reserve of sufficient funds for the proper operation, management,
leasing, maintenance and disposition of the related REO Property (including the
creation of a reasonable reserve for repairs, replacements, necessary capital
improvements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items reasonably expected to be incurred during the
following twelve (12) month period.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or (c).
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged
Property securing a defaulted Mortgage Loan, the Special Servicer shall review
the operation of such Mortgaged Property and determine the nature of the income
that would be derived from such property if it were acquired by the Trust. If
the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure
property" within the meaning of the REMIC Provisions or to the tax
imposed on "prohibited transactions" under Section 860F of the Code
(either such tax referred to herein as an "REO Tax"), such Mortgaged
Property may be Directly Operated by the Special Servicer as REO
Property;
-108-
<PAGE>
(ii) Directly Operating such Mortgaged Property as an REO
Property could result in income from such property that would be
subject to an REO Tax, but that a lease of such property to another
party to operate such property, or the performance of some services by
an Independent Contractor with respect to such property, or another
method of operating such property would not result in income subject
to an REO Tax, then the Special Servicer may (provided that in the
judgment of the Special Servicer, exercised in accordance with the
Servicing Standard, it is commercially reasonable) so lease or
otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax
and that no commercially reasonable means exists to operate such
property as REO Property without the Trust incurring or possibly
incurring an REO Tax on income from such property, the Special
Servicer shall deliver to the REMIC Administrator, in writing, a
proposed plan (the "Proposed Plan") to manage such property as REO
Property. Such plan shall include potential sources of income and good
faith estimates of the amount of income from each such source. Within
a reasonable period of time after receipt of such plan, the REMIC
Administrator shall consult with the Special Servicer and shall advise
the Special Servicer of the Trust's federal income tax reporting
position with respect to the various sources of income that the Trust
would derive under the Proposed Plan. In addition, the REMIC
Administrator shall (to the maximum extent reasonably possible) advise
the Special Servicer of the estimated amount of taxes that the Trust
would be required to pay with respect to each such source of income.
After receiving the information described in the two preceding
sentences from the REMIC Administrator, the Special Servicer shall
either (A) implement the Proposed Plan (after acquiring the respective
Mortgaged Property as REO Property) or (B) manage and operate such
property in a manner that would not result in the imposition of an REO
Tax on the income derived from such property.
The Special Servicer's decision as to how each REO Property
shall be managed and operated shall be in accordance with the Servicing
Standard. Neither the Special Servicer nor the REMIC Administrator shall be
liable to the Certificateholders, the Trust, the other parties hereto or each
other for errors in judgment made in good faith in the exercise of their
discretion while performing their respective responsibilities under this Section
3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of a
Defaulted Mortgage Loan or REO Property pursuant to the terms and subject to the
conditions of Section 3.18.
(b) If title to any REO Property is acquired, the Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders solely for the purpose of its disposition and
sale in a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or,
except as contemplated by Section 3.17(a), result in the receipt by any REMIC
Pool of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or in an Adverse REMIC Event with respect to any REMIC
Pool. Except as contemplated by Section 3.17(a), the Special Servicer shall not
enter into any lease, contract or other agreement that causes the Trust to
receive, and (unless required to do so under any lease, contract or agreement to
which the Special Servicer or the Trust may become a party or successor to a
party due to a foreclosure, deed-in-lieu of foreclosure or other similar
exercise of a creditor's rights or remedies with respect to a Mortgage Loan)
shall not cause or allow the Trust to receive, any "net income from foreclosure
property" that is subject to taxation under the REMIC Provisions. Subject to the
foregoing, however, the Special Servicer shall have full power and authority to
do any and all things in connection therewith as are
-109-
<PAGE>
consistent with the Servicing Standard and, consistent therewith, shall withdraw
from the REO Account, to the extent of amounts on deposit therein with respect
to any REO Property, funds necessary for the proper operation, management,
maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain,
lease, sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes contemplated by the preceding
sentence with respect to such REO Property, the Master Servicer shall, at the
direction of the Special Servicer, advance such amounts as are necessary for
such purposes unless the Master Servicer or the Special Servicer determines, in
its reasonable, good faith judgment, that such advances would, if made, be
Nonrecoverable Servicing Advances; provided, however, that the Master Servicer
may in its sole discretion make any such Servicing Advance without regard to
recoverability if it is a necessary fee or expense incurred in connection with
the defense or prosecution of legal proceedings.
(c) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust) shall be reasonable and customary in
consideration of the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor, in a timely
manner, (A) pay all costs and expenses incurred in connection with the
operation and management of such REO Property, including those listed
in Section 3.17(b) above, and (B) remit all related revenues collected
(net of its fees and such costs and expenses) to the Special Servicer
upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating
to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of
its duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of such
REO Property.
-110-
<PAGE>
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. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater that the revenues available from such property, such excess costs shall
be covered by, and be reimbursable as, a Servicing Advance.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the
sale or purchase of, a Mortgage Loan or REO Property only on the terms and
subject to the conditions set forth in this Section 3.18 or as otherwise
expressly provided in or contemplated by Sections 2.02, 2.03 and 9.01.
(b) If the Special Servicer has determined, in its reasonable,
good faith judgment, that any Defaulted Mortgage Loan will become subject to
foreclosure proceedings and that the sale of such Mortgage Loan under the
circumstances provided in this Section 3.18 is in accordance with the Servicing
Standard, then the Special Servicer shall promptly so notify in writing the
Trustee and the Master Servicer, and the Trustee shall, within five (5) days
after receipt of such notice, so notify all the Holders of Certificates of the
Controlling Class. The Majority Controlling Class Certificateholder may, at its
or their option, within thirty (30) days after receipt of such notice, purchase
any such Defaulted Mortgage Loan out of the Trust Fund at a cash price equal to
the applicable Purchase Price. The Purchase Price for any Defaulted Mortgage
Loan purchased under this Section 3.18(b) shall be deposited into the Collection
Account, and the Trustee, upon receipt of an Officer's Certificate from the
Master Servicer to the effect that such deposit has been made, shall release or
cause to be released to the Certificateholder(s) effecting such purchase (or to
its or their designee) the related Mortgage File, and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
shall be provided to it and are reasonably necessary to vest in such
Certificateholder(s) ownership of such Mortgage Loan (subject, in the case of an
Additional Servicing Fee Mortgage Loan to the rights of the applicable
Designated Sub-Servicer to sub-service such Mortgage Loan and the rights of the
applicable Designated Sub-Servicer or Archon, as applicable, to receive the
Additional Servicing Fee, in each case as set forth under the related Designated
Sub-Servicer Agreement). In connection with any such purchase, the Special
Servicer shall deliver the related Servicing File to the Certificateholder(s)
effecting such purchase (or to its or their designee).
(c) If the Majority Controlling Class Certificateholder has
not purchased any Defaulted Mortgage Loan described in the first sentence of
Section 3.18(b) within thirty (30) days of the Holders of the Controlling Class
having received notice in respect thereof pursuant to Section 3.18(b) above,
then the Trustee shall within five (5) days of the end of such 30-day period
send notice to the Master Servicer and the Special Servicer that such Mortgage
Loan was not purchased by such Certificateholder(s), and either the Special
Servicer or the Master Servicer (in that order of priority) may, at its option,
within thirty (30) days after receipt of such notice, purchase (or designate an
Affiliate thereof to purchase) such Mortgage Loan out of the Trust Fund at a
cash price equal to the Purchase Price. The Purchase Price for any such Mortgage
Loan purchased under this Section 3.18(c) shall be deposited into the Collection
Account, and the Trustee, upon receipt of an Officer's Certificate from the
Master Servicer to the effect that such deposit has been made, shall release or
cause to be released to the Master Servicer or the Special Servicer (or the
designated Affiliate thereof), as applicable, the related Mortgage File, and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be provided to it and are reasonably necessary
-111-
<PAGE>
to vest in the Master Servicer or the Special Servicer (or the designated
Affiliate thereof), as applicable, the ownership of such Mortgage Loan (subject,
in the case of an Additional Servicing Fee Mortgage Loan, to the rights of the
applicable Designated Sub-Servicer to sub-service such Mortgage Loan and the
rights of the applicable Designated Sub-Servicer or Archon, as applicable, to
receive the Additional Servicing Fee, in each case as set forth under the
related Designated Sub-Servicer Agreement). In connection with any such purchase
by the Master Servicer (or any designated Affiliate thereof), the Special
Servicer shall deliver the related Servicing File to the Master Servicer (or any
designated Affiliate thereof). For purposes of the other sections of this
Agreement, any purchase of a Defaulted Mortgage Loan by a designated Affiliate
of the Master Servicer or Special Servicer pursuant to this Section 3.18(c)
shall be deemed a purchase of such Defaulted Mortgage Loan by the Master
Servicer or the Special Servicer, as applicable.
(d) Subject to Section 3.24, the Special Servicer may offer to
sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section
3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines,
consistent with the Servicing Standard, that such a sale would be in the best
economic interests of the Certificateholders (as a collective whole). Such offer
shall be made in a commercially reasonable manner (which, for purposes hereof,
includes an offer to sell without representation or warranty other than
customary warranties of title and condition, if liability for breach thereof is
limited to recourse against the Trust) for a period of not less than ten (10)
days. Such sale shall be made subject to the rights of the Designated
Sub-Servicers as described in subsections (b) and (c) above. Subject to Section
3.18(h) and Section 3.24, the Special Servicer shall accept the highest cash bid
received from any Person that constitutes a fair price for such Mortgage Loan.
In the absence of any bid determined as provided below to be fair, the Special
Servicer shall proceed with respect to such Defaulted Mortgage Loan in
accordance with Section 3.09.
The Special Servicer shall use its best efforts to solicit
bids for each REO Property in such manner as will be reasonably likely to
realize a fair price within the time period provided for by Section 3.16(a).
Subject to Section 3.18(h) and Section 3.24, the Special Servicer shall accept
the first (and, if multiple bids are received by a specified bid date, the
highest) cash bid received from any Person that constitutes a fair price
(determined pursuant to Section 3.18(e) below) for such REO Property. If the
Special Servicer reasonably believes that it will be unable to realize a fair
price (determined pursuant to Section 3.18(e) below) for any REO Property within
the time constraints imposed by Section 3.16(a), the Special Servicer shall
dispose of such REO Property upon such terms and conditions as the Special
Servicer shall deem necessary and desirable to maximize the recovery thereon
under the circumstances.
The Special Servicer shall give the Trustee, the Master
Servicer and the Controlling Class Representative not less than five (5)
Business Days' prior written notice of its intention to sell any Defaulted
Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested
Person shall be obligated to submit a bid to purchase any such Mortgage Loan or
REO Property, and notwithstanding anything to the contrary herein, neither the
Trustee, in its individual capacity, nor any of its Affiliates may bid for or
purchase any Defaulted Mortgage Loan or REO Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any
Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of
Section 3.18(d), shall be determined by the Special Servicer or, if such cash
bid is from an Interested Person, by the Trustee. In determining whether any bid
received from an Interested Person represents a fair price for any such Mortgage
Loan or REO Property, the Trustee shall be supplied with and shall be entitled
to rely on the most recent Appraisal in the related Servicing File
-112-
<PAGE>
conducted in accordance with this Agreement within the preceding twelve (12)
month period (or, in the absence of any such Appraisal or if there has been a
material change at the subject property since any such Appraisal, on a new
Appraisal to be obtained by the Special Servicer (the cost of which shall be
covered by, and be reimbursable as, a Servicing Advance)). The appraiser
conducting any such new Appraisal shall be a Qualified Appraiser that is (i)
selected by the Special Servicer if neither the Special Servicer nor any
Affiliate thereof is bidding with respect to a Defaulted Mortgage Loan or REO
Property and (ii) selected by the Trustee if either the Special Servicer or any
Affiliate thereof is so bidding. Where any Interested Person is among those
bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special
Servicer shall require that all bids be submitted to it (and, if the Special
Servicer is bidding, shall be submitted by it to the Trustee) in writing and be
accompanied by a refundable deposit of cash in an amount equal to 5% of the bid
amount. In determining whether any bid from a Person other than an Interested
Person constitutes a fair price for any such Mortgage Loan or REO Property, the
Special Servicer shall take into account the results of any Appraisal or updated
Appraisal that it or the Master Servicer may have obtained in accordance with
this Agreement within the preceding twelve (12) month period, and any Qualified
Appraiser shall be instructed to take into account, as applicable, among other
factors, the period and amount of any delinquency on the affected Mortgage Loan,
the occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a). The Purchase
Price for any such Mortgage Loan or REO Property shall in all cases be deemed a
fair price. Notwithstanding the other provisions of this Section 3.18, no cash
bid from the Special Servicer or any Affiliate thereof shall constitute a fair
price for any Defaulted Mortgage Loan or REO Property unless such bid is the
highest cash bid received and at least two independent bids (not including the
bid of the Special Servicer or any Affiliate) have been received. In the event
the bid of the Special Servicer or any Affiliate thereof is the only bid
received or is the higher of only two bids received, then additional bids shall
be solicited. If an additional bid or bids, as the case may be, are received and
the original bid of the Special Servicer or any Affiliate thereof is the highest
of all cash bids received, then the bid of the Special Servicer or such
Affiliate shall be accepted, provided that the Trustee has otherwise determined,
as provided above in this Section 3.18(e), that such bid constitutes a fair
price for any Defaulted Mortgage Loan or REO Property. Any bid by the Special
Servicer shall be unconditional; and, if accepted, the Defaulted Mortgage Loan
or REO Property shall be transferred to the Special Servicer without recourse,
representation or warranty other than customary representations as to title
given in connection with the sale of a mortgage loan or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the
Special Servicer shall act on behalf of the Trustee in negotiating with
independent third parties and taking any other action necessary or appropriate
in connection with the sale of any Defaulted Mortgage Loan or REO Property, and
the collection of all amounts payable in connection therewith. In connection
therewith, the Special Servicer may charge prospective bidders, and may retain,
fees that approximate the Special Servicer's actual costs in the preparation and
delivery of information pertaining to such sales or evaluating bids without
obligation to deposit such amounts into the Collection Account. Any sale of a
Defaulted Mortgage Loan or any REO Property shall be final and without recourse
(except for warranties of title and condition contemplated by Section 3.18(d))
to the Trustee or the Trust, and if such sale is consummated in accordance with
the terms of this Agreement, neither the Special Servicer nor the Trustee shall
have any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property
shall be for cash only.
-113-
<PAGE>
(h) Notwithstanding any of the foregoing paragraphs of this
Section 3.18, but subject to Section 3.24, the Special Servicer shall not be
obligated to accept the highest cash bid if the Special Servicer determines, in
accordance with the Servicing Standard, that rejection of such bid would be in
the best interests of the Certificateholders (as a collective whole), and the
Special Servicer may accept a lower cash bid (from any Person other than itself
or an Affiliate) if it determines, in accordance with the Servicing Standard,
that acceptance of such bid would be in the best interests of the
Certificateholders (as a collective whole) (for example, if the prospective
buyer making the lower bid is more likely to perform its obligations or the
terms (other than price) offered by the prospective buyer making the lower bid
are more favorable).
SECTION 3.19. Additional Obligations of Master Servicer.
(a) The Master Servicer shall deliver to the Trustee for
deposit in the Distribution Account by 2:00 p.m. (New York City time) on each
Master Servicer Remittance Date, without any right of reimbursement therefor, an
amount (a "Compensating Interest Payment") equal to the lesser of (i) the
aggregate amount of Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received in respect of the Mortgage Pool during the most
recently ended Collection Period, and (ii) the total amount of Master Servicing
Fees and Prepayment Interest Excesses received by the Master Servicer during the
most recently ended Collection Period. In no event shall Additional Servicing
Fees be applied toward any Compensating Interest Payment (or any calculation of
such payment) under this Section 3.19(a).
(b) No more frequently than once per calendar month, the
Special Servicer may require the Master Servicer, and the Master Servicer shall
be obligated, out of the Master Servicer's own funds, to reimburse the Special
Servicer for any Servicing Advances (other than Nonrecoverable Servicing
Advances) made by but not previously reimbursed to the Special Servicer,
together with interest thereon at the Reimbursement Rate from the date made to,
but not including, the date of reimbursement. Such reimbursement and any
accompanying payment of interest shall be made within ten (10) days of the
request therefor by wire transfer of immediately available funds to an account
designated by the Special Servicer. Upon the Master Servicer's reimbursement to
the Special Servicer of any Servicing Advance and payment to the Special
Servicer of interest thereon, all in accordance with this Section 3.19(b), the
Master Servicer shall for all purposes of this Agreement be deemed to have made
such Servicing Advance at the same time as the Special Servicer actually made
such Servicing Advance, and accordingly, the Master Servicer shall be entitled
to reimbursement for such Servicing Advance, together with interest thereon in
accordance with Sections 3.05(a) and 3.11(g), at the same time, in the same
manner and to the same extent as the Master Servicer would otherwise have been
entitled if it had actually made such Servicing Advance at the time the Special
Servicer did.
Notwithstanding anything to the contrary contained in any
other Section of this Agreement, if the Special Servicer is required under this
Agreement (but subject to the following paragraph), to make any Servicing
Advance but does not desire to do so, the Special Servicer may, in its sole
discretion, request that the Master Servicer make such Servicing Advance. Any
such request shall be made, in writing, in a timely manner that does not
adversely affect the interests of any Certificateholder (and, in any event, to
the extent reasonably practicable, at least five (5) Business Days in advance of
the date on which the subject Servicing Advance is to be made) and shall be
accompanied by such information and documentation regarding the subject
Servicing Advance as the Master Servicer may reasonably request; provided,
however, that the Special Servicer shall not be entitled to make such a request
(other than for emergency advances) more frequently than once per calendar month
(although such request may relate to more than one Servicing
-114-
<PAGE>
Advance). The Master Servicer shall have the obligation to make any such
Servicing Advance (other than a Nonrecoverable Servicing Advance) that it is so
requested by the Special Servicer to make, within five (5) Business Days of the
Master Servicer's receipt of such request. If the request is timely and properly
made, the Special Servicer shall be relieved of any obligations with respect to
a Servicing Advance that it so requests the Master Servicer to make (regardless
of whether or not the Master Servicer shall make such Servicing Advance). The
Master Servicer shall be entitled to reimbursement for any Servicing Advance
made by it at the direction of the Special Servicer, together with interest
thereon in accordance with Sections 3.05(a) and 3.11(g), at the same time, in
the same manner and to the same extent as the Master Servicer is entitled with
respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section
3.19(b), the Master Servicer shall not be required to reimburse the Special
Servicer for, or to make at the direction of the Special Servicer, any Servicing
Advance if the Master Servicer determines in its reasonable, good faith judgment
that such Servicing Advance, although not characterized by the Special Servicer
as a Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing
Advance. The Master Servicer shall notify the Special Servicer in writing of
such determination and, if applicable, such Nonrecoverable Servicing Advance
shall be reimbursed to the Special Servicer pursuant to Section 3.05(a).
(c) Promptly following the earliest of (i) the date on which
any Mortgage Loan becomes a Modified Mortgage Loan, (ii) the date on which the
Borrower under any Mortgage Loan becomes the subject of bankruptcy, insolvency
or similar proceedings, (iii) the 60th day (or, in the case of a Modified
Mortgage Loan or a Mortgage Loan where the Borrower has been the subject of a
bankruptcy, insolvency or similar proceedings since the Closing Date, the 30th
day) following the occurrence of any uncured delinquency in Monthly Payments
with respect to any Mortgage Loan, (iv) the date on which a receiver is
appointed and continues in such capacity in respect of the Mortgaged Property
securing any Mortgage Loan, and (v) the date on which the Mortgaged Property
securing any Mortgage Loan becomes an REO Property (each such Mortgage Loan,
until it ceases to be such in accordance with the following paragraph, a
"Required Appraisal Loan"), the Special Servicer shall obtain an Appraisal of
the related Mortgaged Property, unless an Appraisal thereof had previously been
obtained within the preceding twelve (12) month period, and shall deliver a copy
thereof to the Trustee, the Master Servicer and the Controlling Class
Representative. The cost of such Appraisal shall be covered by, and be
reimbursable as, a Servicing Advance. Based on such Appraisal, the Special
Servicer shall determine and report to the Trustee the then applicable Appraisal
Reduction Amount, if any, with respect to the subject Required Appraisal Loan.
For so long as any Mortgage Loan or REO Mortgage Loan remains
a Required Appraisal Loan, the Special Servicer shall, within thirty (30) days
of each anniversary of such loan's having become a Required Appraisal Loan,
order or conduct an update of the prior Appraisal (the cost of which will be
covered by, and be reimbursable as, a Servicing Advance); and, upon receipt,
based upon such update, the Special Servicer shall redetermine and report to the
Trustee the then applicable Appraisal Reduction Amount, if any, with respect to
the subject Required Appraisal Loan. A Mortgage Loan will cease to be a Required
Appraisal Loan if and when such Mortgage Loan has become a Corrected Mortgage
Loan and has remained current for at least twelve (12) consecutive Monthly
Payments, and no other Servicing Transfer Event has occurred with respect
thereto during the preceding twelve (12) months.
-115-
<PAGE>
At any time that any Appraisal Reduction Amount exists with
respect to any Required Appraisal Loan, the Controlling Class Representative
may, at its own expense, obtain and deliver to the Master Servicer, the Special
Servicer and the Trustee an Appraisal of the related Mortgaged Property or REO
Property, as the case may be. In addition, at any such time that is not less
than six (6) months following the initial determination of such Appraisal
Reduction Amount (and on one occasion at least six (6) months after the first
occasion), the Holders of any then outstanding Class of Certificates that is
subordinate to the Controlling Class may, at their own expense, obtain and
deliver to the Master Servicer, the Special Servicer and the Trustee an
Appraisal that satisfies the criteria for a Required Appraisal. Upon the written
request of the Controlling Class Representative or such Holders, the Special
Servicer shall recalculate the Appraisal Reduction Amount in respect of such
Required Appraisal Loan based on the Appraisal delivered by such party and
notify the Trustee, the Master Servicer and the Controlling Class Representative
of such recalculated Appraisal Reduction Amount.
(d) The Master Servicer shall pay, without any right of
reimbursement therefor, the post-Closing Date fees of the Rating Agencies for
ongoing surveillance of the Rated Certificates, but shall not be required to pay
without reimbursement the fees charged by any Rating Agency for a (i)
confirmation as to the lack of an Adverse Rating Event with respect to any Class
of Rated Certificates or (ii) in connection with any other particular matter.
(e) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Prepayment Premium
or Yield Maintenance Charge, as the case may be, payable under the terms of the
related Mortgage Note. Upon written request of any Certificateholder, the Master
Servicer shall disclose to such Certificateholder its calculation of any such
Prepayment Premium or Yield Maintenance Charge.
(f) The Master Servicer shall not permit defeasance of any
Mortgage Loan (x) on or before the earliest date on which defeasance is
permitted under the terms of such Mortgage Loan, or (y) to the extent consistent
with the terms of such Mortgage Loan, unless (i) the defeasance collateral
consists of U.S. Treasury obligations, (ii) the Master Servicer has determined
that the defeasance will not result in an Adverse REMIC Event in respect of any
REMIC Pool, (iii) the Master Servicer has notified the Rating Agencies, (iv) the
Master Servicer has confirmed that such defeasance will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates (provided that the
requirement to obtain such confirmation will be a precondition to the defeasance
only if the Master Servicer is able under the related Mortgage Loan documents
and applicable law to prevent the defeasance if such confirmation is not
obtained), and (v) the Master Servicer has requested and received from the
related Borrower (A) an Opinion of Counsel generally to the effect that the
Trustee will have a perfected, first priority security interest in such
defeasance collateral and (B) written confirmation from a firm of Independent
accountants stating that payments made on such defeasance collateral in
accordance with the terms thereof will be sufficient to pay the subject Mortgage
Loan in full on or before its Stated Maturity Date (or, in the case of an ARD
Loan, on or before its Anticipated Repayment Date) and to timely pay each
Monthly Payment scheduled to be due prior thereto but after the defeasance;
provided that, if under the terms of the related Mortgage Loan documents, the
related Borrower delivers cash to purchase the defeasance collateral rather than
the defeasance collateral itself, the Master Servicer shall purchase the U.S.
Treasury obligations contemplated by the related Mortgage Loan documents.
Subsequent to the second anniversary of the Startup Day for the REMIC Pool that
holds the subject Mortgage Loan, to the extent that the Master Servicer can, in
accordance with the related Mortgage Loan documents, require defeasance of any
Mortgage Loan in lieu of accepting a prepayment of
-116-
<PAGE>
principal thereunder, including a prepayment of principal accompanied by a
Prepayment Premium or Yield Maintenance Charge, the Master Servicer shall, to
the extent it is consistent with the Servicing Standard, require such
defeasance, provided that the conditions set forth in clauses (i) through (v) of
the preceding sentence have been satisfied. Any customary and reasonable
out-of-pocket expense incurred by the Master Servicer pursuant to this Section
3.19(f) shall be paid by the Borrower of the defeased Mortgage Loan pursuant to
the related Mortgage, Mortgage Note or other pertinent document, if so allowed
by the terms of such documents (and, if the Master Servicer reasonably
determines that it cannot recover such expenses from the Borrower, such expenses
shall constitute a Servicing Advance). Notwithstanding the foregoing, if at any
time, a court with jurisdiction in the matter shall hold that the related
Borrower may obtain a release of the subject Mortgaged Property but is not
obligated to deliver the full amount of the defeasance collateral contemplated
by the related Mortgage Loan documents (or cash sufficient to purchase such
defeasance collateral), then the Master Servicer shall (i) if consistent with
such court holding and the related Mortgage Loan documents, refuse to allow the
defeasance of the Mortgage Loan or (ii) if the Master Servicer cannot so refuse
and if the related Borrower has delivered cash to purchase the defeasance
collateral, the Master Servicer shall either (A) buy such defeasance collateral
or (B) prepay the Mortgage Loan, in either case, in accordance with the
Servicing Standard.
(g) The Master Servicer shall, as to each Mortgage Loan which
is secured by the interest of the related Borrower under a Ground Lease,
promptly (and in any event within forty-five (45) days of the Closing Date)
notify the related ground lessor of the transfer of such Mortgage Loan to the
Trust pursuant to this Agreement and inform such ground lessor that any notices
of default under the related Ground Lease should thereafter be forwarded to the
Master Servicer.
(h) With respect to each Designated ARD Loan, to the extent
that the related Mortgage Loan Seller has not on or before the Closing Date
delivered to the related Borrower a waiver of the accrual of Additional Interest
to the extent accrued at an Additional Interest Rate in excess of 2.0% per
annum, the Master Servicer shall deliver, on or before the 90th day following
the Closing Date, such a waiver on behalf of the Trust Fund as the holder of
such Designated ARD Loan.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer (as to Specially Serviced Mortgage
Loans) and, to the limited extent permitted below, the Master Servicer (as to
Performing Mortgage Loans) each may (consistent with the Servicing Standard)
agree to any modification, waiver or amendment of any term of, extend the
maturity of, forgive interest (including Default Interest and Additional
Interest) on and principal of, forgive late payment charges, Prepayment Premiums
and Yield Maintenance Charges on, defer the payment of interest on, permit the
release, addition or substitution of collateral securing, and/or permit the
release, addition or substitution of the Borrower on or any guarantor of, any
Mortgage Loan it is required to service and administer hereunder, subject,
however, to Sections 3.08 and 3.24 and, further to each of the following
limitations, conditions and restrictions:
(i) other than as provided in Sections 2.03(a), 3.02, 3.08,
3.19(h), 3.20(f) and 3.20(g), the Master Servicer shall not agree to
any modification, waiver or amendment of any term of, or take any of
the other acts referenced in this Section 3.20(a) with respect to, any
Mortgage Loan without the consent of the Special Servicer (it being
understood and agreed that (A) the Master Servicer shall promptly
provide the Special Servicer with all information that the Special
Servicer may reasonably
-117-
<PAGE>
request in order to withhold or grant any such consent, (B) the Special
Servicer (for no additional compensation) shall decide whether to
withhold or grant such consent in accordance with the Servicing
Standard and (C) if any such consent has not been expressly denied
within ten (10) Business Days of the Special Servicer's receipt from
the Master Servicer of all information reasonably requested thereby in
order to make an informed decision, such consent shall be deemed to
have been granted);
(ii) other than as provided in Sections 3.02, 3.08 and
3.20(f), the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, agree to (or, in the case of any Performing
Mortgage Loan, consent to the Master Servicer's agreeing to) any
modification, waiver or amendment of any term of, or, in the case of
any Specially Serviced Mortgage Loan, take (or, in the case of any
Performing Mortgage Loan, consent to the Master Servicer's taking) any
of the other acts referenced in this Section 3.20(a) with respect to,
any Mortgage Loan that would affect the amount or timing of any related
payment of principal, interest or other amount payable thereunder or,
in the Special Servicer's reasonable, good faith judgment, would
materially impair the security for such Mortgage Loan or reduce the
likelihood of timely payment of amounts due thereon, unless a material
default on such Mortgage Loan has occurred or, in the Special
Servicer's reasonable, good faith judgment, a default in respect of
payment on such Mortgage Loan is reasonably foreseeable, and such
modification, waiver, amendment or other action is reasonably likely to
produce a greater recovery to Certificateholders on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be done at the related Mortgage
Rate), than would liquidation;
(iii) the Special Servicer shall not, in the case of any
Specially Serviced Mortgage Loan, extend (or, in the case of any
Performing Mortgage Loan, consent to the Master Servicer's extending)
the date on which any Balloon Payment is scheduled to be due on any
Mortgage Loan to a date beyond the earliest of (A) the fifth
anniversary of such Mortgage Loan's Stated Maturity Date, (B) two years
prior to the Rated Final Distribution Date and (C) if such Mortgage
Loan is secured by a Mortgage solely or primarily on the related
Borrower's leasehold interest in the related Mortgaged Property, ten
years prior to the end of the then current term of the related Ground
Lease (plus any unilateral options to extend); and, furthermore, the
Special Servicer shall not, in the case of any Specially Serviced
Mortgage Loan, grant (or, in the case of any Performing Mortgage Loan,
consent to the Master Servicer's granting) any such extension unless
(A) the Special Servicer's recovery determination contemplated by
clause (ii) above is supported by an Appraisal performed within the
preceding twelve (12) month period and (B) the related Borrower agrees
to deliver to the Special Servicer, the Trustee and the Controlling
Class Representative quarterly operating statements with respect to the
related Mortgaged Property (the Special Servicer (or, if applicable,
the Master Servicer at the direction of the Special Servicer) to
request that such statements be audited, provided that the Special
Servicer may waive such condition relating to such statements being
audited, in its sole discretion);
(iv) neither the Master Servicer nor the Special Servicer
shall make or permit any modification, waiver or amendment of any term
of, or take any of the other acts referenced in this Section 3.20(a)
with respect to, any Mortgage Loan that would result in an Adverse
REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust
Event with respect to any Grantor Trust Pool;
-118-
<PAGE>
(v) the Special Servicer shall not, in the case of any
Specially Serviced Mortgage Loan, permit (or, in the case of any
Performing Mortgage Loan, consent to the Master Servicer's permitting)
any Borrower to add or substitute any real estate collateral for its
Mortgage Loan unless the Special Servicer shall have first (A)
determined in its reasonable, good faith judgment, based upon a Phase I
Environmental Assessment (and any additional environmental testing that
the Special Servicer deems necessary and prudent) conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments, at the expense of the Borrower, that such additional or
substitute collateral is in compliance with applicable environmental
laws and regulations and that there are no circumstances or conditions
present with respect to such new collateral relating to the use,
management or disposal of any Hazardous Materials for which
investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental
laws and/or regulations and (B) received written confirmation from each
Rating Agency that such addition or substitution of collateral will
not, in and of itself, result in an Adverse Rating Event with respect
to any Class of Rated Certificates; and
(vi) the Special Servicer shall not, in the case of any
Specially Serviced Mortgage Loan, release (or, in the case of any
Performing Mortgage Loan, consent to the Master Servicer's releasing),
including in connection with a substitution contemplated by clause (v)
above, any collateral securing an outstanding Mortgage Loan except as
provided in Section 3.09(d), or except as provided in Section 3.20(g),
or except where a Mortgage Loan (or, in the case of a
Cross-Collateralized Group, where such entire Cross-Collateralized
Group) is satisfied, or except in the case of a release where (A)
either (1) the use of the collateral to be released will not, in the
Special Servicer's good faith and reasonable judgment, materially and
adversely affect the Net Operating Income being generated by or the use
of the related Mortgaged Property, or (2) there is a corresponding
principal pay down of such Mortgage Loan in an amount at least equal to
the appraised value of the collateral to be released (or substitute
collateral with an appraised value at least equal to that of the
collateral to be released, is delivered), (B) the remaining Mortgaged
Property (together with any substitute collateral) is, in the Special
Servicer's good faith and reasonable judgment, adequate security for
the remaining Mortgage Loan and (C) such release would not, in and of
itself, result in an Adverse Rating Event with respect to any Class of
Rated Certificates (as confirmed in writing to the Trustee by each
Rating Agency);
provided that (x) the limitations, conditions and restrictions set forth in
clauses (i) through (vi) above shall not apply to any of the acts referenced in
this Section 3.20(a) with respect to any Mortgage Loan that is required under
the terms of such Mortgage Loan in effect on the Closing Date (or, in the case
of a Replacement Mortgage Loan, on the related date of substitution) or that is
solely within the control of the related Borrower, and (y) notwithstanding
clauses (i) through (vi) above, neither the Master Servicer nor the Special
Servicer shall be required to oppose the confirmation of a plan in any
bankruptcy or similar proceeding involving a Borrower if in its reasonable, good
faith judgment such opposition would not ultimately prevent the confirmation of
such plan or one substantially similar.
(b) The Special Servicer shall have no liability to the Trust,
the Certificateholders or any other Person if the Special Servicer's analysis
and determination that the modification, waiver, amendment or other action
contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis in good faith by the Special Servicer and in
accordance with the Servicing Standard.
-119-
<PAGE>
(c) Any payment of interest, which is deferred pursuant to
Section 3.20(a), shall not, for purposes of calculating monthly distributions
and reporting information to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized; provided, however, that this sentence
shall not limit the rights of the Master Servicer or the Special Servicer on
behalf of the Trust to enforce any obligations of the related Mortgagor under
such Mortgage Loan.
(d) Each of the Master Servicer and the Special Servicer may,
as a condition to its granting any request by a Borrower for consent,
modification, waiver or indulgence or any other matter or thing, the granting of
which is within the Master Servicer's or the Special Servicer's, as the case may
be, discretion pursuant to the terms of the instruments evidencing or securing
the related Mortgage Loan and is permitted by the terms of this Agreement,
require that such Borrower pay to it a reasonable or customary fee (which shall
in no event exceed 1.0% of the unpaid principal balance of the related Mortgage
Loan) for the additional services performed in connection with such request,
together with any related costs and expenses incurred by it. All such fees
collected by the Master Servicer and/or the Special Servicer shall be allocable
between such parties, as Additional Master Servicing Compensation and Additional
Special Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions
entered into or taken in respect of the Mortgage Loans pursuant to this Section
3.20 shall be in writing. Each of the Special Servicer and the Master Servicer
shall notify the other such party and the Trustee, in writing, of any
modification, waiver, amendment or other action entered into or taken thereby in
respect of any Mortgage Loan pursuant to this Section 3.20 and the date thereof,
and shall deliver to the Trustee or the related Custodian for deposit in the
related Mortgage File (with a copy to the other such party), an original
counterpart of the agreement relating to such modification, waiver, amendment or
other action, promptly (and in any event within ten (10) Business Days)
following the execution thereof. In addition, following the execution of any
modification, waiver or amendment agreed to by the Special Servicer pursuant to
Section 3.20(a) above, the Special Servicer shall deliver to the Master
Servicer, the Trustee and the Rating Agencies an Officer's Certificate
certifying that all of the requirements of Section 3.20(a) have been met and
setting forth in reasonable detail the basis of the determination made by it
pursuant to Section 3.20(a)(ii); provided that, if such modification, waiver or
amendment involves an extension of the maturity of any Mortgage Loan, such
Officer's Certificate shall be delivered to the Master Servicer, the Trustee and
the Rating Agencies before the modification, waiver or amendment is agreed to.
(f) With respect to any Designated ARD Loan after its
Anticipated Repayment Date, the Master Servicer shall be permitted, in its
discretion, to waive (such waiver to be in writing addressed to the related
Borrower, with a copy to the Trustee) all or any portion of the accrued
Additional Interest in respect of such ARD Loan if, prior to the related
maturity date, the related Borrower has requested the right to prepay such ARD
Loan in full together with all payments required by the related Mortgage Loan
documents in connection with such prepayment except for such accrued Additional
Interest, provided that the Master Servicer has determined, in its reasonable,
good faith judgment, that the waiver of the Trust's right to receive such
accrued Additional Interest is reasonably likely to produce a greater payment to
Certificateholders on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders to be
performed at the related Mortgage Rate) than a refusal to waive the right to
such Additional Interest. The Master Servicer will have no liability to the
Trust, the Certificateholders or any other Person so long as such determination
is exercised in accordance with the Servicing Standard.
-120-
<PAGE>
(g) The Master Servicer shall not be required to seek the
consent of the Special Servicer or any Certificateholder or obtain any
confirmation of the Certificate ratings from the Rating Agencies in order to
approve the following modifications, waivers or amendments of the Mortgage
Loans: (i) waivers of minor covenant defaults (other than financial covenants),
including late financial statements; (ii) releases of non-material parcels of a
Mortgaged Property (provided that releases as to which the related Mortgage Loan
documents expressly require the mortgagee thereunder to make such releases upon
the satisfaction of certain conditions shall be made as required by the Mortgage
Loan documents); and (iii) grants of easements that do not materially affect the
use or value of a Mortgaged Property or the Borrower's ability to make any
payments with respect to the related Mortgage Loan; provided that any such
modification, waiver or amendment (w) would not in any way affect a payment term
of the Certificates, (x) would not constitute a "significant modification" of
such Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and
would not otherwise constitute an Adverse REMIC Event with respect to any REMIC
Pool or an Adverse Grantor Trust Event with respect to any Grantor Trust Pool,
(y) agreeing to such modification, waiver or amendment would be consistent with
the Servicing Standard, and (z) agreeing to such modification, waiver or
amendment shall not violate the terms, provisions or limitations of this
Agreement or any other document contemplated hereby.
SECTION 3.21. Transfer of Servicing Between Master Servicer
and Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has
occurred with respect to any Mortgage Loan and if the Master Servicer is not
also the Special Servicer, the Master Servicer shall immediately give notice
thereof, and shall deliver the related Servicing File, to the Special Servicer
and shall use its best efforts to provide the Special Servicer with all
information, documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto without acting through a
Sub-Servicer. To the extent such is in the possession of the Master Servicer or
any Sub-Servicer thereof, the information, documents and records to be delivered
by the Master Servicer to the Special Servicer pursuant to the prior sentence
shall include, but not be limited to, financial statements, appraisals,
environmental/engineering reports, leases, rent rolls, title insurance policies,
UCC's and tenant estoppels. The Master Servicer shall use its best efforts to
comply with the preceding two sentences within five (5) Business Days of the
occurrence of each related Servicing Transfer Event. The Special Servicer may,
as to any delinquent Mortgage Loan, prior to the occurrence of a Servicing
Transfer Event with respect thereto, request and obtain the foregoing documents
and information in order to perform its duties described in Section 3.02.
Upon determining that a Specially Serviced Mortgage Loan has
become a Corrected Mortgage Loan and if the Master Servicer is not also the
Special Servicer, the Special Servicer shall immediately give notice thereof,
and shall return the related Servicing File within five (5) Business Days, to
the Master Servicer; and, upon giving such notice and returning such Servicing
File to the Master Servicer, the Special Servicer's obligation to service such
Mortgage Loan, and the Special Servicer's right to receive the Special Servicing
Fee with respect to such Mortgage Loan, shall terminate, and the obligations of
the Master Servicer to service and administer such Mortgage Loan shall resume.
-121-
<PAGE>
Notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the Master Servicer with
respect to any such Mortgage Loan upon its becoming a Corrected Mortgage Loan,
the Master Servicer and the Special Servicer shall each transfer to the other,
as and when applicable, the servicing of all other Cross-Collateralized Mortgage
Loans constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Trustee originals of documents
contemplated by the definition of "Mortgage File" and generated while such
Mortgage Loan is a Specially Serviced Mortgage Loan, for inclusion in the
related Mortgage File (with a copy of each such original to the Master
Servicer), and copies of any additional related Mortgage Loan information,
including correspondence with the related Borrower generated while such Mortgage
Loan is a Specially Serviced Mortgage Loan.
(c) The Master Servicer and Special Servicer shall each
furnish to the other, upon reasonable request, such reports, documents,
certifications and information in its possession, and access to such books and
records maintained thereby, as may relate to the Mortgage Loans and any REO
Properties and as shall be reasonably required by the requesting party in order
to perform its duties hereunder.
(d) In connection with the performance of its obligations
hereunder, each of the Master Servicer and the Special Servicer shall be
entitled to rely upon written information provided to it by the other.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and, subject to Section 3.22(f), the
Special Servicer may enter into Sub-Servicing Agreements to provide for the
performance by third parties of any or all of their respective obligations
hereunder, provided that, in each case, the Sub-Servicing Agreement: (i) insofar
as it affects the Trust, is consistent with this Agreement in all material
respects and requires the Sub-Servicer to comply in all material respects with
all of the applicable conditions of this Agreement; (ii) provides that if the
Master Servicer or the Special Servicer, as the case may be, shall for any
reason no longer act in such capacity hereunder (including by reason of an Event
of Default), the Trustee or its designee or any other successor to the Master
Servicer or the Special Servicer, as the case may be, may thereupon assume all
of the rights and, except to the extent they arose prior to the date of
assumption, obligations of the Master Servicer or the Special Servicer, as the
case may be, under such agreement or, alternatively, may terminate such
Sub-Servicing Agreement without cause and without payment of any penalty or
termination fee (provided, however, that each Designated Sub-Servicer Agreement
allows for terminations of the applicable Designated Sub-Servicer as provided
above only for cause as provided in the related Designated Sub-Servicer
Agreement); (iii) provides that the Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer or the Special Servicer, as the case may be, thereunder
as contemplated by the immediately preceding clause (ii) and except with respect
to the obligations of any successor Master Servicer under the Designated
Sub-Servicer Agreements) none of the Trustee, any successor Master Servicer or
Special Servicer, as the case may be, or any Certificateholder shall have any
duties under such agreement or any liabilities arising therefrom except as
explicitly set forth herein; (iv) permits any purchaser of a
-122-
<PAGE>
Mortgage Loan pursuant to this Agreement to terminate such agreement with
respect to such purchased Mortgage Loan at its option and without penalty except
with respect to the Designated Sub-Servicer Agreements; (v) does not permit the
Sub-Servicer to enter into or consent to any modification, waiver or amendment
or otherwise take any action on behalf of the Master Servicer or Special
Servicer, as the case may be, contemplated by Section 3.20 hereof without the
consent of the Master Servicer or Special Servicer, as the case may be; and (vi)
does not permit the Sub-Servicer any greater rights of indemnification out of
the Trust Fund than those that the Master Servicer or the Special Servicer, as
the case may be, have pursuant to Section 6.03; provided that the appointment by
the Master Servicer or Special Servicer of a third-party contractor for the
purpose of performing discrete, ministerial functions shall not be subject to
this Section 3.22 (except that the Master Servicer or the Special Servicer, as
the case may be, shall remain responsible for the actions of such third-party
contractors and shall pay all fees and expenses of such third-party contractors,
unless otherwise expressly provided herein). In addition, each Sub-Servicing
Agreement entered into by the Master Servicer (other than to the extent provided
in the Designated Sub-Servicer Agreements) shall provide that such agreement
shall, with respect to any Mortgage Loan serviced thereunder, terminate at the
time such Mortgage Loan becomes a Specially Serviced Mortgage Loan (or,
alternatively, be suspended for so long as such Mortgage Loan continues to be a
Specially Serviced Mortgage Loan), and each Sub-Servicing Agreement entered into
by the Special Servicer shall relate only to Specially Serviced Mortgage Loans
and REO Property and shall terminate with respect to any such Mortgage Loan
which ceases to be a Specially Serviced Mortgage Loan. The Master Servicer and
the Special Servicer shall each notify the other, the Trustee and the Depositor
in writing promptly of the appointment by it of any Sub-Servicer. The Master
Servicer and the Special Servicer shall each deliver to the Trustee copies of
all Sub-Servicing Agreements, and any amendments thereto and modifications
thereof, entered into by it promptly upon its execution and delivery of such
documents. References in this Agreement to actions taken or to be taken by the
Master Servicer or the Special Servicer include actions taken or to be taken by
a Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer or the Special
Servicer hereunder to make Advances shall be deemed to have been advanced by the
Master Servicer or the Special Servicer, as the case may be, out of its own
funds and, accordingly, such Advances shall be recoverable by such Sub-Servicer
in the same manner and out of the same funds as if such Sub-Servicer were the
Master Servicer or the Special Servicer, as the case may be. Such Advances shall
accrue interest in accordance with Sections 3.11(g) and/or 4.03(e), such
interest to be allocable between the Master Servicer or the Special Servicer, as
the case may be, and such Sub-Servicer as they may agree. For purposes of this
Agreement, the Master Servicer and the Special Servicer shall each be deemed to
have received any payment when a Sub-Servicer retained by it receives such
payment.
(b) Each Sub-Servicer shall be authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law.
(c) The Master Servicer and the Special Servicer, for the
benefit of the Trustee and the Certificateholders, shall (at no expense to the
other such party or to the Trustee, the Certificateholders or the Trust) monitor
the performance and enforce the obligations of their respective Sub-Servicers
under the related Sub-Servicing Agreements. Such enforcement, including the
legal prosecution of claims, termination of Sub-Servicing Agreements in
accordance with their respective terms and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Master Servicer or the Special Servicer, as applicable, in its good
faith and reasonable judgment, would require were it the owner
-123-
<PAGE>
of the Mortgage Loans. Subject to the terms of the related Sub-Servicing
Agreement, the Master Servicer and the Special Servicer shall each have the
right to remove a Sub-Servicer retained by it at any time it considers such
removal to be in the best interests of Certificateholders.
(d) If the Master Servicer or the Special Servicer ceases to
serve as such under this Agreement for any reason (including by reason of an
Event of Default), then the Trustee or other successor Master Servicer or
Special Servicer, as the case may be, shall succeed to the rights and assume the
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement unless the Trustee elects to terminate any such
Sub-Servicing Agreement in accordance with its terms and Section 3.22(a)(ii)
hereof.; provided that a Designated Sub-Servicer may not be so terminated except
for cause as provided in the Designated Sub-Servicer Agreement. In any event, if
a Sub-Servicing Agreement is to be assumed by the Trustee or another successor
thereto, then the Master Servicer or the Special Servicer, as applicable, at its
expense shall, upon request of the Trustee, deliver to the assuming party all
documents and records relating to such Sub-Servicing Agreement and the Mortgage
Loans then being serviced thereunder and an accounting of amounts collected and
held on behalf of it thereunder, and otherwise use its best efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreement to the
assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer shall remain obligated and liable to the
Trustee and the Certificateholders for the performance of their respective
obligations and duties under this Agreement in accordance with the provisions
hereof to the same extent and under the same terms and conditions as if each
alone were servicing and administering the Mortgage Loans or REO Properties for
which it is responsible. No appointment of a Sub-Servicer shall result in any
additional expense to the Trustee, the Certificateholders or the Trust other
than those contemplated herein.
(f) The Special Servicer shall not enter into any
Sub-Servicing Agreement unless either: (i) the Rating Agencies have confirmed in
writing that entering into such agreement will not result in an Adverse Rating
Event; or (ii) such agreement relates to one or Mortgage Loans (including any
such Mortgage Loan(s) previously sub-serviced in accordance with this Section
3.22) that together represent less than 25% of the aggregate outstanding
principal balance of all Specially Serviced Mortgage Loans.
(g) Notwithstanding any provision herein, the Designated
Sub-Servicer under any Designated Sub-Servicer Agreement may only be terminated
by the Master Servicer (or, as contemplated in Section 3.22(a), by the Trustee,
its designee or a successor Master Servicer) for cause as provided in the
Designated Sub-Servicer Agreement. Each successor Master Servicer hereunder
shall, except as provided in Section 7.01(c), agree to assume the
responsibilities and obligations of the Master Servicer under the applicable
Designated Sub-Servicer Agreement.
SECTION 3.23. Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates,
the Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case
-124-
<PAGE>
of Book-Entry Certificates, the Certificate Owners) of Certificates representing
more than 50% of the Class Principal Balance of the Controlling Class, (ii) the
resignation or removal of the Person acting as Controlling Class Representative
or (iii) a determination by the Trustee that the Controlling Class has changed,
the Trustee shall promptly notify the Depositor and the Holders (and, in the
case of Book-Entry Certificates, to the extent actually known to a Responsible
Officer of the Trustee or identified thereto by the Depository or the Depository
Participants, the Certificate Owners) of the Controlling Class that they may
select a Controlling Class Representative. Such notice shall set forth the
process established by the Trustee in order to select a Controlling Class
Representative, which process may include the designation of the Controlling
Class Representative by the Majority Controlling Class Certificateholder by a
writing delivered to the Trustee. No appointment of any Person as a Controlling
Class Representative shall be effective until such Person provides the Trustee
with written confirmation of its acceptance of such appointment, an address and
telecopy number for the delivery of notices and other correspondence and a list
of officers or employees of such Person with whom the parties to this Agreement
may deal (including their names, titles, work addresses and telecopy numbers).
(b) Within ten (10) Business Days (or as soon thereafter as
practicable if the Controlling Class consists of Book-Entry Certificates) of
receiving a request therefor from the Master Servicer or Special Servicer, the
Trustee shall deliver to the requesting party the identity of the Controlling
Class Representative and a list of each Holder (or, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depository or the Depository Participants,
each Certificate Owner) of the Controlling Class, including, in each case, names
and addresses. With respect to such information, the Trustee shall be entitled
to conclusively rely on information provided to it by the Holders (or, in the
case of Book-Entry Certificates, subject to Section 5.06, by the Depository or
the Certificate Owners) of such Certificates, and the Master Servicer and the
Special Servicer shall be entitled to rely on such information provided by the
Trustee with respect to any obligation or right hereunder that the Master
Servicer and the Special Servicer may have to deliver information or otherwise
communicate with the Controlling Class Representative or any of the Holders (or,
if applicable, Certificate Owners) of the Controlling Class. In addition to the
foregoing, within two (2) Business Days of the selection, resignation or removal
of a Controlling Class Representative, the Trustee shall notify the other
parties to this Agreement of such event. The expenses incurred by the Trustee in
connection with obtaining information from the Depository or Depository
Participants with respect to any Book-Entry Certificate shall be expenses of the
Trust payable out of the Collection Account pursuant to Section 3.05(a).
(c) A Controlling Class Representative may at any time resign
as such by giving written notice to the Trustee and to each Holder (or, in the
case of Book-Entry Certificates, Certificate Owner) of the Controlling Class.
The Holders (or, in the case of Book-Entry Certificates, the Certificate Owners)
of Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Trustee and to such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
Holder
-125-
<PAGE>
(or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class, in writing, of the resignation or removal of such Controlling
Class Representative.
(e) Any and all expenses of the Controlling Class
Representative shall be borne by the Holders (or, if applicable, the Certificate
Owners) of Certificates of the Controlling Class, pro rata according to their
respective Percentage Interests in such Class, and not by the Trust.
Notwithstanding the foregoing, if a claim is made against the Controlling Class
Representative by a Borrower with respect to this Agreement or any particular
Mortgage Loan, the Controlling Class Representative shall immediately notify the
Trustee, the Master Servicer and the Special Servicer, whereupon (if the Special
Servicer or the Trust are also named parties to the same action and, in the sole
judgment of the Special Servicer, (i) the Controlling Class Representative had
acted in good faith, without negligence or willful misfeasance with regard to
the particular matter, and (ii) there is no potential for the Special Servicer
or the Trust to be an adverse party in such action as regards the Controlling
Class Representative) the Special Servicer on behalf of the Trust shall, subject
to Section 6.03, assume the defense of any such claim against the Controlling
Class Representative. This provision shall survive the termination of this
Agreement and the termination or resignation of the Controlling Class
Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling
Class Representative.
(a) No later than thirty (30) days after a Servicing Transfer
Event for a Specially Serviced Mortgage Loan, the Special Servicer shall,
subject to Section 3.24(b), deliver to each Rating Agency, the Master Servicer,
the Trustee and the Controlling Class Representative a report (the "Asset Status
Report") with respect to such Mortgage Loan and the related Mortgaged Property.
Such Asset Status Report shall include the following information to the extent
reasonably determinable:
(i) a summary of the status of such Specially Serviced
Mortgage Loan;
(ii) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer, consistent
with the Servicing Standard, that are applicable to the exercise of
remedies and to the enforcement of any related guaranties or other
collateral for such Specially Serviced Mortgage Loan and whether
outside legal counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Appraised Value of the related Mortgaged Property,
together with the assumptions used in the calculation thereof;
(v) a summary of the Special Servicer's recommended action
with respect to such Specially Serviced Mortgage Loan; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard.
-126-
<PAGE>
If the Controlling Class Representative disapproves of an
Asset Status Report, the Controlling Class Representative shall, within ten (10)
Business Days of receiving such Asset Status Report, provide notice in writing
to the Special Servicer of such disapproval, and the Special Servicer shall,
subject to Section 3.24(b), revise such Asset Status Report and deliver to the
Controlling Class Representative, the Trustee, the Rating Agencies and the
Master Servicer a new Asset Status Report as soon as practicable, but in no
event later than thirty (30) days after such disapproval. If the Controlling
Class Representative does not disapprove of an Asset Status Report within such
ten (10) Business Day period, the Special Servicer shall implement the
recommended action as outlined in such Asset Status Report (provided that the
Special Servicer shall not take any action that is contrary to applicable law or
the terms of the applicable loan documents). The Special Servicer shall, subject
to Section 3.24(b), revise such Asset Status Report as provided above in this
paragraph until the earliest of (a) the failure of the Controlling Class
Representative to disapprove such revised Asset Status Report in writing within
ten (10) Business Days of its receipt thereof; (b) a determination by the
Special Servicer as set forth below or (c) the passage of ninety (90) days from
the date of preparation of the first Asset Status Report. The Special Servicer
may, from time to time, subject to Section 3.24(b), modify any Asset Status
Report it has previously delivered and implement the new action in such revised
report so long as such revised report has been prepared, reviewed and not
rejected as provided above.
Notwithstanding the prior paragraph, the Special Servicer may:
(i) take any action set forth in an Asset Status Report before the expiration of
the ten (10) Business Day period during which the Controlling Class
Representative may reject such report if (A) the Special Servicer has reasonably
determined that failure to take such action would materially and adversely
affect the interests of the Certificateholders and (B) it has made a reasonable
effort to contact the Controlling Class Representative; and (ii) determine
whether any affirmative disapproval of an Asset Status Report is not in the best
interest of all the Certificateholders pursuant to the Servicing Standard. Upon
making any such determination referred to in clause (ii) of the prior sentence,
the Special Servicer shall notify the Trustee of such determination and deliver
to the Trustee a proposed notice to Certificateholders which is to include a
copy of the relevant Asset Status Report. The Trustee shall thereupon send such
notice to all Certificateholders; and, if the Holders of Certificates
representing a majority of the Voting Rights fail, within ten (10) Business Days
of the Trustee's sending such notice, to reject such Asset Status Report, the
Special Servicer shall implement the same. If the Asset Status Report is
rejected within such ten (10) Business Day period by the Holders of Certificates
representing a majority of the Voting Rights, the Special Servicer shall,
subject to Section 3.24(b), revise such Asset Status Report as described above.
The Trustee shall be entitled to reimbursement from the Trust for the reasonable
out-of-pocket expenses of providing such notices.
The Special Servicer may not take any action inconsistent with
an Asset Status Report that has been adopted as described above, unless such
action would be required in order to act in accordance with the Servicing
Standard.
(b) Notwithstanding anything herein to the contrary, any
action recommended by the Special Servicer in an Asset Status Report (or any
revision thereof) shall be consistent with the Servicing Standard and the other
sections of this Agreement, and the Controlling Class Representative may not
direct the Special Servicer to act in any manner (and the Special Servicer shall
disregard any such direction) that would:
-127-
<PAGE>
(i) require or cause the Special Servicer to violate the terms
of a Specially Serviced Mortgage Loan, applicable law or any provision
of this Agreement, including the Special Servicer's obligation to act
in accordance with the Servicing Standard; or
(ii) result in an Adverse REMIC Event with respect to any
REMIC Pool or an Adverse Grantor Trust Event with respect to any
Grantor Trust Pool; or
(iii) expose the Master Servicer, the Special Servicer, the
Depositor, any Mortgage Loan Seller, the Trust, the Trustee or their
Affiliates, officers, directors, employees or agents to any claim, suit
or liability; or
(iv) materially expand the scope of the Special Servicer's,
the Master Servicer's or the Trustee's responsibilities under this
Agreement.
In addition, the Special Servicer shall not have any
obligation to consult with or notify any Controlling Class Representative prior
to acting, and the provisions of this Agreement requiring such shall be of no
effect, during the period prior to the initial selection of a Controlling Class
Representative and, if any Controlling Class Representative resigns or is
removed, during the period following such resignation or removal until a
replacement is selected.
(c) The Controlling Class Representative will have no
liability to the Certificateholders for any action taken, or for refraining from
the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that the Controlling Class Representative
will not be protected against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations or duties. Each
Certificateholder acknowledges and agrees, by its acceptance of its
Certificates, that the Controlling Class Representative may have special
relationships and interests that conflict with those of Holders of one or more
Classes of Certificates, that the Controlling Class Representative may act
solely in the interests of the Holders of the Controlling Class, that the
Controlling Class Representative does not have any duties to the Holders of any
Class of Certificates other than the Controlling Class, that the Controlling
Class Representative may take actions that favor interests of the Holders of the
Controlling Class over the interests of the Holders of one or more other Classes
of Certificates, that the Controlling Class Representative shall not be deemed
to have been negligent or reckless, or to have acted in bad faith or engaged in
willful misfeasance, by reason of its having acted solely in the interests of
the Holders of the Controlling Class, and that the Controlling Class
Representative shall have no liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Controlling Class
Representative or any director, officer, employee, agent or principal thereof
for having so acted.
-128-
<PAGE>
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts
on deposit in the Distribution Account for the following purposes and in the
following order of priority, in each case to the extent of the remaining portion
of the Available Distribution Amount for such Distribution Date:
(i) to make distributions of interest to the Holders of
the respective Classes of Senior Certificates, pro rata based on
entitlement, up to an amount equal to all Distributable Certificate
Interest in respect of each such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(ii) to make distributions of principal to the Holders
of the Class A-1A and Class A-1B Certificates, allocable as between
such Classes of Certificateholders as provided below, up to an amount
equal to the lesser of (A) the aggregate of the then outstanding Class
Principal Balances of the Class A-1A and Class A-1B Certificates and
(B) the Principal Distribution Amount for such Distribution Date;
(iii) to reimburse the Holders of the Class A-1A and
Class A-1B Certificates, pro rata based on entitlement, up to an amount
equal to all Unreimbursed Principal Balance Reductions, if any,
previously incurred with respect to each such Class of Certificates;
(iv) to make distributions of interest to the Holders of
the Class A-2 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(v) after the Class Principal Balances of the Class
A-1A and Class A-1B Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class A-2
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class A-2 Certificates and
(B) the excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clause (ii) above;
(vi) to reimburse the Holders of the Class A-2
Certificates, up to an amount equal to all Unreimbursed Principal
Balance Reductions, if any, previously incurred with respect to such
Class of Certificates;
(vii) to make distributions of interest to the Holders of
the Class A-3 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
-129-
<PAGE>
(viii) after the Class Principal Balances of the Class
A-1A, Class A-1B and Class A-2 Certificates have been reduced to zero,
to make distributions of principal to the Holders of the Class A-3
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class A-3 Certificates and
(B) the excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii) and (v) above;
(ix) to reimburse the Holders of the Class A-3
Certificates, up to an amount equal to all Unreimbursed Principal
Balance Reductions, if any, previously incurred with respect to such
Class of Certificates;
(x) to make distributions of interest to the Holders of
the Class A-4 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xi) after the Class Principal Balances of the Class
A-1A, Class A-1B, Class A-2 and Class A-3 Certificates have been
reduced to zero, to make distributions of principal to the Holders of
the Class A-4 Certificates, up to an amount equal to the lesser of (A)
the then outstanding Class Principal Balance of the Class A-4
Certificates and (B) the excess, if any, of the Principal Distribution
Amount for such Distribution Date over the amounts, if any, distributed
on such Distribution Date pursuant to clauses (ii), (v) and (viii)
above;
(xii) to reimburse the Holders of the Class A-4
Certificates, up to an amount equal to all Unreimbursed Principal
Balance Reductions, if any, previously incurred with respect to such
Class of Certificates;
(xiii) to make distributions of interest to the Holders of
the Class B-1 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xiv) after the Class Principal Balances of the Class A
Certificates have been reduced to zero, to make distributions of
principal to the Holders of the Class B-1 Certificates, up to an amount
equal to the lesser of (A) the then outstanding Class Principal Balance
of the Class B-1 Certificates and (B) the excess, if any, of the
Principal Distribution Amount for such Distribution Date over the
amounts, if any, distributed on such Distribution Date pursuant to
clauses (ii), (v), (viii) and (xi) above;
(xv) to reimburse the Holders of the Class B-1
Certificates, up to an amount equal to all Unreimbursed Principal
Balance Reductions, if any, previously incurred with respect to such
Class of Certificates;
(xvi) to make distributions of interest to the Holders of
the Class B-2 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
-130-
<PAGE>
(xvii) after the Class Principal Balances of the Class A
and Class B-1 Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class B-2
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class B-2 Certificates and
(B) the excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v), (viii), (xi) and (xiv)
above;
(xviii) to reimburse the Holders of the Class B-2
Certificates, up to an amount equal to all Unreimbursed Principal
Balance Reductions, if any, previously incurred with respect to such
Class of Certificates;
(xix) to make distributions of interest to the Holders of
the Class B-3 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xx) after the Class Principal Balances of the Class A,
Class B-1 and Class B-2 Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class B-3
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class B-3 Certificates and
(B) the excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v), (viii), (xi), (xiv)
and (xvii) above;
(xxi) to reimburse the Holders of the Class B-3
Certificates, up to an amount equal to all Unreimbursed Principal
Balance Reductions, if any, previously incurred with respect to such
Class of Certificates;
(xxii) to make distributions of interest to the Holders of
the Class B-4 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxiii) after the Class Principal Balances of the Class A,
Class B-1, Class B-2 and Class B-3 Certificates have been reduced to
zero, to make distributions of principal to the Holders of the Class
B-4 Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class B-4 Certificates and
(B) the excess, if any, of the Principal Distribution Amount for such
Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v), (viii), (xi), (xiv),
(xvii) and (xx) above;
(xxiv) to reimburse the Holders of the Class B-4
Certificates, up to an amount equal to all Unreimbursed Principal
Balance Reductions, if any, previously incurred with respect to such
Class of Certificates;
(xxv) to make distributions of interest to the Holders of
the Class B-5 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
-131-
<PAGE>
(xxvi) after the Class Principal Balances of the Class A,
Class B-1, Class B-2, Class B-3 and Class B-4 Certificates have been
reduced to zero, to make distributions of principal to the Holders of
the Class B-5 Certificates, up to an amount equal to the lesser of (A)
the then outstanding Class Principal Balance of the Class B-5
Certificates and (B) the excess, if any, of the Principal Distribution
Amount for such Distribution Date over the amounts, if any, distributed
on such Distribution Date pursuant to clauses (ii), (v), (viii), (xi),
(xiv), (xvii), (xx) and (xxiii) above;
(xxvii) to reimburse the Holders of the Class B-5
Certificates, up to an amount equal to all Unreimbursed Principal
Balance Reductions, if any, previously incurred with respect to such
Class of Certificates;
(xxviii) to make distributions of interest to the Holders of
the Class B-6 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxix) after the Class Principal Balances of the Class A,
Class B-1, Class B-2, Class B-3, Class B-4 and Class B-5 Certificates
have been reduced to zero, to make distributions of principal to the
Holders of the Class B-6 Certificates, up to an amount equal to the
lesser of (A) the then outstanding Class Principal Balance of the Class
B-6 Certificates and (B) the excess, if any, of the Principal
Distribution Amount for such Distribution Date over the amounts, if
any, distributed on such Distribution Date pursuant to clauses (ii),
(v), (viii), (xi), (xiv), (xvii), (xx), (xxiii) and (xxvi) above;
(xxx) to reimburse the Holders of the Class B-6
Certificates, up to an amount equal to all Unreimbursed Principal
Balance Reductions, if any, previously incurred with respect to such
Class of Certificates;
(xxxi) to make distributions of interest to the Holders of
the Class B-7 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxii) after the Class Principal Balances of the Class A,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates have been reduced to zero, to make distributions of
principal to the Holders of the Class B-7 Certificates, up to an amount
equal to the lesser of (A) the then outstanding Class Principal Balance
of the Class B-7 Certificates and (B) the excess, if any, of the
Principal Distribution Amount for such Distribution Date over the
amounts, if any, distributed on such Distribution Date pursuant to
clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi)
and (xxix) above;
(xxxiii) to reimburse the Holders of the Class B-7
Certificates, up to an amount equal to all Unreimbursed Principal
Balance Reductions, if any, previously incurred with respect to such
Class of Certificates;
(xxxiv) to make distributions of interest to the Holders of
the Class B-8 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
-132-
<PAGE>
(xxxv) after the Class Principal Balances of the Class A,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6 and
Class B-7 Certificates have been reduced to zero, to make distributions
of principal to the Holders of the Class B-8 Certificates, up to an
amount equal to the lesser of (A) the then outstanding Class Principal
Balance of the Class B-8 Certificates and (B) the excess, if any, of
the Principal Distribution Amount for such Distribution Date over the
amounts, if any, distributed on such Distribution Date pursuant to
clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi),
(xxix) and (xxxii) above;
(xxxvi) to reimburse the Holders of the Class B-8
Certificates, up to an amount equal to all Unreimbursed Principal
Balance Reductions, if any, previously incurred with respect to such
Class of Certificates;
(xxxvii) to make distributions of interest to the Holders of
the Class C Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxviii) after the Class Principal Balances of the Class A
and Class B Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class C Certificates,
up to an amount equal to the lesser of (A) the then outstanding Class
Principal Balance of the Class C Certificates and (B) the excess, if
any, of the Principal Distribution Amount for such Distribution Date
over the amounts, if any, distributed on such Distribution Date
pursuant to clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx),
(xxiii), (xxvi), (xxix), (xxxii) and (xxxv) above;
(xxxix) to reimburse the Holders of the Class C
Certificates, up to an amount equal to all Unreimbursed Principal
Balance Reductions, if any, previously incurred with respect to such
Class of Certificates;
(xl) to make distributions to the Holders of the Class
R-III Certificates, up to an amount equal to the excess, if any, of (A)
the aggregate distributions deemed made in respect of the REMIC II
Regular Interests on such Distribution Date pursuant to Section
4.01(i), over (B) the aggregate distributions made in respect of the
Regular Interest Certificates on such Distribution Date pursuant to
clauses (i) through (xxxix) above;
(xli) to make distributions to the Holders of the Class
R-II Certificates, up to an amount equal to the excess, if any, of (A)
the aggregate distributions deemed made in respect of the REMIC I
Regular Interests on such Distribution Date pursuant to Section
4.01(j), over (B) the aggregate distributions deemed made in respect of
the REMIC II Regular Interests on such Distribution Date pursuant to
Section 4.01(i); and
(xlii) to make distributions to the Holders of the Class
R-I Certificates, up to an amount equal to the excess, if any, of (A)
the Available Distribution Amount for such Distribution Date, over (B)
the aggregate distributions made in respect of the other Classes of
Certificates on such Distribution Date pursuant to clauses (i) through
(xli) above;
-133-
<PAGE>
provided, that, on the Final Distribution Date, the distributions of principal
to be made pursuant to clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx),
(xxiii), (xxvi), (xxix), (xxxii), (xxxv) and (xxxviii) above shall, in each such
case, subject to the then remaining portion of the Available Distribution Amount
for such date, be made to the Holders of the relevant Class or Classes of
Principal Balance Certificates otherwise entitled to distributions of principal
pursuant to such clause in an amount equal to the entire then remaining Class
Principal Balance (or, in the case of clause (ii) above, if applicable, the
entire aggregate of the then remaining Class Principal Balances) of such Class
or Classes of Certificates outstanding immediately prior to such Final
Distribution Date.
On each Distribution Date prior to the earlier of (i) the
Senior Principal Distribution CrossOver Date and (ii) the Final Distribution
Date, the Trustee shall pay the distributions of principal made on the Class
A-1A and Class A-1B Certificates pursuant to clause (ii) above, first, to the
Holders of the Class A-1A Certificates, until the Class Principal Balance of
such Class has been reduced to zero, and thereafter, to the Holders of the Class
A-1B Certificates, until the Class Principal Balance of such Class has been
reduced to zero. On any Distribution Date coinciding with or following the
Senior Principal Distribution Cross-Over Date, and (in any event) on the Final
Distribution Date, the Trustee shall pay the distributions of principal made on
the Class A-1A and Class A-1B Certificates pursuant to clause (ii) above to the
Holders of both the A-1A Certificates and the Class A-1B Certificates, on a pro
rata basis, in accordance with the respective Class Principal Balances of such
Classes outstanding immediately prior to such Distribution Date, until the Class
Principal Balance of each such Class has been reduced to zero.
All distributions of interest made in respect of the Class S
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of the Class S REMIC III Regular Interests,
on a pro rata basis in accordance with the respective amounts of Distributable
Component Interest in respect of each Class S REMIC III Regular Interest for
such Distribution Date and, to the extent not previously deemed paid pursuant to
this paragraph, for all prior Distribution Dates.
(b) If a Yield Maintenance Charge is collected with respect to
any Mortgage Loan during any particular Collection Period, then the Trustee
shall, on the Distribution Date corresponding to such Collection Period,
withdraw from the Distribution Account and distribute among the Holders of the
respective Classes of Regular Interest Certificates in the proportions set forth
below the entire amount of such Yield Maintenance Charge as additional interest:
(i) The Holders of each Class of Principal Balance
Certificates then entitled to distributions of principal on such
Distribution Date shall be entitled to an amount equal to the product
of (A) the amount of such Yield Maintenance Charge that is so
distributable, multiplied by (B) a fraction (not greater than one or
less than zero), the numerator of which is equal to the excess, if any,
of the Pass-Through Rate applicable to such Class of Principal Balance
Certificates for the corresponding Interest Accrual Period, over the
relevant Discount Rate, and the denominator of which is equal to the
excess, if any, of the Mortgage Rate for the Mortgage Loan in respect
of which such Yield Maintenance Charge was received, over the relevant
Discount Rate, multiplied by (C) a fraction (not greater than one or
less than zero), the numerator of which is equal to the aggregate
distributions of principal payable to the Holders of such Class of
Principal Balance Certificates on such Distribution Date, and the
denominator of which is equal to the Principal Distribution Amount for
such Distribution Date.
-134-
<PAGE>
(ii) Any portion of such Yield Maintenance Premium that may
remain after such distributions on the Principal Balance Certificates
will be distributed to the Holders of the Class S Certificates.
For purposes of the foregoing paragraph, the "Discount Rate"
shall be the rate which, when compounded monthly, is equivalent to the Treasury
Rate when compounded semi-annually (e.g., a 6% per annum Treasury Rate would
equate to a 5.9263% per annum Discount Rate). The "Treasury Rate" is: (i) in the
case of any GECA Mortgage Loan or Column Mortgage Loan the yield calculated by
the linear interpolation of the yields, as reported in Federal Reserve
Statistical Release H.15--Selected Interest Rates under the heading "U.S.
government securities/Treasury constant maturities" for the week ending prior to
the date of the relevant principal prepayment, of U.S. Treasury constant
maturities with a maturity date (one longer and one shorter) most nearly
approximating (A) in the case of any GECA Mortgage Loan, the weighted average
life (calculated in accordance with the related loan documents) of the prepaid
Mortgage Loan immediately prior to the prepayment and (B) in the case of any
Column Mortgage Loan, the Stated Maturity Date (or, in the case of any Column
Mortgage Loan that is an ARD Loan, the Anticipated Repayment Date) of the
prepaid Mortgage Loan; (ii) in the case of any GSMC Mortgage Loan (other than
the Mortgage Loan (loan number 95) secured by the Mortgaged Property identified
on the Mortgage Loan Schedule as West Ashley Shoppes Shopping Center), the yield
on the U.S. Treasury security selected in the applicable Mortgage Note for any
such Mortgage Loan as published in The Wall Street Journal; and (iii) in the
case of the GSMC Mortgage Loan (loan number 95) secured by the Mortgaged
Property identified on the Mortgage Loan Schedule as the West Ashley Shoppes
Shopping Center, the yield on the non-callable U.S. Treasury issue with a
maturity date closest to the maturity date of the Mortgage Loan, with such yield
being based on the bid price for such issue as published in The Wall Street
Journal on the prepayment date and converted to a monthly compounded nominal
yield. If Release H.15 or The Wall Street Journal is no longer published, the
Master Servicer shall select a comparable publication to determine the Treasury
Rate.
If a Prepayment Premium is collected with respect to any
Mortgage Loan during any particular Collection Period, then the Trustee shall,
on the Distribution Date corresponding to such Collection Period, withdraw from
the Distribution Account and distribute to the Holders of the Class S
Certificates the entire amount of such Prepayment Premium as additional
interest.
Any Prepayment Premiums and/or Yield Maintenance Charges
distributed in respect of the Class S Certificates on any Distribution Date
pursuant to the foregoing paragraphs of this Section 4.01(b) shall be deemed to
have been distributed in respect of the Class S REMIC III Regular Interests, on
a pro rata basis, in accordance with the respective amounts of Distributable
Component Interest for such Distribution Date.
(c) On each Distribution Date, the Trustee shall withdraw from
the Distribution Account any amounts then on deposit in the Class D-1
Sub-Account of the Distribution Account that represent Additional Interest
collected during or prior to the related Collection Period in respect of GECA
Mortgage Loans that are ARD Loans and shall distribute such amounts to the
Holders of the Class D-1 Certificates. On each Distribution Date, the Trustee
shall withdraw from the Distribution Account any amounts then on deposit in the
Class D-2 Sub-Account of the Distribution Account that represent Additional
Interest collected during or prior to the related Collection Period in respect
of Column Mortgage Loans that are ARD Loans and shall distribute such amounts to
the Holders of the Class D-2 Certificates.
-135-
<PAGE>
(d) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among such
Certificates based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions made with respect to each Class of
Certificates on each Distribution Date shall be made to the Holders of such
Certificates of record at the close of business on the related Record Date and,
in the case of each such Holder, shall be made by wire transfer of immediately
available funds to the account thereof at a bank or other entity having
appropriate facilities therefor, if such Holder shall have provided the Trustee
with wiring instructions no less than five (5) Business Days prior to the
related Record Date (which wiring instructions may be in the form of a standing
order applicable to all subsequent Distribution Dates), and otherwise shall be
made by check mailed to the address of such Holder as it appears in the
Certificate Register. The final distribution on each Certificate (determined, in
the case of a Principal Balance Certificate, without regard to any possible
future reimbursement of any portion of a previously incurred Unreimbursed
Principal Balance Reduction allocable to such Certificate) will be made in like
manner, but only upon presentation and surrender of such Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution. Any distribution that
is to be made with respect to a Principal Balance Certificate in reimbursement
of any portion of an Unreimbursed Principal Balance Reduction allocable to such
Certificate, which reimbursement is to occur after the date on which such
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the Holder that surrendered such Certificate at the last
address set forth for such Holder in the Certificate Register or at any other
address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the parties hereto shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law. The Trustee and the Depositor
shall perform their respective obligations under the Letter of Representations
among the Depositor, the Trustee and the initial Depository, a copy of which
Letter of Representations is attached hereto as Exhibit C.
(f) The rights of the Certificateholders to receive
distributions from the proceeds of the Trust Fund in respect of their
Certificates, and all rights and interests of the Certificateholders in and to
such distributions, shall be as set forth in this Agreement. Neither the Holders
of any Class of Certificates nor any party hereto shall in any way be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts properly previously distributed on the Certificates.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date (such final distribution
to be determined, in the case of a Class of Principal Balance Certificates,
without regard to any possible future reimbursement of any portion of a
previously incurred Unreimbursed Principal Balance Reduction in respect of such
Class), the Trustee shall, as promptly as possible (and, in any event, no later
than five (5) days) after the related Determination Date, mail to each Holder of
record on such date of such Class of Certificates a notice to the effect that:
-136-
<PAGE>
(i) the Trustee expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at
the office of the Certificate Registrar or at such other location
therein specified, and
(ii) no interest shall accrue on such Certificates from and
after the end of the Interest Accrual Period for such Distribution
Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six (6) months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one (1) year
after the second notice all such Certificates shall not have been surrendered
for cancellation, then the Trustee, directly or through an agent, shall take
such steps to contact the remaining non-tendering Certificateholders concerning
the surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for cancellation by the second anniversary of the delivery
of the second notice, then, subject to applicable escheat laws, the Trustee
shall distribute to the Class R-III Certificateholders all unclaimed funds.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from payments of interest or original issue discount to
any Certificateholder pursuant to federal withholding requirements, the Trustee
shall indicate the amount withheld to such Certificateholder.
(i) All distributions made in respect of each Class of
Principal Balance Certificates on each Distribution Date pursuant to Section
4.01(a) or 4.01(b) shall be deemed to have first been distributed from REMIC II
to REMIC III in respect of the Corresponding REMIC II Regular Interest for such
Class of Principal Balance Certificates; and all distributions made in respect
of the Class S Certificates on each Distribution Date pursuant to Section
4.01(a) or 4.01(b), and allocable to any particular Class S REMIC III Regular
Interest, shall be deemed to have first been distributed from REMIC II to REMIC
III in respect of the Corresponding REMIC II Regular Interest for such Class S
REMIC III Regular Interest. In each case, if such distribution on any such Class
of Certificates was a distribution of interest, of principal, of additional
interest (in the form of Prepayment Premiums or Yield Maintenance Charges) or in
reimbursement of any related Unreimbursed Principal Balance Reductions in
respect of such Class of Certificates, then the corresponding distribution
deemed to be made on a REMIC II Regular Interest pursuant to the preceding
sentence shall be deemed also to be a distribution of interest, of principal, of
additional interest (in the form of Prepayment Premiums or Yield Maintenance
Charges) or in reimbursement of any related Unreimbursed Principal Balance
Reductions in respect of such REMIC II Regular Interest. The actual
distributions made by the Trustee on each Distribution Date in respect of the
REMIC III Certificates pursuant to Section 4.01(a)
-137-
<PAGE>
or 4.01(b), as applicable, shall be deemed to have been so made from the amounts
deemed distributed in respect of the REMIC II Regular Interests on such
Distribution Date pursuant to this Section 4.01(i). Notwithstanding the deemed
distributions on the REMIC II Regular Interests described in this Section
4.01(i), actual distributions of funds from the Distribution Account shall be
made only in accordance with Section 4.01(a), 4.01(b) or 4.01(c), as applicable.
(j) On each Distribution Date, immediately prior to making any
actual distributions on the REMIC III Certificates pursuant to Section 4.01(a)
or the corresponding deemed distributions on the REMIC II Regular Interests
pursuant to Section 4.01(i), the Trustee shall be deemed to have made out of the
Available Distribution Amount for such Distribution Date, the following
distributions in the following order of priority, in each case to the extent of
the remaining portion of such Available Distribution Amount:
first, distributions of interest to REMIC II in respect of all
the REMIC I Regular Interests, up to an amount equal to, and
pro rata among the REMIC I Regular Interests in accordance
with, all Uncertificated Distributable Interest in respect of
each REMIC I Regular Interest for such Distribution Date and,
to the extent not previously deemed paid pursuant to this
Section 4.01(j), for all prior Distribution Dates;
second, distributions of principal to REMIC II in respect of
all the REMIC I Regular Interests, up to an amount equal to,
and pro rata among the REMIC I Regular Interests in accordance
with, that portion, if any, of the Principal Distribution
Amount attributable to each and every Mortgage Loan and/or REO
Mortgage Loan, as the case may be, that relates to each REMIC
I Regular Interest; and
third, distributions to REMIC II in respect of all the REMIC I
Regular Interests (including any REMIC I Regular Interests
whose Uncertificated Principal Balances have previously been
reduced to zero), up to an amount equal to, in reimbursement
of, and pro rata in accordance with, all Unreimbursed
Principal Balance Reductions, if any, previously incurred in
respect of each REMIC I Regular Interest.
In addition, on each Distribution Date, immediately prior to
making any actual distributions on the REMIC III Certificates pursuant to
Section 4.01(b) or the corresponding deemed distributions on the REMIC II
Regular Interests pursuant to Section 4.01(i), the Trustee shall be deemed to
have distributed to REMIC II each Prepayment Premium and Yield Maintenance
Charge then on deposit in the Distribution Account that was received on any
Mortgage Loan or REO Mortgage Loan during or prior to the related Collection
Period, such distribution to be deemed made in respect of the REMIC I Regular
Interest that relates to such Mortgage Loan or REO Mortgage Loan, as the case
may be.
The distributions deemed made by the Trustee on each
Distribution Date in respect of the REMIC II Regular Interests pursuant to
Section 4.01(i), as well as the distributions actually made by the Trustee on
each Distribution Date in respect of the Class R-II and REMIC III Certificates
pursuant to Section 4.01(a) and/or Section 4.01(b), shall be deemed to have been
so made or deemed made, as the case may be, from the amounts deemed distributed
in respect of the REMIC I Regular Interests on such Distribution Date pursuant
to this Section 4.01(j). Notwithstanding the deemed distributions on the REMIC I
Regular Interests described in this Section 4.01(j), actual distributions of
funds from the Distribution Account shall be made only in accordance with
Section 4.01(a), 4.01(b) or 4.01(c), as applicable.
-138-
<PAGE>
(k) Payments of principal, interest, Prepayment Premiums and
Yield Maintenance Charges on any Loan REMIC Regular Interest shall match the
payments of principal, interest, Prepayment Premiums and Yield Maintenance
Charges on the related Mortgage Loan or successor REO Mortgage Loan, except that
Holders of the Class R-I Certificates shall receive any proceeds with respect to
any related REO Property in excess of the amounts due under such Mortgage Loan
or successor REO Mortgage Loan (net, if applicable, of expenses or advances,
including interest).
SECTION 4.02. Statements to Certificateholders; Certain Other
Reports.
(a) Based solely on information provided to the Trustee by the
Master Servicer and the Special Servicer pursuant to Sections 3.12, 4.02(b) and
4.02(c), the Trustee shall prepare (or cause to be prepared) and, on each
Distribution Date, provide or make available electronically (or, upon request,
by first class mail) to the Depositor, the Mortgage Loan Sellers, the
Underwriters, the Rating Agencies, the Controlling Class Representative, each
Certificateholder and, to the extent that the Trustee has in accordance with
Section 5.06(b) confirmed the Ownership Interest in the Certificates held
thereby, each Certificate Owner a statement substantially in the form of, and
containing the information set forth in, Exhibit E-1 hereto (the "Trustee
Report"), detailing the distributions on such Distribution Date and the
performance, both in the aggregate and individually to the extent available, of
the Mortgage Loans and the Mortgaged Properties; provided that the Trustee need
not deliver to the Depositor, the Mortgage Loan Sellers, the Underwriters, the
Rating Agencies or the Controlling Class Representative any Trustee Report that
has been made available via the Trustee's Internet Website as provided below;
and provided, further, that the Trustee has no affirmative obligation to
discover the identities of Certificate Owners and need only react to Persons
claiming to be Certificate Owners in accordance with such Section 5.06.
Notwithstanding the foregoing, any delivery of such reports to Fitch shall be
made by first class mail.
On each Distribution Date, the Trustee shall provide or make
available electronically (or, upon request, by first class mail) to the
Depositor, the Mortgage Loan Sellers, the Underwriters, the Rating Agencies, the
Controlling Class Representative, each Certificateholder and each Certificate
Owner to which a Trustee Report was forwarded on such Distribution Date, a copy
of the following reports delivered to it by the Master Servicer pursuant to
Section 3.12(d) since the preceding Distribution Date (or, in the case of the
initial Distribution Date, since the Closing Date): (i) the Delinquent Loan
Status Report; (ii) the Historical Loss Estimate Report; (iii) the Historical
Loan Modification Report; (iv) the REO Status Report; (v) the Watch List Report;
and (vi) the Comparative Financial Status Report. The Trustee shall provide or
make available electronically on each Distribution Date (or, upon request, by
first class mail) to the Depositor, GECA, the Rating Agencies, the Controlling
Class Representative, each Certificateholder and each Certificate Owner to which
a Trustee Report was forwarded on such Distribution Date a copy of the CSSA Loan
Periodic Update File containing information regarding each Mortgage Loan and the
CSSA Property File containing information regarding each Mortgaged Property and
REO Property as of the end of the related Collection Period. The Trustee shall
have no obligation to provide the information or reports described in this
Section 4.02(a) until it has received the requisite information or reports from
the Master Servicer, and the Trustee shall not be in default hereunder due to a
delay in providing the Certificateholder Reports caused by the Master Servicer's
failure to timely deliver any information or reports hereunder. The Trustee
Report, the CSSA Loan Periodic Update File, the CSSA Property File and the
reports referred to in the first sentence of this paragraph collectively
constitute the "Certificateholder Reports". Absent manifest error, none of the
Master Servicer, the Special Servicer or the Trustee shall be responsible for
the accuracy or completeness of any information supplied to it by a Borrower or
third party that is included in any reports,
-139-
<PAGE>
statements, materials or information prepared or provided by the Master
Servicer, the Special Servicer or the Trustee, as applicable. None of the
Trustee, the Master Servicer or the Special Servicer shall have any obligation
to verify the accuracy or completeness of any information provided by a
Borrower, a third party or each other.
The Trustee shall make available each month, to
Certificateholders, Certificate Owners, prospective investors and any other
interested party, via the Trustee's Internet Website, all Trustee Reports and
Unrestricted Servicer Reports and, with the consent or at the direction of the
Depositor, such other information regarding the Certificates and/or the Mortgage
Loans as the Trustee may have in its possession; provided that, unless (i) the
particular report or information has been filed with the Commission pursuant to
Section 8.15 or (ii) the Depositor has notified the Trustee that DLJSC has sold
the Non-Registered Certificates to unaffiliated third parties, access to such
reports and information on the Trustee's Internet Website will be password
protected to the same extent, and limited to the same Persons, as the Restricted
Servicer Reports. After the Trustee shall have received the notice from the
Depositor regarding the sale of the Non-Registered Certificates, as described in
the preceding sentence, the Trustee shall make the Distribution Date Statement
available to any interested party via the electronic bulletin board and the
fax-on-demand service. The Trustee shall make the Restricted Servicer Reports
available each month, via the Trustee's Internet Website, to any
Certificateholder, Certificate Owner, any Person identified by any
Certificateholder or Certificate Owner as a prospective transferee of a
Certificate or interest therein, GECA, GSMC, the Underwriters, Column, any
Rating Agency, the Controlling Class Representative or any party hereto, with
the use of a password provided by the Trustee to such person upon receipt by the
Trustee from such Person of a certification substantially in the form of Exhibit
L-1 or Exhibit L-2, as applicable; provided, however, that the Trustee shall
provide such password to each party hereto, the Controlling Class
Representative, GECA, GSMC, Column and each Rating Agency without requiring such
certification. In addition, the Trustee is hereby directed and authorized to
make available, as a convenience to interested parties (and not in furtherance
of the distribution of the Prospectus or the Prospectus Supplement under the
securities laws), this Agreement, the Prospectus and the Prospectus Supplement
via the Trustee's Internet Website. The Trustee will make no representations or
warranties as to the accuracy or completeness of such documents and will assume
no responsibility therefor.
The Trustee's Internet Website shall be located at
"www.ctslink.com/cmbs" or at such other address as shall be specified by the
Trustee from time to time in the Trustee Report and in one or more written
notices delivered to the other parties hereto, the Controlling Class
Representative (if any), the Certificateholders and the Rating Agencies. In
connection with providing access to the Trustee's Internet Website and
electronic bulletin board, the Trustee may require registration and the
acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Trustee Report and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(b) By 3:30 p.m. New York City time on the second Business Day
after each Determination Date, the Master Servicer shall deliver to the Trustee
the CSSA Loan Periodic Update File, reflecting information as of the close of
business on the last day of the Collection Period, in a mutually agreeable
electronic format. Such CSSA Loan Periodic Update File and any written
information
-140-
<PAGE>
supplemental thereto shall include such information with respect to the Mortgage
Loans that is required by the Trustee for purposes of making the calculations
and preparing the reports for which the Trustee is responsible pursuant to
Section 4.01, this Section 4.02, Section 4.05 or any other section of this
Agreement, as set forth in written specifications or guidelines issued by the
Trustee from time to time. Such information may be delivered by the Master
Servicer to the Trustee by telecopy or in such electronic or other form as may
be reasonably acceptable to the Trustee and the Master Servicer. The Special
Servicer shall from time to time (and, in any event, as may be reasonably
required by the Master Servicer) provide the Master Servicer with such
information in its possession regarding the Specially Serviced Mortgage Loans
and REO Properties as may be necessary for the Master Servicer to prepare each
report and any supplemental information to be provided by the Master Servicer to
the Trustee.
Notwithstanding the foregoing, the failure of the Master
Servicer or Special Servicer to disclose any information otherwise required to
be disclosed pursuant to this Section 4.02(b) or Section 4.02(c) shall not
constitute a breach of this Section 4.02(b) or of Section 4.02(c) to the extent
the Master Servicer or the Special Servicer so fails because such disclosure, in
the reasonable belief of the Master Servicer or the Special Servicer, as the
case may be, would violate any applicable law or any provision of a Mortgage
Loan document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties. The Master Servicer or the Special Servicer
may affix to any information provided by it any disclaimer it deems appropriate
in its reasonable discretion (without suggesting liability on the part of any
other party hereto).
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall prepare, or cause to be prepared, and mail to
each Person who at any time during the calendar year was a Certificateholder (i)
a statement containing the aggregate information set forth on page 2 of Exhibit
E-1 hereto for such calendar year or applicable portion thereof during which
such person was a Certificateholder and (ii) such other customary information as
the Trustee deems necessary or desirable for Certificateholders to prepare their
federal, state and local income tax returns, including the amount of original
issue discount accrued on the Certificates, if applicable. The obligations of
the Trustee in the immediately preceding sentence shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code. As soon as
practicable following the request of any Certificateholder in writing, the
Trustee shall furnish to such Certificateholder such information regarding the
Mortgage Loans and the Mortgaged Properties as such Certificateholder may
reasonably request and, as has been furnished to, or may otherwise be in the
possession of, the Trustee. The Master Servicer and the Special Servicer shall
promptly provide to the Depositor, the REMIC Administrator and the Trustee such
information regarding the Mortgage Loans and the Mortgaged Properties as such
party may reasonably request and that has been furnished to, or may otherwise be
in the possession of, the Master Servicer or the Special Servicer, as the case
may be.
SECTION 4.03. P&I Advances; Advances relating to the Master
Servicer Remittance Amount.
(a) On or before 2:00 p.m., New York City time, on each P&I
Advance Date, the Master Servicer shall, subject Section 4.03(c), either (i)
remit from its own funds to the Trustee for deposit into the Distribution
Account an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in the
Collection Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I
-141-
<PAGE>
Advances, or (iii) make P&I Advances in the form of any combination of (i) and
(ii) aggregating the total amount of P&I Advances to be made. Any amounts held
in the Collection Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Collection Account prior to
the next succeeding Master Servicer Remittance Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and interest in respect of which such P&I Advances were made). If, as
of 3:30 p.m., New York City time, on any P&I Advance Date, the Master Servicer
shall not have made any P&I Advance required to be made on such date pursuant to
this Section 4.03(a) (and shall not have delivered to the Trustee the Officer's
Certificate and other documentation related to a determination of
nonrecoverability of a P&I Advance pursuant to Section 4.03(c)) or shall not
have remitted any portion of the Master Servicer Remittance Amount required to
be remitted on such date, then the Trustee shall provide notice of such failure
to the Master Servicer by facsimile transmission as soon as possible, but in any
event before 4:30 p.m., New York City time, on such P&I Advance Date. If after
such notice the Trustee does not receive the full amount of such P&I Advances by
6:00 p.m., New York City time, on such P&I Advance Date, then the Trustee shall
(not later than 11:00 a.m., New York City time, on the related Distribution
Date) make, and if the Trustee fails to do so, any Fiscal Agent shall (not later
than 12:00 noon, New York City time, on the related Distribution Date) make, the
portion of such P&I Advances that was required to be, but was not, made or
remitted, as the case may be, by the Master Servicer with respect to the related
Distribution Date.
(b) The aggregate amount of P&I Advances to be made by the
Master Servicer in respect of any Distribution Date, subject to Section 4.03(c)
below, shall equal the aggregate of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments, in each case net of any related
Master Servicing Fees, Additional Servicing Fees and Workout Fees, due or deemed
due, as the case may be, in respect of the Mortgage Loans (including Balloon
Mortgage Loans delinquent as to their respective Balloon Payments) and any REO
Mortgage Loans on their respective Due Dates during the related Collection
Period, in each case to the extent such amount was not paid by or on behalf of
the related Borrower or otherwise collected as of the close of business on the
related Determination Date; provided that, if an Appraisal Reduction Amount
exists with respect to any Required Appraisal Loan, then the interest portion of
any P&I Advance required to be made in respect of such Required Appraisal Loan
for the related Distribution Date shall be reduced (it being herein acknowledged
that there shall be no reduction in the principal portion of such P&I Advance)
to equal the product of (i) the amount of the interest portion of such P&I
Advance that would otherwise be required to be made in respect of such Required
Appraisal Loan for such Distribution Date without regard to this proviso,
multiplied by (ii) a fraction, expressed as a percentage, the numerator of which
shall equal the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date, net of the related Appraisal
Reduction Amount, and the denominator of which shall equal the Stated Principal
Balance of such Required Appraisal Loan immediately prior to such Distribution
Date.
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer (or, if applicable, the Trustee or any Fiscal Agent) that it has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be made by such Person in its
reasonable, good faith judgment and shall be evidenced by an Officer's
Certificate delivered to the Depositor, to the Special Servicer, to the
Controlling Class Representative and, if made by the Master Servicer, to the
Trustee (on or before the related P&I Advance Date in the case of a proposed P&I
Advance), setting forth the basis for such determination, accompanied by a copy
of an Appraisal of the related Mortgaged Property or REO Property performed
-142-
<PAGE>
within the twelve (12) months preceding such determination by a Qualified
Appraiser, and further accompanied by any other information, including
engineers' reports, environmental surveys or similar reports, that the Person
making such determination may have obtained and that support such determination.
The Trustee and any Fiscal Agent shall be entitled to conclusively rely on any
nonrecoverability determination made by the Master Servicer with respect to a
particular P&I Advance. The Special Servicer shall promptly furnish any party
required to make P&I Advances hereunder with any information in its possession
regarding the Specially Serviced Mortgage Loans and REO Properties as such party
required to make P&I Advances may reasonably request.
(d) Subject to the next sentence and Section 4.03(e), the
Master Servicer, the Trustee and any Fiscal Agent shall each be entitled to
receive interest at the Reimbursement Rate in effect from time to time, accrued
on the amount of each P&I Advance made thereby (with its own funds), and
compounded monthly, for so long as such P&I Advance is outstanding (or, if such
P&I Advance was made prior to the end of any grace period applicable to the
subject delinquent Monthly Payment, for so long as such P&I Advance is
outstanding following the end of such grace period). Such compound interest
shall be payable: (i) at any time, out of Default Charges collected on the
particular Mortgage Loan or REO Mortgage Loan as to which such P&I Advance
relates; and (ii) to the extent that such Default Charges are insufficient, but
only with respect to that portion of such P&I Advance that has been or is being
reimbursed pursuant to this Agreement, out of general collections on the
Mortgage Loans and REO Properties on deposit in the Collection Account. The
Master Servicer shall reimburse itself, the Trustee or any Fiscal Agent, as
applicable, for any outstanding P&I Advance made thereby as soon as practicable
after funds available for such purpose are deposited in the Collection Account,
and in no event shall interest accrue in accordance with this Section 4.03(d) on
any P&I Advance as to which the corresponding Late Collection was received as of
the related P&I Advance Date.
(e) Notwithstanding any other provision of this Agreement to
the contrary, with respect to any Mortgage Loan as to which the Master Servicer
or an Affiliate thereof owns an equity interest in the related Borrower (but
only for so long as the Master Servicer or such Affiliate owns such equity
interest), if the Master Servicer makes a P&I Advance with respect to such
Mortgage Loan, it shall be entitled to Advance Interest at the Reimbursement
Rate on such P&I Advance only to the extent of (i) any Default Interest and late
payment charges received with respect to such Mortgage Loan (net of any payment
therefrom to the Trustee or the Special Servicer in respect of interest on
Advances related to such Mortgage Loan), and (ii) any Liquidation Proceeds
received with respect to such Mortgage Loan that are in excess of the aggregate
of (A) the outstanding principal balance of such Mortgage Loan, (B) all accrued
and unpaid interest on such Mortgage Loan at the related Mortgage Rate, (C) all
other related and unreimbursed Servicing Advances, (D) any related Liquidation
Expenses, (E) any Additional Trust Fund Expenses related to such Mortgage Loan,
including Advance Interest, and (F) any Liquidation Fee payable to the Special
Servicer in respect of such Mortgage Loan. This subsection shall not limit the
entitlement of the Trustee or any Fiscal Agent to Advance Interest on any P&I
Advance made by the Trustee or such Fiscal Agent in respect of such Mortgage
Loan.
(f) With respect to any Mortgage Loan as to which the Master
Servicer or an Affiliate thereof owns an equity interest in the related Borrower
(but only for so long as the Master Servicer or such Affiliate owns such equity
interest), the Master Servicer shall be entitled to appoint another Person
(which Person is not an Affiliate of the Master Servicer) satisfactory to the
Trustee to make P&I Advances with respect to such Mortgage Loan (such Person, an
"Alternate Advancer"), provided that (i) the Master Servicer
-143-
<PAGE>
shall have given prior written notice specifying the terms of such appointment
(which shall also be satisfactory to the Trustee) to the Special Servicer, the
Trustee and the Rating Agencies and (ii) the Trustee shall have received written
confirmation from each Rating Agency that such appointment will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates. Such
Alternate Advancer shall be entitled to receive reimbursement on any P&I
Advances made by it, together with interest thereon at the Reimbursement Rate,
as and to the same extent as the Master Servicer is entitled thereto with
respect to other Mortgage Loans (that is, without regard to subsection (e) of
this Section 4.03) and the Master Servicer shall be authorized to withdraw funds
from the Collection Account (at the time and in the manner otherwise provided in
this Agreement without regard to subsection (e) of this Section 4.03) in order
to effect such reimbursement and such payment of interest. The appointment of an
Alternate Advancer shall not relieve the Master Servicer of its ultimate
responsibility to make any required Advance, and the failure to make any
required Advance by the Master Servicer or its Alternate Advancer shall also
constitute an Event of Default by the Master Servicer hereunder.
SECTION 4.04. Allocation of Realized Losses and Additional
Trust Fund Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01(a), the
Trustee shall determine the amount, if any, by which (i) the then aggregate of
the Class Principal Balances of all the Classes of Principal Balance
Certificates, exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Pool that will be outstanding immediately following such Distribution
Date. If such excess does exist, then the Class Principal Balances of the Class
C, Class B-8, Class B-7, Class B-6, Class B-5, Class B-4, Class B-3, Class B-2,
Class B-1, Class A-4, Class A-3 and Class A-2 Certificates shall be reduced
sequentially, in that order, until such excess is reduced to zero; provided
that, no such Class of Certificates shall have its Class Principal Balance
reduced unless and until the Class Principal Balance of each other Class of
Certificates, if any, listed in front of it has been reduced to zero; and
provided, further, that if after the foregoing reductions, the amount described
in clause (i) of the preceding sentence still exceeds the amount described in
clause (ii) of such sentence, then the respective Class Principal Balances of
the Class A-1A and Class A-1B Certificates shall be reduced on a pro rata basis
in accordance with the relative sizes of such Class Principal Balances, until
any such remaining excess is reduced to zero. All such reductions in the Class
Principal Balances of the respective Classes of the Principal Balance
Certificates shall constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
(b) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC II Regular Interests on such
date pursuant to Section 4.01(i), the Trustee shall determine the amount, if
any, by which (i) the then aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests, exceeds (ii) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then the Uncertificated Principal
Balances of REMIC II Regular Interest C, REMIC II Regular Interest B-8, REMIC II
Regular Interest B-7, REMIC II Regular Interest B-6, REMIC II Regular Interest
B-5, REMIC II Regular Interest B-4, REMIC II Regular Interest B-3, REMIC II
Regular Interest B-2, REMIC II Regular Interest B-1, REMIC II Regular Interest
A-4, REMIC II Regular Interest A-3 and REMIC II Regular Interest A-2 shall be
reduced sequentially, in that order, until such excess is reduced to zero;
provided that, no such REMIC II Regular Interest shall have its Uncertificated
Principal Balance reduced unless and until the Uncertificated Principal Balance
of each other REMIC II Regular Interest, if any, listed in front of it has been
reduced to zero; and provided, further, that if after the foregoing reductions,
the amount described in clause (i) of the preceding sentence still exceeds the
amount described in clause (ii) of such sentence, then the respective
Uncertificated
-144-
<PAGE>
Principal Balances of REMIC II Regular Interest A-1A and REMIC II Regular
Interest A-1B shall be reduced on a pro rata basis in accordance with the
relative sizes of such Uncertificated Principal Balances, until any such
remaining excess is reduced to zero. All such reductions in the Uncertificated
Principal Balances of the respective REMIC II Regular Interests shall be deemed
to constitute allocations of Realized Losses and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC I Regular Interests pursuant to
Section 4.01(j), the Uncertificated Principal Balance of each REMIC I Regular
Interest (after taking account of such deemed distributions) shall be reduced to
the extent necessary to equal the Stated Principal Balance of the related
Mortgage Loan or REO Mortgage Loan, as the case may be (or, if applicable in
cases involving the substitution of multiple Replacement Mortgage Loans, the
aggregate Stated Principal Balance of each and every related Mortgage Loan
and/or REO Mortgage Loan, as the case may be), that will be outstanding
immediately following such Distribution Date. All such reductions in the
Uncertificated Principal Balances of the respective REMIC I Regular Interests
shall be deemed to constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
SECTION 4.05. Calculations.
The Trustee shall, provided it receives the necessary
information from the Master Servicer and/or Special Servicer, be responsible for
performing all calculations necessary in connection with the actual and deemed
distributions to be made pursuant to Section 4.01, the preparation of the
Trustee Reports pursuant to Section 4.02(a) and the actual and deemed
allocations of Realized Losses and Additional Trust Fund Expenses to be made
pursuant to Section 4.04. The Trustee shall calculate the Available Distribution
Amount for each Distribution Date and shall allocate such amount among
Certificateholders in accordance with this Agreement. Absent actual knowledge of
an error therein, the Trustee shall have no obligation to recompute, recalculate
or otherwise verify any information provided to it by the Master Servicer. The
calculations by the Trustee contemplated by this Section 4.05 shall, in the
absence of manifest error, be presumptively deemed to be correct for all
purposes hereunder.
-145-
<PAGE>
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective
forms attached hereto as Exhibits A-1 through A-6; provided, however, that any
of the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03 beneficial ownership interests in the Class
S, Class A, Class B-1 and Class B-2 Certificates shall initially be held and
transferred through the book-entry facilities of the Depository. The Class S,
Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class B-1 and Class B-2
Certificates will be issuable only in denominations corresponding to initial
Certificate Principal Balances (or, in the case of the Class S Certificates,
initial Certificate Notional Amounts) as of the Closing Date of not less than
$10,000 and in any whole dollar denomination in excess thereof. The other
Principal Balance Certificates will be issuable only in denominations
corresponding to initial Certificate Principal Balances as of the Closing Date
of not less than $100,000 and in any whole dollar denomination in excess
thereof. The Residual Interest Certificates and the Class D Certificates will be
issuable only in denominations representing Percentage Interests in the related
Class of not less than 10.0%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 5.02. Registration of Transfer and Exchange of
Certificates.
(a) At all times during the term of this Agreement, there
shall be maintained at the office of the Certificate Registrar a Certificate
Register in which, subject to such reasonable regulations as the Certificate
Registrar (located as of the Closing Date at Norwest Center, Sixth and
Marquette, Minneapolis, Minnesota 55479-0113) may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee is hereby
initially appointed (and hereby agrees to act in accordance with the terms
hereof) as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Trustee may
appoint, by a written instrument delivered to the other parties hereto, any
other bank or trust company to act as Certificate Registrar under such
conditions as the Trustee may prescribe, provided that
-146-
<PAGE>
the Trustee shall not be relieved of any of its duties or responsibilities
hereunder as Certificate Registrar by reason of such appointment. If the Trustee
resigns or is removed in accordance with the terms hereof, the successor trustee
shall immediately succeed to its predecessor's duties as Certificate Registrar.
The Depositor, the Master Servicer, the Special Servicer and the REMIC
Administrator shall have the right to inspect the Certificate Register or to
obtain a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register.
If three or more Holders make written request to the Trustee,
and such request states that such Holders desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Holders propose to transmit, then the Trustee shall, within thirty (30) days
after the receipt of such request, afford (or cause any other Certificate
Registrar to afford) the requesting Holders access during normal business hours
to, or deliver to the requesting Holders a copy of, the most recent list of
Certificateholders held by the Certificate Registrar (which list shall be
current as of a date no earlier than thirty (30) days prior to the Trustee's
receipt of such request). Every Certificateholder, by receiving such access,
acknowledges that neither the Certificate Registrar nor the Trustee will be held
accountable in any way by reason of the disclosure of any information as to the
names and addresses of any Certificateholder regardless of the source from which
such information was derived.
(b) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate is
to be made without registration under the Securities Act (other than in
connection with the initial issuance of the Certificates or a transfer of any
Non-Registered Certificate by the Depositor), then the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached hereto as
Exhibit F-1A; or (ii) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached hereto as Exhibit F-1B
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached hereto either as Exhibit F-2A or as Exhibit
F-2B; or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect
that such transfer may be made without registration under the Securities Act
(which Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee, any Fiscal Agent or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective Transferee on which such
Opinion of Counsel is based. If any Transferee of a Non-Registered Certificate
or interest therein does not, in connection with the subject transfer, deliver
to the Certificate Registrar one of the certifications described in clause (ii)
of the preceding sentence or the Opinion of Counsel described in clause (iii) of
the preceding sentence, then such Transferee shall be deemed to have represented
and warranted that all the certifications set forth in either Exhibit F-2A or
Exhibit F-2B hereto are, with respect to the subject transfer, true and correct.
None of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify any Class of Non-Registered Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any NonRegistered
Certificate or interest therein without registration or qualification. Any
Certificateholder desiring to effect a transfer, sale, pledge or other
disposition of any Non-Registered Certificate or interest therein
-147-
<PAGE>
shall, and does hereby agree to, indemnify the Depositor, DLJSC, the Trustee,
any Fiscal Agent, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Certificate Registrar against any liability that may
result if such transfer, sale, pledge or other disposition is not exempt from
the registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
(c) No transfer of a Subordinated Certificate or any interest
therein shall be made (A) to any retirement plan or other employee benefit plan,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or the Code (each, a "Plan"), or (B) to any Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of such Certificate or interest therein by the prospective Transferee
would result in a violation of Section 406 of ERISA or Section 4975 of the Code
or would result in the imposition of an excise tax under Section 4975 of the
Code. Except in connection with the initial issuance of the Subordinated
Certificates or any transfer of a Subordinated Certificate by the Depositor or,
in the case of a Book-Entry Subordinated Certificate, any transfer of such
Certificate to a successor Depository or to the applicable Certificate Owner in
accordance with Section 5.03(c), the Certificate Registrar shall refuse to
register the transfer of a Subordinated Certificate unless it has received from
the prospective Transferee, either (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) a certification to the
effect that the purchase and continued holding of such Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel (which Opinion of counsel shall not be an expense of
the Trustee, the Certificate Registrar or the Trust) which otherwise establish
to the reasonable satisfaction of the Trustee that such transfer will not result
in a violation of Section 406 of ERISA or Section 4975 of the Code or result in
the imposition of an excise tax under Section 4975 of the Code. It is hereby
acknowledged that the form of certification attached hereto as Exhibit G is
acceptable for purposes of the preceding sentence. If any Transferee of a
Subordinated Certificate or any interest therein does not, in connection with
the subject transfer, deliver to the Certificate Registrar a certification
and/or Opinion of Counsel as required by the second preceding sentence, then
such Transferee shall be deemed to have represented and warranted that either:
(i) such Transferee is not a Plan and is not directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) the purchase and continued holding
of such Certificate or interest therein by such Transferee is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Sections I and III of Prohibited Transactions Class Exemption
95-60.
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Interest Certificate shall be deemed by the
acceptance or acquisition of such Ownership Interest to have agreed to
be bound by the following provisions and to have irrevocably authorized
the Trustee under clause (ii)(A) below to deliver payments to a Person
other than such Person and to have irrevocably authorized the Trustee
under clause (ii)(B) below to negotiate the terms of any mandatory
disposition and to execute all instruments of Transfer and to do all
other things necessary in connection with any such disposition. The
rights of each Person acquiring any Ownership Interest in a Residual
Interest Certificate are expressly subject to the following provisions:
-148-
<PAGE>
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Interest Certificate shall be a
Permitted Transferee and shall promptly notify the REMIC
Administrator and the Trustee of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Interest Certificate, the
Certificate Registrar shall require delivery to it, and shall
not register the Transfer of any Residual Interest Certificate
until its receipt, of an affidavit and agreement substantially
in the form attached hereto as Exhibit H-1 (a "Transfer
Affidavit and Agreement"), from the proposed Transferee,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring
its Ownership Interest in the Residual Interest Certificate
that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership
Interest in a Residual Interest Certificate it will endeavor
to remain a Permitted Transferee, and that it has reviewed the
provisions of this Section 5.02(d) and agrees to be bound by
them.
(C) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee under clause
(B) above, if a Responsible Officer of either the Trustee or
the Certificate Registrar has actual knowledge that the
proposed Transferee is not a Permitted Transferee, no Transfer
of an Ownership Interest in a Residual Interest Certificate to
such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Residual Interest Certificate shall agree (1) to
require a Transfer Affidavit and Agreement from any
prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Residual Interest
Certificate and (2) not to transfer its Ownership Interest in
such Residual Interest Certificate unless it provides to the
Certificate Registrar and the Trustee a certificate
substantially in the form attached hereto as Exhibit H-2
stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted
Transferee.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Interest Certificate, by purchasing
such Ownership Interest, agrees to give the REMIC
Administrator and the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary
Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring an Ownership Interest in a Residual Interest
Certificate if it is, or is holding an Ownership Interest in a
Residual Interest Certificate on behalf of, a "pass-through
interest holder".
(ii) (A) If any purported Transferee shall become a
Holder of a Residual Interest Certificate in violation of the
provisions of this Section 5.02(d), then the last preceding
Holder of such Residual Interest Certificate that was in
compliance with the provisions of this Section 5.02(d) shall
be restored, to the extent permitted by law, to all rights as
Holder thereof retroactive to the date of registration of such
Transfer of such Residual Interest Certificate. None of the
Depositor, the Trustee or the Certificate Registrar, shall be
under any liability to any Person for any registration of
Transfer of a Residual Interest Certificate that is in fact
not permitted by this Section 5.02(d) or for making any
payments
-149-
<PAGE>
due on such Certificate to the Holder thereof or for taking
any other action with respect to such Holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become a Holder
of a Residual Interest Certificate in violation of the
restrictions in this Section 5.02(d), then, to the extent that
retroactive restoration of the rights of the preceding Holder
of such Residual Interest Certificate as described in clause
(ii) (A) above shall be invalid, illegal or unenforceable, the
Trustee shall have the right but not the obligation, to cause
the transfer of such Residual Interest Certificate to a
Permitted Transferee selected by the Trustee on such terms as
the Trustee may choose, and the Trustee shall not be liable to
any Person having an Ownership Interest in such Residual
Interest Certificate as a result of its exercise of such
discretion. Such purported Transferee shall promptly endorse
and deliver such Residual Interest Certificate in accordance
with the instructions of the Trustee. Such Permitted
Transferee may be the Trustee itself or any Affiliate of the
Trustee.
(iii) The REMIC Administrator shall make available to the IRS
and to those Persons specified by the REMIC Provisions all information
furnished to it by the other parties hereto necessary to compute any
tax imposed (A) as a result of the Transfer of an Ownership Interest in
a Residual Interest Certificate to any Person who is a Disqualified
Organization, including the information described in Treasury
regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to
the "excess inclusions" of such Residual Interest Certificate and (B)
as a result of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest
in a Residual Interest Certificate having as among its record holders
at any time any Person which is a Disqualified Organization, and each
of the other parties hereto shall furnish to the REMIC Administrator
all information in its possession necessary for the REMIC Administrator
to discharge such obligation. The Person holding such Ownership
Interest shall be responsible for the reasonable compensation of the
REMIC Administrator for providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to
this clause (iv) may be modified, added to or eliminated, provided that
there shall have been delivered to the Trustee and the REMIC
Administrator the following:
(A) written confirmation from each Rating Agency to
the effect that the modification of, addition to or
elimination of such provisions will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates;
and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee and the REMIC Administrator,
obtained at the expense of the party seeking such modification
of, addition to or elimination of such provisions (but in no
event at the expense of the Trustee, the REMIC Administrator
or the Trust), to the effect that doing so will not (1) cause
any REMIC Pool to cease to qualify as a REMIC or be subject to
an entity-level tax caused by the Transfer of any Residual
Interest Certificate to a Person which is not a Permitted
Transferee or (2) cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Residual Interest Certificate to a Person that
is not a Permitted Transferee.
-150-
<PAGE>
(e) The Trust has not been registered as an investment company
under the Investment Company Act. Accordingly, no transfer of any Class B-3,
Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class C, Class D-1 or
Class D-2 Certificate shall be made to any Person other than an Institutional
Accredited Investor or a Qualified Institutional Buyer, and no transfer of any
Residual Interest Certificate shall be made to any Person other than a Qualified
Institutional Buyer. If a transfer of any such Certificate is to be made, then
the Trustee shall require, in order to assure compliance with the foregoing,
that the prospective transferee of such Certificate (or the transferor on its
behalf) certify in writing that the prospective transferee is a Qualified
Institutional Buyer or, alternatively, but solely in the case of a Class B-3,
Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class C, Class D-1 or
Class D-2 Certificate, an Institutional Accredited Investor.
(f) If a Person is acquiring any Non-Registered Certificate,
Subordinated Certificate or Residual Interest Certificate as a fiduciary or
agent for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the applicable foregoing acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
as set forth in Subsections (b), (c), (d) and/or (e), as appropriate, of this
Section 5.02.
(g) Subject to the preceding provisions of this Section 5.02,
upon surrender for registration of transfer of any Certificate at the offices of
the Certificate Registrar maintained for such purpose, the Trustee shall execute
and the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized
denominations of the same Class evidencing a like aggregate Percentage Interest.
(h) At the option of any Holder, its Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
evidencing a like aggregate Percentage Interest, upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute and the Certificate Registrar shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(i) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(j) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
(k) All Certificates surrendered for transfer and exchange
shall be physically canceled by the Certificate Registrar, and the Certificate
Registrar shall dispose of such canceled Certificates in accordance with its
standard procedures.
-151-
<PAGE>
(l) The Certificate Registrar or the Trustee shall provide to
each of the other parties hereto, upon reasonable written request and at the
expense of the requesting party, an updated copy of the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) The Class S, Class A, Class B-1 and Class B-2 Certificates
shall, in the case of each Class thereof, initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and, except
as provided in Section 5.03(c), transfer of such Certificates may not be
registered by the Certificate Registrar unless such transfer is to a successor
Depository that agrees to hold such Certificates for the respective Certificate
Owners with Ownership Interests therein. Such Certificate Owners shall hold and,
subject to Section 5.02(c), transfer their respective Ownership Interests in and
to such Certificates through the book-entry facilities of the Depository and,
except as provided in Section 5.03(c) below, shall not be entitled to fully
registered, physical Certificates ("Definitive Certificates") in respect of such
Ownership Interests. All transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the procedures established by the Depository Participant or brokerage firm
representing each such Certificate Owner. Each Depository Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
(b) The Depositor, the Master Servicer, the Special Servicer,
the REMIC Administrator, the Trustee, any Fiscal Agent and the Certificate
Registrar may for all purposes, including the making of payments due on the
Book-Entry Certificates, deal with the Depository as the authorized
representative of the Certificate Owners with respect to such Certificates for
the purposes of exercising the rights of Certificateholders hereunder. The
rights of Certificate Owners with respect to the Book-Entry Certificates shall
be limited to those established by law and agreements between such Certificate
Owners and the Depository Participants and brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depository as Holder of the Book-Entry Certificates with respect to any
particular matter shall not be deemed inconsistent if they are made with respect
to different Certificate Owners. The Trustee may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the
Certificate Registrar in writing that the Depository is no longer willing or
able to discharge properly its responsibilities with respect to any Class of
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to any Class of Book-Entry
Certificates (or any portion of any Class thereof), the Certificate Registrar
shall notify all affected Certificate Owners, through the Depository, of the
occurrence of any such event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of any Class of Book-Entry Certificates (or any portion of
any Class thereof) by the Depository, accompanied by registration instructions
from the Depository for registration of transfer, the Trustee shall execute, and
the Certificate Registrar shall authenticate and deliver, the Definitive
Certificates in respect of such Class (or portion thereof) to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such
-152-
<PAGE>
instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Book-Entry Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be reasonably required by them to save each of them harmless,
then, in the absence of actual notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the reasonable
fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any replacement Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the applicable
REMIC Pool, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee, any Fiscal Agent, the Certificate Registrar and any agent of any of
them may treat the person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, and none of the Depositor,
the Master Servicer, the Special Servicer, the REMIC Administrator, the Trustee,
any Fiscal Agent, the Certificate Registrar or any agent of any of them shall be
affected by notice to the contrary.
SECTION 5.06. Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the transfer requirements of Section 5.02(c).
(b) To the extent that under the terms of this Agreement, it
is necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person which shall
be substantially in the form of paragraph 1 of Exhibit L-1 hereto (or such other
form as shall be reasonably acceptable to the Trustee) and shall specify the
Class and Certificate Principal Balance or Certificate Notional Amount, as the
case may be, of the Book-Entry Certificate beneficially owned; provided,
however, that the Trustee shall not knowingly recognize such Person as a
Certificate Owner if such Person, to the knowledge of a Responsible Officer of
the Trustee, acquired its Ownership Interest in a Book-Entry Certificate in
violation of Section 5.02(c), or if such Person's certification that it is a
Certificate Owner is in direct conflict with information obtained by the Trustee
from the Depository,
-153-
<PAGE>
Depository Participants and/or indirect participating brokerage firms for which
Depository Participants act as agents, with respect to the identity of a
Certificate Owner. The Trustee shall exercise its reasonable discretion in
making any determination under this Section 5.06(b) and shall afford any Person
providing information with respect to its beneficial ownership of any Book-Entry
Certificate an opportunity to resolve any discrepancies between the information
provided and any other information available to the Trustee.
-154-
<PAGE>
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01. Liability of the Depositor, the Master Servicer,
the Special Servicer and the REMIC
Administrator.
The Depositor, the Master Servicer, the Special Servicer and
the REMIC Administrator shall be liable in accordance herewith only to the
extent of the respective obligations specifically imposed upon and undertaken by
the Depositor, the Master Servicer, the Special Servicer and the REMIC
Administrator herein.
SECTION 6.02. Merger, Consolidation or Conversion of the
Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator.
Subject to the following paragraph, each of the Depositor, the
Master Servicer, the Special Servicer and the REMIC Administrator shall each
keep in full effect its existence, rights and franchises as a corporation, bank,
trust company, partnership, limited liability company, association or other
legal entity under the laws of the jurisdiction wherein it was organized, and
each shall obtain and preserve its qualification to do business as a foreign
entity in each jurisdiction in which such qualification is or shall be necessary
to protect the validity and enforceability of this Agreement, the Certificates
or any of the Mortgage Loans and to perform its respective duties under this
Agreement.
Each of the Depositor, the Master Servicer, the Special
Servicer and the REMIC Administrator may be merged or consolidated with or into
any Person, or transfer all or substantially all of its assets to any Person, in
which case, any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
shall be a party, or any Person succeeding to the business of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator, shall be the
successor of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that no
successor or surviving Person shall succeed to the rights of the Master
Servicer, the Special Servicer or REMIC Administrator unless such succession
will not result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by each Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the
Master Servicer, the Special Servicer and the
REMIC Administrator.
None of the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator shall be under any liability to the Trust,
the Trustee or the Certificateholders for any action taken or not taken in good
faith pursuant to this Agreement or for errors in judgment; provided, however,
that this provision shall not protect the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator against any liability to the Trust,
the Trustee or the Certificateholders for the breach of a representation or
warranty made by such party herein, or against any expense or liability
specifically required to be borne by
-155-
<PAGE>
such party without right of reimbursement pursuant to the terms hereof, or
against any liability which would otherwise be imposed by reason of misfeasance,
bad faith or negligence in the performance of, or reckless disregard of, such
party's obligations or duties hereunder. The Depositor, the Master Servicer, the
Special Servicer, the REMIC Administrator and any director, member, manager,
officer, employee or agent of any such party may rely in good faith on any
document of any kind which, prima facie, is properly executed and submitted by
any Person respecting any matters arising hereunder. The Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and any director,
member, manager, officer, employee or agent of any such party shall be
indemnified and held harmless by the Trust out of the Collection Account against
any loss, liability, cost or expense (including reasonable legal expenses)
incurred in connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability, cost or expense: (i) specifically
required to be borne thereby pursuant to the terms hereof or otherwise
incidental to the performance of obligations and duties hereunder, including, in
the case of the Master Servicer or Special Servicer, the prosecution of an
enforcement action in respect of any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement); or (ii) incurred in connection with any legal
action against such party resulting from any breach of a representation or
warranty made herein, any misfeasance, bad faith or negligence in the
performance of, or reckless disregard of, obligations or duties hereunder or any
willful or negligent violation of applicable law. None of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, except in
the case of a legal action the costs of which it is specifically required
hereunder to bear, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator may in its discretion undertake any
such action which it may reasonably deem necessary or desirable with respect to
the enforcement and/or protection of the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action, and any liability resulting therefrom, shall
be expenses, costs and liabilities of the Trust, and the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator shall be entitled to
be reimbursed therefor from the Collection Account as provided in Section
3.05(a).
SECTION 6.04. Master Servicer, Special Servicer and REMIC
Administrator Not to Resign.
The REMIC Administrator, the Master Servicer and the Special
Servicer may each resign from the obligations and duties hereby imposed on it,
upon a determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the REMIC
Administrator, the Master Servicer or the Special Servicer, as the case may be,
so causing such a conflict being of a type and nature carried on by the REMIC
Administrator, the Master Servicer or the Special Servicer, as the case may be,
at the date of this Agreement). Any such determination requiring the resignation
of the REMIC Administrator, the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the REMIC
Administrator's, the Master Servicer's or the Special Servicer's (as the case
may be) resignation to be effective immediately, and the Opinion of Counsel
delivered pursuant to the prior sentence so states, no such resignation shall
become effective until the Trustee or other successor shall have assumed the
responsibilities and obligations of the resigning party in accordance with
Section 6.06 or Section 7.02 hereof; provided that, if no successor REMIC
administrator, master servicer or special servicer, as applicable, shall have
been so appointed and have accepted appointment
-156-
<PAGE>
within 90 days after the REMIC Administrator, Master Servicer or Special
Servicer, as the case may be, has given notice of such resignation, the
resigning REMIC Administrator, Master Servicer or Special Servicer, as
applicable, may petition any court of competent jurisdiction for the appointment
of a successor REMIC administrator, master servicer or special servicer, as
applicable.
In addition, the Master Servicer and the Special Servicer
shall each have the right to resign at any other time provided that (i) a
willing successor thereto (including any such successor proposed by the
resigning party) acceptable to the Depositor has been found, (ii) each of the
Rating Agencies confirms in writing that the successor's appointment will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates, (iii) the resigning party pays all costs and expenses in
connection with such transfer, and (iv) the successor accepts appointment prior
to the effectiveness of such resignation.
Neither the Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated above in this Section 6.04.
Consistent with the foregoing, none of the Master Servicer, the Special Servicer
or the REMIC Administrator shall (except in connection with any resignation
thereby permitted pursuant to the prior paragraph or as otherwise expressly
provided herein, including the provisions of Section 3.22 and/or Section 6.02)
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person or delegate to, subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
it hereunder. If, pursuant to any provision hereof, the duties of the Master
Servicer, the Special Servicer or the REMIC Administrator are transferred to a
successor thereto, the entire amount of compensation payable to the Master
Servicer, the Special Servicer or the REMIC Administrator, as the case may be,
that accrues pursuant hereto from and after the date of such transfer shall be
payable to such successor.
Notwithstanding the foregoing, if the same Person is acting as
both REMIC Administrator and Trustee, and such Person resigns as Trustee
pursuant to Section 8.07, then such Person shall be deemed to have also resigned
as the REMIC Administrator, and the successor Trustee shall also act as
successor REMIC Administrator or shall appoint a successor REMIC Administrator.
SECTION 6.05. Rights of the Depositor and the Trustee in
Respect of the Master Servicer, the Special
Servicer and the REMIC Administrator.
The Master Servicer, the Special Servicer and the REMIC
Administrator shall each afford the Depositor, the Trustee, the Controlling
Class Representative and each Rating Agency, upon reasonable notice, during
normal business hours access to all records maintained by it in respect of its
rights and obligations hereunder and access to such of its officers as are
responsible for such obligations. Upon reasonable request, the Master Servicer,
the Special Servicer and the REMIC Administrator shall each furnish the
Depositor, the Trustee and each Rating Agency with its most recent financial
statements and such other information as it possesses, and which it is not
prohibited by applicable law or contract from disclosing, regarding its
business, affairs, property and condition, financial or otherwise; provided that
none of the Depositor or the Trustee may disclose the contents of such financial
statements or other information to non-affiliated third parties (other than
accountants, attorneys, financial advisors and other representatives retained to
help it evaluate such financial statements or other information), unless it is
required to do so under applicable securities laws or is otherwise compelled to
do so as a matter of law. The Master Servicer, the Special Servicer and the
REMIC Administrator may each affix to any such information described in this
Section 6.05 provided by it any disclaimer it deems appropriate in its
reasonable discretion. The Depositor
-157-
<PAGE>
may, but is not obligated to, enforce the obligations of the Master Servicer,
the Special Servicer and the REMIC Administrator hereunder and may, but is not
obligated to, perform, or cause a designee to perform, any defaulted obligation
of the Master Servicer, the Special Servicer or the REMIC Administrator
hereunder or exercise the rights of the Master Servicer, the Special Servicer or
the REMIC Administrator hereunder; provided, however, that none of the Master
Servicer, the Special Servicer or the REMIC Administrator shall be relieved of
any of its obligations hereunder by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Master Servicer, the Special Servicer or
the REMIC Administrator and is not obligated to supervise the performance of the
Master Servicer, the Special Servicer or the REMIC Administrator under this
Agreement or otherwise.
SECTION 6.06. Designation of Special Servicer by the
Controlling Class.
The Holder or Holders of the Certificates representing more
than 50% of the Class Principal Balance of the Controlling Class may at any time
and from time to time designate a Person to replace any existing Special
Servicer or any Special Servicer that has resigned or otherwise ceased to serve
as Special Servicer. Such Holder or Holders shall so designate a Person to so
serve as successor Special Servicer by the delivery to the Trustee, the Master
Servicer and the existing Special Servicer of a written notice stating such
designation. The Trustee shall, promptly after receiving any such notice,
deliver to the Rating Agencies an executed Notice and Acknowledgment in the form
attached hereto as Exhibit I-1. The designated Person shall become the Special
Servicer on the date as of which the Trustee shall have received: (i) written
confirmation from each of the Rating Agencies that the appointment of such
Person will not result in an Adverse Rating Event with respect to any Class of
Rated Certificates; (ii) an Acknowledgment of Proposed Special Servicer in the
form attached hereto as Exhibit I-2, executed by the designated Person; and
(iii) an Opinion of Counsel (which shall not be an expense of the Trustee or the
Trust) substantially to the effect that (A) the designation of such Person to
serve as Special Servicer is in compliance with this Section 6.06, (B) the
designated Person is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (C) the Acknowledgment of
Proposed Special Servicer has been duly authorized, executed and delivered by
the designated Person and (D) upon the execution and delivery of the
Acknowledgment of Proposed Special Servicer, the designated Person shall be
bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions, that this Agreement shall be enforceable against the
designated Person in accordance with its terms. Any existing Special Servicer
shall be deemed to have been terminated simultaneously with such designated
Person's becoming the Special Servicer hereunder; provided that the terminated
Special Servicer shall be entitled to receive, in connection with its
termination, payment out of the Certificate Account of all of its accrued and
unpaid Special Servicing Fees and reimbursement from the successor Special
Servicer of all outstanding Servicing Advances made by the terminated Special
Servicer and all unpaid Advance Interest accrued on such outstanding Servicing
Advances (in which case the successor Special Servicer shall be deemed to have
made such Servicing Advances at the same time that the terminated Special
Servicer had actually made them); and provided, further, that the terminated
Special Servicer shall continue to be obligated to pay and entitled to receive
all other amounts accrued or owing by or to it under this Agreement on or prior
to the effective date of such termination, and it and its directors, managers,
members, officers, employees and agents shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such termination. Such terminated
Special Servicer shall cooperate with the Trustee and the replacement Special
Servicer in effecting the transfer of the terminated Special Servicer's
responsibilities and rights hereunder to its successor, including the transfer
within two (2) Business Days to the replacement Special Servicer for
administration by it of all cash amounts that at the time are or should have
been credited by the Special Servicer to the REO Account or any
-158-
<PAGE>
Servicing Account or should have been delivered to the Master Servicer or that
are thereafter received by or on behalf of it with respect to any Mortgage Loan
or REO Property. If the termination of the Special Servicer was without cause,
the reasonable out-of-pocket costs and expenses of any such transfer shall in no
event be paid out of the Trust Fund, and instead shall be paid by the successor
Special Servicer or the Holders of the Controlling Class that voted to remove
the Special Servicer, as such parties may agree. If the Controlling Class of
Certificates are Book-Entry Certificates, then the rights set forth in this
Section 6.06 with respect to replacing the Special Servicer may be exercised by
the related Certificate Owners holding beneficial ownership of Certificates
representing more than 50% of the Class Principal Balance of the Controlling
Class.
SECTION 6.07. Master Servicer or Special Servicer as Owner of
a Certificate.
If, at any time during which the Master Servicer or the
Special Servicer or an Affiliate of the Master Servicer or the Special Servicer
is the Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner
with respect to) any Certificate, the Master Servicer or the Special Servicer
proposes to take any action (including for this purpose, omitting to take a
particular action) that is not expressly prohibited by the terms hereof and
would not, in the Master Servicer's or the Special Servicer's reasonable, good
faith judgment, violate the Servicing Standard, but that, if taken, might
nonetheless, in the Master Servicer's or the Special Servicer's reasonable, good
faith judgment, be considered by other Persons to violate the Servicing
Standard, then the Master Servicer or the Special Servicer may (but need not)
seek the approval of the Certificateholders to such action by delivering to the
Trustee a written notice that (a) states that it is delivered pursuant to this
Section 6.07, (b) identifies the Percentage Interest in each Class of
Certificates beneficially owned by the Master Servicer or the Special Servicer,
as the case may be, or by an Affiliate thereof and (c) describes in reasonable
detail the action that the Master Servicer or the Special Servicer, as the case
may be, proposes to take. The Trustee, upon receipt of such notice, shall
forward it to the Certificateholders (other than the Master Servicer and its
Affiliates or the Special Servicer and its Affiliates, as appropriate), together
with a request for approval by the Certificateholders of each such proposed
action. If at any time Certificateholders holding greater than 50% of the Voting
Rights of all Certificateholders (calculated without regard to the Certificates
beneficially owned by the Master Servicer or its Affiliates or the Special
Servicer or its Affiliates, as the case may be) shall have consented in writing
to the proposal described in the written notice, and if the Master Servicer or
the Special Servicer, as the case may be, shall act as proposed in the written
notice, such action shall be deemed to comply with the Servicing Standard. The
Trustee shall be entitled to reimbursement from the Master Servicer or the
Special Servicer, as applicable, for the reasonable expenses of the Trustee
incurred pursuant to this paragraph. It is not the intent of the foregoing
provision that the Master Servicer or the Special Servicer be permitted to
invoke the procedure set forth herein with respect to routine servicing matters
arising hereunder, but rather in the case of unusual circumstances.
-159-
<PAGE>
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of
the following events:
(i) any failure by the Master Servicer to deposit into the
Collection Account any amount required to be so deposited under this
Agreement, which failure continues unremedied for one Business Day
following the date on which such deposit was first required to be made;
or
(ii) any failure by the Special Servicer to deposit into the
REO Account or the Collection Account, or to remit to the Master
Servicer for deposit into the Collection Account, any amount required
to be so deposited or remitted under this Agreement, which failure
continues unremedied for one Business Day following the date on which
such deposit or remittance, as the case may be, was first required to
be made; or
(iii) any failure by the Master Servicer to remit to the
Trustee for deposit into the Distribution Account, on any P&I Advance
Date, the full amount of P&I Advances required to be made on such date
or, on any Master Servicer Remittance Date, the full amount of the
Master Servicer Remittance Amount required to be remitted on such date,
which failure continues unremedied until 5:00 p.m. (New York City time)
on such P&I Advance Date or Master Servicer Remittance Date, as the
case may be; provided however, that the failure to make a P&I Advance
one time in any twelve (12) month period which is corrected by 10:00
a.m. (New York City time) on the related Distribution Date shall not
constitute an Event of Default; or
(iv) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it hereunder, which Servicing
Advance remains unmade for a period of three (3) Business Days
following the date on which notice shall have been given to the Master
Servicer by the Trustee as provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely make (or
request the Master Servicer to make) any Servicing Advance required to
be made by it hereunder, which Servicing Advance remains unmade for a
period of three (3) Business Days following the date on which notice
has been given to the Special Servicer by the Trustee as provided in
Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any
other of the covenants or agreements on the part of the Master Servicer
or the Special Servicer, as the case may be, contained in this
Agreement, which failure continues unremedied for a period of thirty
(30) days (or, in the case of payment of insurance premiums, for a
period of fifteen (15) days) after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given
to the Master Servicer or the Special Servicer, as the case may be, by
any other party hereto or to the Master Servicer or the Special
Servicer, as the case may be, (with a copy to each other party hereto)
by the Holders of Certificates entitled to at least 25% of the Voting
Rights; or
-160-
<PAGE>
(vii) any failure on the part of the REMIC Administrator duly
to observe or perform in any material respect any of the covenants or
agreements on the part of the REMIC Administrator contained in this
Agreement which continues unremedied for a period of thirty (30) days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the REMIC Administrator
by any other party hereto, or to the REMIC Administrator (with a copy
to each other party hereto) by the Holders of Certificates entitled to
at least 25% of the Voting Rights; or
(viii) any breach on the part of the Master Servicer or the
Special Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of any
Class of Certificateholders and which continues unremedied for a period
of sixty (60) days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by any other
party hereto or to the Master Servicer or the Special Servicer, as the
case may be, (with a copy to each other party hereto) by the Holders of
Certificates entitled to at least 25% of the Voting Rights; or
(ix) any breach on the part of the REMIC Administrator of any
representation or warranty contained in this Agreement that materially
and adversely affects the interests of any Class of Certificateholders
and which continues unremedied for a period of sixty (60) days after
the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the REMIC Administrator by any other
party hereto or to the REMIC Administrator (with a copy to each other
party hereto) by the Holders of Certificates entitled to at least 25%
of the Voting Rights; or
(x) the Special Servicer shall acquire any ownership interest
(including partnership debt) in any Borrower; or
(xi) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the Master Servicer, the Special Servicer or the REMIC
Administrator and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
(xii) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator,
receiver, liquidator, trustee or similar official in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings of or relating to it or of or relating to all or
substantially all of its property; or
(xiii) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend
payment of its obligations, or take any corporate action in furtherance
of the foregoing; or
-161-
<PAGE>
(xiv) either (A) the Trustee shall have received notice from
either of the Rating Agencies to the effect that, or the Trustee shall
otherwise have actual knowledge (based on a written publication or
notification by such Rating Agency) that, the continuation of the
Master Servicer or the Special Servicer in such capacity would result
in a qualification, downgrade or withdrawal of any rating assigned
thereby to any Class of Certificates or (B) one or more ratings
assigned by either Rating Agency to the Certificates shall have been
qualified as a result of the Master Servicer or Special Servicer, as
the case may be, acting in such capacity; or
(xv) one or more ratings assigned by either Rating Agency to
the Certificates shall have been downgraded or withdrawn as a result of
the Master Servicer or Special Servicer, as the case may be, acting in
such capacity; or
(xvi) the Master Servicer shall fail to be rated at least
"CMS3" (or any equivalent successor rating) by Fitch or shall cease to
be "approved" by Moody's, in either case in connection with acting as a
master servicer for pools of mortgage loans similar to the Mortgage
Pool, and the failure to be so rated or approved shall continue
unremedied for a period of thirty (30) days (or, as confirmed to the
Trustee in writing by each Rating Agency, for such longer period (not
to exceed ninety (90) days) as the Master Servicer may continue in such
capacity without causing an Adverse Rating Event); or
(xvii) the Special Servicer shall fail to be rated at least
"CSS3"(or any equivalent successor rating) by Fitch or shall cease to
be "approved" by Moody's, in either case in connection with acting as a
special servicer for pools of mortgage loans similar to the Mortgage
Pool, and the failure to be so rated or approved shall continue
unremedied for a period of thirty (30) days (or, as confirmed to the
Trustee in writing by each Rating Agency, for such longer period (not
to exceed ninety (90) days) as the Special Servicer may continue in
such capacity without causing an Adverse Rating Event).
When a single entity acts as Master Servicer, Special Servicer and REMIC
Administrator, or in any two of the foregoing capacities, an Event of Default
(other than an event described in clauses (xiii) - (xvi) above) in one capacity
shall constitute an Event of Default in each such capacity.
(b) If any Event of Default with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") shall occur and be continuing, then, and in
each and every such case, so long as the Event of Default shall not have been
remedied, the Depositor and Trustee each may, and at the written direction of
the Holders of Certificates entitled to not less than 25% of the Voting Rights
or if the relevant Event of Default is one described in any of clauses (iii) and
(xi) through (xvii) of Section 7.01(a), the Trustee shall (subject to applicable
bankruptcy or insolvency law in the case of clauses (xi) through (xiii) of
Section 7.01(a)), terminate, by notice in writing to the Defaulting Party (with
a copy of such notice to each other party hereto), all of the rights and
obligations (accruing from and after such notice) of the Defaulting Party under
this Agreement and in and to the Trust Fund (other than as a Holder of any
Certificate). From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the
-162-
<PAGE>
transfer and endorsement or assignment of the Mortgage Loans and related
documents, or otherwise. Each of the Master Servicer and the Special Servicer
agrees that, if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than ten (10) Business Days subsequent to
its receipt of the notice of termination) provide the Trustee with all documents
and records requested thereby to enable the Trustee to assume the Master
Servicer's or Special Servicer's, as the case may be, functions hereunder, and
shall otherwise cooperate with the Trustee in effecting the termination of the
Master Servicer's or Special Servicer's, as the case may be, responsibilities
and rights hereunder, including the transfer within two (2) Business Days to the
Trustee for administration by it of all cash amounts that at the time are or
should have been credited by the Master Servicer to the Collection Account, the
Distribution Account or any Servicing Account or Reserve Account held by it (if
it is the Defaulting Party) or by the Special Servicer to the REO Account, the
Collection Account or any Servicing Account or Reserve Account held by it (if it
is the Defaulting Party) or that are thereafter received by or on behalf of it
with respect to any Mortgage Loan or REO Property (provided, however, that the
Master Servicer and the Special Servicer each shall, if terminated pursuant to
this Section 7.01(b), continue to be obligated to pay and entitled to receive
all amounts accrued or owing by or to it under this Agreement on or prior to the
date of such termination, whether in respect of Advances or otherwise, and it
and its directors, officers, employees and agents shall continue to be entitled
to the benefits of Section 6.03 notwithstanding any such termination). Any costs
or expenses (including those of any other party hereto) incurred in connection
with any actions to be taken by the Master Servicer or Special Servicer pursuant
to this paragraph shall be borne by the Master Servicer or Special Servicer, as
the case may be (and, in the case of the Trustee's costs and expenses, if not
paid within a reasonable time, shall be borne by the Trust out of the Collection
Account).
(c) In the event the initial Master Servicer is terminated
solely due to an Event of Default under Section 7.01(a)(xiv) or Section
7.01(a)(xvi), and if the terminated initial Master Servicer delivers to the
Trustee proposed bid materials within five (5) Business Days after such
termination, the Trustee shall, within the next five (5) Business Days, using
such bid materials, solicit good faith bids for the rights to master service the
Mortgage Loans under this Agreement from three (3) Qualified Bidders (as defined
below) or, if three (3) Qualified Bidders cannot be located, then from as many
Persons as the Trustee can determine are Qualified Bidders. The Trustee shall
have no obligation to review and shall have no liability or responsibility for
the information in the bid materials, and shall be entitled to include a
disclaimer to such effect with such bid materials. The bid proposal shall
require any Successful Bidder (as defined below), as a condition of such bid, to
enter into this Agreement as successor Master Servicer, and shall agree to be
bound by the terms hereof, within thirty (30) days after the termination of the
initial Master Servicer. The Trustee shall solicit bids (i) on the basis of such
successor Master Servicer retaining all Sub-Servicers to continue the primary
servicing of the Mortgage Loans pursuant to the terms of the respective
Sub-Servicing Agreements and entering into a Sub-Servicing Agreement with the
terminated Master Servicer to service each of the Mortgage Loans not subject to
a Sub-Servicing Agreement at a servicing fee rate of 0.028% per annum per
Mortgage Loan serviced (each, a "Servicing Retained Bid") and (ii) on the basis
of terminating each Sub-Servicer and Sub-Servicing Agreement (other than a
Designated Sub-Servicer and its Sub-Servicing Agreement) and having no
obligation to enter into a Sub-Servicing Agreement with the terminated Master
Servicer (each, a "Servicing Released Bid"). The Trustee shall select the
Qualified Bidder with the highest cash Servicing Retained Bid (or, if none, the
highest cash Servicing Released Bid) (the "Successful Bidder") to act as
successor Master Servicer hereunder. The Trustee shall direct the Successful
Bidder to enter into this Agreement as successor Master Servicer pursuant to the
terms hereof (and, if the successful bid was a Servicing Retained Bid, to enter
into a Sub-Servicing Agreement with the terminated Master Servicer as
contemplated above), no later than thirty (30) days after the termination of the
initial Master Servicer.
-163-
<PAGE>
Upon the assignment and acceptance of the master servicing
rights hereunder to and by the Successful Bidder, including the transfer of the
servicing of the Mortgage Loans, the Trustee shall remit or cause to be remitted
(i) if the successful bid was a Servicing Retained Bid, to the terminated
initial Master Servicer the amount of such cash bid received from the Successful
Bidder (net of expenses in connection with obtaining such bid, including,
without limitation, reasonable attorneys' fees, and out-of-pocket expenses
incurred in connection with transferring the servicing of the Mortgage Loans)
and (ii) if the successful bid was a Servicing Released Bid, to the terminated
initial Master Servicer and each terminated Sub-Servicer its respective Bid
Allocation.
If the Successful Bidder has not entered into this Agreement
as successor Master Servicer within thirty (30) days after the termination of
the initial Master Servicer or no Successful Bidder was identified within such
thirty (30) day period, the terminated initial Master Servicer shall reimburse
the Trustee for all out-of-pocket expenses incurred by the Trustee in connection
with such bid process, and the Trustee shall have no further obligations under
this Section 7.01(c) and may select a successor Master Servicer of its choice
and pursuant to the terms hereof.
A "Qualified Bidder" will be any prospective Master Servicer
candidate reasonably acceptable to the Depositor, which candidate would be
eligible to act as Master Servicer hereunder without causing an Adverse Rating
Event.
(d) If any Event of Default with respect to the REMIC
Administrator shall occur and be continuing, then, and in each and every such
case, so long as the Event of Default shall not have been remedied, the
Depositor or the Trustee (or, if the Trustee is also the REMIC Administrator,
the Master Servicer) may, and at the written direction of the Holders of
Certificates entitled to not less than 25% of the Voting Rights, the Trustee
(or, if the Trustee is also the REMIC Administrator, the Master Servicer) shall,
terminate, by notice in writing to the REMIC Administrator (with a copy to each
of the other parties hereto), all of the rights and obligations of the REMIC
Administrator under this Agreement. From and after the receipt by the REMIC
Administrator of such written notice (or, if the Trustee is also the REMIC
Administrator, from and after such time as another successor appointed as
contemplated by Section 7.02 accepts such appointment), all authority and power
of the REMIC Administrator under this Agreement shall pass to and be vested in
the Trustee (or such other successor) pursuant to and under this Section, and,
without limitation, the Trustee (or such other successor) is hereby authorized
and empowered to execute and deliver, on behalf of and at the expense of the
REMIC Administrator, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination. The REMIC
Administrator agrees promptly (and in any event no later than ten (10) Business
Days subsequent to its receipt of the notice of the termination) to provide the
Trustee (or, if the Trustee is also the REMIC Administrator, such other
successor appointed as contemplated by Section 7.02) with all documents and
records requested thereby to enable the Trustee (or such other successor) to
assume the REMIC Administrator's functions hereunder, and to cooperate with the
Trustee (or such other successor) in effecting the termination of the REMIC
Administrator's responsibilities and rights hereunder (provided, however, that
the REMIC Administrator shall continue to be obligated to pay and entitled to
receive all amounts accrued or owing by or to it under this Agreement on or
prior to the date of such termination, and it and its directors, managers,
members, officers, employees and agents shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such termination). Any costs or
expenses (including those of any other party hereto) incurred in connection with
-164-
<PAGE>
any actions to be taken by the REMIC Administrator pursuant to this paragraph
shall be borne by the REMIC Administrator.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special
Servicer or the REMIC Administrator resigns pursuant to the first paragraph of
Section 6.04 or receives a notice of termination pursuant to Section 7.01, the
Trustee shall be the successor in all respects to the Master Servicer, the
Special Servicer or (unless it had also been acting as such) the REMIC
Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, if the Master Servicer is the resigning or terminated party, the
Master Servicer's obligation to make P&I Advances; provided, however, that any
failure to perform such duties or responsibilities caused by the Master
Servicer's, the Special Servicer's or the REMIC Administrator's, as the case may
be, failure to cooperate or to provide information or monies as required by
Section 7.01 shall not be considered a default by the Trustee hereunder; and
provided, further, that, in the case of a resigning or terminated Special
Servicer, the Trustee shall cease to act as successor if an alternative
successor is appointed pursuant to Section 6.06; and, provided, further, that in
the case of a terminated Master Servicer, the Trustee shall cease to act as
successor if an alternative successor is appointed pursuant to Section 7.01(c).
Neither the Trustee nor any other successor shall be liable for any of the
representations and warranties of the resigning or terminated party or for any
losses incurred by the resigning or terminated party pursuant to Section 3.06
hereunder nor shall the Trustee nor any other successor be required to purchase
any Mortgage Loan hereunder. As compensation therefor, the Trustee shall be
entitled to all fees and other compensation which the resigning or terminated
party would have been entitled to for future services rendered if the resigning
or terminated party had continued to act hereunder. Notwithstanding the above,
if it is unwilling to so act, the Trustee may (and, if it is unable to so act,
or if the Master Servicer or the Special Servicer is the resigning or terminated
party and the Trustee is not approved as an acceptable master servicer or
special servicer, as the case may be, by each Rating Agency, or if the REMIC
Administrator is the resigning or terminated party and the Trustee had been
acting in such capacity, or if the Holders of Certificates entitled to a
majority of all the Voting Rights so request in writing, the Trustee shall,
subject to Section 6.06 or Section 7.01(c), as applicable, promptly appoint, or
petition a court of competent jurisdiction to appoint, any established and
qualified institution as the successor to the Master Servicer, the Special
Servicer or the REMIC Administrator, as the case may be, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, hereunder; provided, however, that such appointment does not result
in an Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by each Rating Agency). No appointment of a
successor to the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder shall be effective until the assumption by such
successor of all its responsibilities, duties and liabilities hereunder, and
pending such appointment and assumption, the Trustee shall act in such capacity
as hereinabove provided. In connection with any such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor
out of payments on the Mortgage Loans or otherwise as it and such successor
shall agree; provided, however, that no such compensation shall be in excess of
that permitted the resigning or terminated party hereunder. The Depositor, the
Trustee, such successor and each other party hereto shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
-165-
<PAGE>
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04, any termination of
the Master Servicer, the Special Servicer or the REMIC Administrator pursuant to
Section 7.01, any appointment of a successor to the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04 or 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.06, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) sixty (60) days after the
occurrence of any event which constitutes or, with notice or lapse of time or
both, would constitute an Event of Default and (ii) five (5) days after a
Responsible Officer of the Trustee has actual knowledge of the occurrence of
such an event, the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of
the Voting Rights allocated to each Class of Certificates affected by any Event
of Default hereunder may waive such Event of Default; provided, however, that an
Event of Default under clause (i), clause (ii), clause (iii), clause (xiv)
clause (xv), clause (xvi) or clause (xvii) of Section 7.01(a) may be waived only
by all of the Certificateholders of the affected Classes. Upon any such waiver
of an Event of Default, such Event of Default shall cease to exist and shall be
deemed to have been remedied for every purpose hereunder. No such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent thereon except to the extent expressly so waived. Notwithstanding any
other provisions of this Agreement, for purposes of waiving any Event of Default
pursuant to this Section 7.04, Certificates registered in the name of the
Depositor or any Affiliate of the Depositor shall be entitled to the same Voting
Rights with respect to the matters described above as they would if registered
in the name of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of
Default.
During the continuance of any Event of Default, so long as
such Event of Default shall not have been remedied, the Trustee, in addition to
the rights specified in Section 7.01, shall have the right (exercisable subject
to Section 8.01(a)), in its own name and as trustee of an express trust, to take
all actions now or hereafter existing at law, in equity or by statute to enforce
its rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
-166-
<PAGE>
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiver of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Default occurs and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs. Any permissive right of the Trustee contained in
this Agreement shall not be construed as a duty.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), the Trustee shall examine
them to determine whether they conform to the requirements of this Agreement. If
any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer or the Special Servicer and accepted by the
Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing or waiver of all Events of Default which may have occurred,
the duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement.
(ii) The Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% (or, as to any particular matter, any higher
percentage as may be specifically provided for hereunder) of the Voting
Rights relating to the time, method and place of conducting
-167-
<PAGE>
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Agreement.
(iv) The Trustee shall not be required to take action with
respect to, or be deemed to have notice or knowledge of, any default or
Event of Default (except an Event of Default under Section
7.01(a)(xiii) or the Master Servicer's failure to deliver any monies,
including P&I Advances, or to provide any report, certificate or
statement, to the Trustee when required pursuant to this Agreement)
unless a Responsible Officer of the Trustee shall have received written
notice or otherwise have actual knowledge thereof. Otherwise, the
Trustee may conclusively assume that there is no such default or Event
of Default.
(v) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 8.01, the Trustee shall
have no duty, except as expressly provided in Section 2.01(c) or
Section 2.01(e) or in its capacity as successor Master Servicer or
successor Special Servicer, (A) to cause any recording, filing, or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security
interest, or to cause the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing of any
thereof, (B) to cause the maintenance of any insurance, and (C) to
confirm or verify the contents of any reports or certificates of the
Master Servicer or Special Servicer delivered to the Trustee pursuant
to this Agreement reasonably believed by the Trustee to be genuine and
without error and to have been signed or presented by the proper party
or parties.
(vi) For as long as the Person that serves as Trustee
hereunder also serves as Custodian, Certificate Registrar and/or REMIC
Administrator, the protections, immunities and indemnities afforded to
the Trustee hereunder shall also be afforded to such Person in its
capacity as Custodian, Certificate Registrar and/or REMIC
Administrator, as the case may be.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to
be genuine and without error and to have been signed or presented by
the proper party or parties;
(ii) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, unless (in the
Trustee's reasonable opinion) such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities
-168-
<PAGE>
which may be incurred therein or thereby; the Trustee shall not be
required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; provided, however, that nothing contained herein shall
relieve the Trustee of the obligation, upon the occurrence of an Event
of Default which has not been waived or cured, to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs;
(iv) neither the Trustee nor any Fiscal Agent appointed
thereby shall be personally liable for any action reasonably taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) prior to the occurrence of an Event of Default and after
the waiver or curing of all Events of Default which may have occurred,
the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so
by Holders of Certificates entitled to at least 25% of the Voting
Rights; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a condition
to taking any such action;
(vi) except as contemplated by Section 8.06 and/or Section
8.14, the Trustee shall not be required to give any bond or surety in
respect of the execution of the trusts created hereby or the powers
granted hereunder;
(vii) the Trustee may execute any of the trusts or powers
vested in it by this Agreement or perform any of its duties hereunder
either directly or by or through agents or attorneys-in-fact, provided
that the use of agents or attorneys-in-fact shall not be deemed to
relieve the Trustee of any of its duties and obligations hereunder
(except as expressly set forth herein);
(viii) neither the Trustee nor any Fiscal Agent appointed
thereby shall be responsible for any act or omission of the Master
Servicer, the Special Servicer or the REMIC Administrator (unless the
Trustee is acting as Master Servicer, Special Servicer or REMIC
Administrator, as the case may be) or of the Depositor.
(ix) neither the Trustee nor the Certificate Registrar shall
have any obligation or duty to monitor, determine or inquire as to
compliance with any restriction on transfer imposed under Article V
under this Agreement or under applicable law with respect to any
transfer of any Certificate or any interest therein, other than to
require delivery of the certification(s) and/or Opinions of Counsel
described in said Article applicable with respect to changes in
registration or record ownership of Certificates in the Certificate
Register and to examine the same to determine substantial compliance
with the express requirements of this Agreement; and the Trustee and
Certificate Registrar shall have
-169-
<PAGE>
no liability for transfers, including transfers made through the
book-entry facilities of the Depository or between or among Depository
Participants or beneficial owners of the Certificates, made in
violation of applicable restrictions except for its failure to perform
its express duties in connection with changes in registration or record
ownership in the Certificate Register.
SECTION 8.03. Trustee and Fiscal Agent not Liable for Validity
or Sufficiency of Certificates or Mortgage
Loans.
The recitals contained herein and in the Certificates (other
than the statements attributed to, and the representations and warranties of,
the Trustee and/or any Fiscal Agent in Article II, and the signature of the
Trustee set forth on each outstanding Certificate) shall not be taken as the
statements of the Trustee or any Fiscal Agent, and neither the Trustee nor any
Fiscal Agent assumes any responsibility for their correctness. Neither the
Trustee nor any Fiscal Agent makes any representation as to the validity or
sufficiency of this Agreement (except as regards the enforceability of this
Agreement against it) or of any Certificate (other than as to the signature of
the Trustee set forth thereon) or of any Mortgage Loan or related document.
Neither the Trustee nor any Fiscal Agent shall be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the assignment of the Mortgage Loans to the
Trust, or any funds deposited in or withdrawn from the Collection Account or any
other account by or on behalf of the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator (in each case, unless the Trustee is acting
in such capacity). Neither the Trustee nor any Fiscal Agent shall be responsible
for the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator (in each case,
unless the Trustee is acting in such capacity), and accepted by the Trustee or
such Fiscal Agent, as the case may be, in good faith, pursuant to this
Agreement. Neither the Trustee nor any Fiscal Agent shall be responsible for the
legality or validity of this Agreement (other than insofar as it relates to the
obligations of the Trustee or such Fiscal Agent, as the case may be, hereunder)
or the validity, priority, perfection or sufficiency of any security, lien or
security interest granted to it hereunder or the filing of any financing
statements or continuation statements, except to the extent set forth in Section
2.01(c) and Section 2.01(e) or to the extent the Trustee is acting as Master
Servicer or Special Servicer. The Trustee shall not be required to record this
Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee (in its individual or any other capacity), any
Fiscal Agent or any Affiliate of either of them may become the owner or pledgee
of Certificates with (except as otherwise provided in the definition of
"Certificateholder") the same rights it would have if it were not the Trustee,
such Fiscal Agent or an Affiliate of either of them, as the case may be.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
and by Trustee, REMIC Administrator and Fiscal
Agent.
(a) On each Distribution Date, the Trustee shall withdraw from
the Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and pay to itself all earned but unpaid
Trustee's Fees in respect of the Mortgage Loans and any REO Mortgage Loans
through the end of the most recently ended calendar month, as compensation for
all services rendered by the Trustee in the
-170-
<PAGE>
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties of the Trustee hereunder. As to each Mortgage Loan
and REO Mortgage Loan, the Trustee's Fee shall accrue during each calendar
month, commencing with June 1999, at the Trustee's Fee Rate on a principal
amount equal to the Stated Principal Balance of such Mortgage Loan or REO
Mortgage Loan immediately following the Distribution Date in such calendar month
(or, in the case of June 1999, on a principal amount equal to the Cut-off Date
Balance of the particular Mortgage Loan), whether or not interest is actually
collected on each Mortgage Loan and REO Mortgage Loan. With respect to each
Mortgage Loan and REO Mortgage Loan, the Trustee's Fee shall accrue from time to
time on a 30/360 Basis. The Trustee's Fees (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
shall constitute the Trustee's sole compensation for such services to be
rendered by it.
(b) The Trustee and any affiliate, director, officer, employee
or agent of the Trustee shall be entitled to be indemnified and held harmless
out of Trust Fund for and against any loss, liability, claim or expense
(including costs and expenses of litigation, and of investigation, counsel fees,
damages, judgments and amounts paid in settlement) arising out of, or incurred
in connection with, this Agreement, the Certificates, the Mortgage Loans (unless
it incurs any such expense or liability in the capacity of successor Master
Servicer or Special Servicer, in which case such expense or liability will be
reimbursable thereto in the same manner as it would be for any other Master
Servicer or Special Servicer, as the case may be) or any act or omission of the
Trustee relating to the exercise and performance of any of the powers and duties
of the Trustee hereunder, if (but only if) such loss, liability, claim or
expense constitutes an "unanticipated expense" within the meaning of Treasury
regulation Section 1.860G-1(b)(3)(ii); provided, however, that neither the
Trustee nor any of the other above specified Persons shall be entitled to
indemnification pursuant to this Section 8.05(b) for (1) allocable overhead,
such as costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
(2) any expense or liability specifically required to be borne thereby pursuant
to the terms hereof or (3) any loss, liability, claim or expense incurred by
reason of any breach on the part of the Trustee of any of its representations,
warranties or covenants contained herein or any willful misfeasance, bad faith
or negligence in the performance of, or reckless disregard of, the Trustee's
obligations and duties hereunder.
(c) Each of the Master Servicer and the Special Servicer shall
indemnify the Trustee, any Fiscal Agent and the REMIC Administrator for and hold
each of them harmless against any loss, liability, claim or expense that is a
result of the Master Servicer's or the Special Servicer's, as the case may be,
negligent acts or omissions in connection with this Agreement, including the
negligent use by the Master Servicer or the Special Servicer, as the case may
be, of any powers of attorney delivered to it by the Trustee pursuant to the
provisions hereof and the Mortgage Loans serviced by the Master Servicer or the
Special Servicer, as the case may be; provided, however, that, if the Trustee
has been reimbursed for such loss, liability, claim or expense pursuant to
Section 8.05(b), any Fiscal Agent has been reimbursed for such loss, liability,
claim or expense pursuant to Section 8.13, or the REMIC Administrator has been
reimbursed for such loss, liability, claim or expense pursuant to Section 6.03,
then the indemnity in favor of such Person provided for in this Section 8.05(c)
with respect to such loss, liability, claim or expense shall be for the benefit
of the Trust.
-171-
<PAGE>
(d) Each of the Trustee, any Fiscal Agent and the REMIC
Administrator shall indemnify the Master Servicer and the Special Servicer for
and hold each of them harmless against any loss, liability, claim or expense
that is a result of the Trustee's, such Fiscal Agent's or the REMIC
Administrator's, as the case may be, negligent acts or omissions in connection
with this Agreement; provided, however, that if the Master Servicer or the
Special Servicer has been reimbursed for such loss, liability, claim or expense
pursuant to Section 6.03, then the indemnity in favor of such Person provided
for in this Section 8.05(d) with respect to such loss, liability, claim or
expense shall be for the benefit of the Trust.
(e) This Section 8.05 shall survive the termination of this
Agreement or the resignation or removal of the Trustee, any Fiscal Agent, the
REMIC Administrator, the Master Servicer and the Special Servicer as regards
rights and obligations prior to such termination, resignation or removal.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation,
bank, trust company or association organized and doing business under the laws
of the United States of America or any State thereof or the District of
Columbia, authorized under such laws to exercise trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authority. If such corporation, bank, trust
company or association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such corporation, bank, trust company or association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. In addition, the Trustee shall at all times meet the
requirements of Section 26(a)(1) of the Investment Company Act. Furthermore, the
Trustee shall at all times maintain a long-term unsecured debt rating of no less
than "Aa3" from Moody's and "AA" from Fitch (or, in the case of either Rating
Agency, such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by such Rating Agency)); provided that the Trustee
shall not cease to be eligible to serve as such based on a failure to satisfy
such rating requirements so long as either: (i) the Trustee maintains a
long-term unsecured debt rating of no less than "Baa2" from Moody's and "BBB"
from Fitch (or, in the case of either Rating Agency, such lower rating as will
not result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee and the Depositor by such
Rating Agency)) and a Fiscal Agent meeting the requirements of Section 8.13 has
been appointed by the Trustee and is then currently serving in such capacity; or
(ii) the Trustee maintains a long-term unsecured debt rating of no less than
"A1" from Moody's and "A+" from Fitch (or, in the case of either Rating Agency,
such lower rating as will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates (as confirmed in writing to the Trustee and the
Depositor by such Rating Agency)) and an Advance Security Arrangement meeting
the requirements of Section 8.14 has been established by the Trustee and is then
currently being maintained. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 8.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.07. The corporation, bank, trust company or association serving as Trustee may
have normal banking and trust relationships with the Depositor, the Mortgage
Loan Sellers, the Master Servicer, the Special Servicer, the REMIC Administrator
and their respective Affiliates; provided, however, that none of (i) the
Depositor, (ii) any Person involved in the organization or operation of the
Depositor or the Trust, (iii) any Mortgage Loan Seller or (iv) any Affiliate of
any of them, may be the Trustee hereunder.
-172-
<PAGE>
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator and all the
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee meeting the eligibility requirements
of Section 8.06 by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee and to the successor trustee. A copy of such
instrument shall be delivered to other parties hereto and to the
Certificateholders by the Depositor. If no successor trustee shall have been so
appointed and have accepted appointment within thirty (30) days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee's continuing to act in such capacity would (as
confirmed in writing to any party hereto by either Rating Agency) result in an
Adverse Rating Event with respect to any Class of Rated Certificates, then the
Depositor may (and, if it fails to do so within ten (10) Business Days, the
Master Servicer shall as soon as practicable) remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. A copy of such
instrument shall be delivered to the other parties hereto and to the
Certificateholders by the Depositor (or the Master Servicer, as the case may
be).
(c) The Holders of Certificates entitled to at least a
majority of the Voting Rights (or, if such removal is in connection with the
Trustee's and any Fiscal Agent's failure to make any required Advance, 25% of
the Voting Rights) may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Depositor, one complete set to the Trustee
so removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the other parties hereto and to the remaining
Certificateholders by the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 8.07
shall not become effective until (i) acceptance of appointment by the successor
trustee as provided in Section 8.08 and (ii) if neither the Trustee nor any
Fiscal Agent appointed by it has a long-term unsecured debt rating of at least
"Aa3" from Moody's and "AA" from Fitch, the Trustee and the Depositor have
received written confirmation from each Rating Agency that has not so assigned
such a rating, to the effect that the appointment of such successor Trustee
shall not result in an Adverse Rating Event with respect to any Class of Rated
Certificates. Notwithstanding anything herein to the contrary, if any Person is
acting as both Trustee and REMIC Administrator, then any resignation or removal
of such Person as the Trustee shall be accompanied by the resignation or removal
of such Person as REMIC Administrator, and the successor trustee shall serve as
successor REMIC administrator as well.
-173-
<PAGE>
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section
8.07 shall execute, acknowledge and deliver to the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to the successor trustee all
Mortgage Files and related documents and statements held by it hereunder (other
than any Mortgage Files at the time held on its behalf by a Custodian, which
Custodian shall become the agent of the successor trustee), and the Depositor,
the Master Servicer, the Special Servicer, the REMIC Administrator and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder.
(b) No successor trustee shall accept appointment as provided
in this Section 8.08 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted
or with which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such entity shall be eligible under
the provisions of Section 8.06, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing the same may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer
-174-
<PAGE>
shall not have joined in such appointment within fifteen (15) days after the
receipt by it of a request to do so, or in case an Event of Default in respect
of the Master Servicer shall have occurred and be continuing, the Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06, and no notice to Holders of Certificates of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or when acting as Master Servicer, Special Servicer or REMIC
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under
this Section 8.10 shall not relieve the Trustee of its duties and
responsibilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer,
appoint at the Trustee's own expense one or more Custodians to hold all or a
portion of the Mortgage Files as agent for the Trustee; provided that if the
Custodian is an Affiliate of the Trustee such consent of the Master Servicer
need not be obtained and the Trustee shall inform the Master Servicer of such
appointment. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File, shall not be the Depositor,
any Mortgage Loan Seller or any Affiliate of the Depositor or any Mortgage Loan
Seller, and shall have in place a fidelity bond and errors and omissions
-175-
<PAGE>
policy, each in such form and amount as is customarily required of custodians
acting on behalf of FHLMC or FNMA. Each Custodian shall be subject to the same
obligations, standard of care, protection and indemnities as would be imposed
on, or would protect, the Trustee hereunder in connection with the retention of
Mortgage Files directly by the Trustee. The appointment of one or more
Custodians shall not relieve the Trustee from any of its obligations hereunder,
and the Trustee shall remain responsible for all acts and omissions of any
Custodian.
SECTION 8.12. Access to Certain Information.
(a) The Trustee shall afford to the Depositor, the
Underwriters, the Master Servicer, the Special Servicer, the Controlling Class
Representative and each Rating Agency and to the OTS, the FDIC and any other
banking or insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to any documentation regarding
the Mortgage Loans or the other assets of the Trust Fund that are in its
possession or within its control. Such access shall be afforded without charge
but only upon reasonable prior written request and during normal business hours
at the offices of the Trustee designated by it.
(b) The Trustee shall maintain at its offices and, upon
reasonable prior written request and during normal business hours, shall make
available for review by the Depositor, the Underwriters, the Mortgage Loan
Sellers, the Rating Agencies, the Controlling Class Representative and, subject
to the succeeding paragraph, any Certificateholder, Certificate Owner or Person
identified to the Trustee as a prospective Transferee of a Certificate or an
interest therein, originals and/or copies of the following items (to the extent
such items were prepared by or delivered to the Trustee): (i) the Prospectus,
the Memorandum and any other disclosure document relating to the Certificates,
in the form most recently provided to the Trustee by the Depositor or by any
Person designated by the Depositor; (ii) this Agreement, each Sub-Servicing
Agreement delivered to the Trustee since the Closing Date and any amendments
hereto or thereto; (iii) all Trustee Reports and other Certificateholder Reports
delivered to Certificateholders pursuant to Section 4.02(a) since the Closing
Date; (iv) all Annual Performance Certifications delivered by the Master
Servicer and the Special Servicer, respectively, to the Trustee since the
Closing Date; (v) all Annual Accountants' Reports caused to be delivered by the
Master Servicer and the Special Servicer, respectively, to the Trustee since the
Closing Date; (vi) the most recent inspection report prepared by the Master
Servicer or the Special Servicer and delivered to the Trustee in respect of each
Mortgaged Property pursuant to Section 3.12(a); (vii) the most recent quarterly
and annual operating statement and rent roll of each related Mortgaged Property
and financial statements of the related Borrower collected by the Master
Servicer or the Special Servicer and delivered to the Trustee pursuant to
Section 3.12(b); (viii) any and all notices and reports delivered to the Trustee
with respect to any Mortgaged Property as to which the environmental testing
contemplated by Section 3.09(c) revealed that neither of the conditions set
forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (ix)
all Unrestricted Servicer Reports and Restricted Servicer Reports delivered to
the Trustee since the Closing Date pursuant to Sections 4.02(b); (x) each of the
Mortgage Files, including any and all modifications, waivers and amendments of
the terms of a Mortgage Loan entered into or consented to by the Master Servicer
or the Special Servicer and delivered to the Trustee pursuant to Section 3.20;
(xi) the most recent Appraisal for each Mortgage Loan and REO Property that has
been delivered to the Trustee (all Appraisals of Mortgaged Properties and/or REO
Properties shall be delivered to the Trustee by the Master Servicer or Special
Servicer, as applicable, promptly following their having been obtained or
formulated); (xii) any Asset Status Reports delivered to the Trustee pursuant to
Section 3.24 since the Closing Date; (xiii) any and all Officer's Certificates
and other evidence delivered to
-176-
<PAGE>
or by the Trustee to support its, the Master Servicer's, the Special Servicer's
or any Fiscal Agent's, as the case may be, determination that any Advance was
(or, if made, would be) a Nonrecoverable Advance; and (xiv) any other
information that may be necessary to satisfy the requirements of subsection
(d)(4)(i) of Rule 144A under the Securities Act. The Trustee shall provide
copies of any and all of the foregoing items upon request of any of the parties
set forth in the previous sentence; however, except in the case of the Rating
Agencies, the Trustee shall be permitted to require payment of a sum sufficient
to cover the reasonable costs and expenses of providing such copies.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 8.12(b), the
Trustee shall require: (a) in the case of Certificate Owners, a written
confirmation executed by the requesting Person substantially in the form of
Exhibit L-1 hereto (or such other form as may be reasonably acceptable to the
Trustee) generally to the effect that such Person is a beneficial holder of
Book-Entry Certificates and, subject to the last sentence of this paragraph,
will keep such information confidential (except that such Certificate Owner may
provide such information to its auditors, legal counsel and regulators and to
any other Person that holds or is contemplating the purchase of any Certificate
or interest therein (provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential)); and (b) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit L-2 hereto (or such other form as
may be reasonably acceptable to the Trustee) generally to the effect that such
Person is a prospective purchaser of a Certificate or an interest therein, is
requesting the information for use in evaluating a possible investment in
Certificates and, subject to the last sentence of this paragraph, will otherwise
keep such information confidential. The Holders of the Certificates, by their
acceptance thereof, will be deemed to have agreed, subject to the last sentence
of this paragraph, to keep such information confidential (except that any Holder
may provide any such information obtained by it to its auditors, legal counsel
and regulators and to any other Person that holds or is contemplating the
purchase of any Certificate or interest therein (provided that such other Person
confirms in writing such ownership interest or prospective ownership interest
and agrees to keep such information confidential)). Notwithstanding the
foregoing, no Certificateholder, Certificate Owner or prospective
Certificateholder or Certificate Owner need keep confidential any information
received from the Trustee pursuant to this Section 8.12(b) that has previously
been filed with the Commission, and the Trustee shall not require either of the
certifications contemplated by the second preceding sentence in connection with
providing any information pursuant to this Section 8.12(b) that has previously
been filed with the Commission.
(c) Neither the Trustee nor the Master Servicer shall be
liable for providing or disseminating information in accordance with the terms
of this Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the
rating requirements of Section 8.06, the Trustee may appoint, at the Trustee's
own expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Moody's and "AA" from Fitch (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee and the Depositor
by such Rating Agency)). Any Person so appointed by the Trustee pursuant to this
Section 8.13(a) shall become the
-177-
<PAGE>
Fiscal Agent on the date as of which the Trustee and the Depositor have
received: (i) if the long-term unsecured debt of the designated Person is not
rated as least "Aa3" from Moody's and "AA" from Fitch, written confirmation from
each Rating Agency that the appointment of such designated Person will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates; (ii) a written agreement whereby the designated Person is
appointed as, and agrees to assume and perform the duties of, Fiscal Agent
hereunder, executed by such designated Person and the Trustee (such agreement,
the "Fiscal Agent Agreement"); and (iii) an Opinion of Counsel (which shall be
paid for by the designated Person or the Trustee) substantially to the effect
that (A) the appointment of the designated Person to serve as Fiscal Agent is in
compliance with this Section 8.13, (B) the designated Person is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (C) the related Fiscal Agent Agreement has been duly authorized,
executed and delivered by the designated Person and (D) upon execution and
delivery of the related Fiscal Agent Agreement, the designated Person shall be
bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions, that this Agreement shall be enforceable against the
designated Person in accordance with its terms. Any Person that acts as Fiscal
Agent shall, for so long as it so acts, be deemed a party to this Agreement for
all purposes hereof. Pursuant to the related Fiscal Agent Agreement, each Fiscal
Agent, if any, shall make representations and warranties with respect to itself
that are comparable to those made by the Trustee pursuant to Section 2.07.
Notwithstanding anything contained in this Agreement to the contrary, any Fiscal
Agent shall be entitled to all limitations on liability, rights of reimbursement
and indemnities to which the Trustee is entitled hereunder (including pursuant
to Sections 8.05(b) and 8.05(c)) as if it were the Trustee.
(b) To the extent that the Trustee is required, pursuant to
the terms of this Agreement, to make any Advance, whether as successor Master
Servicer or otherwise, and has failed to do so in accordance with the terms
hereof, the Fiscal Agent (if any) shall make such Advance when and as required
by the terms of this Agreement on behalf the Trustee as if such Fiscal Agent
were the Trustee hereunder. To the extent that the Fiscal Agent (if any) makes
an Advance pursuant to this Section 8.13 or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to
the contrary, any Fiscal Agent shall be entitled to all limitations on
liability, rights of reimbursement and indemnities to which the Trustee is
entitled hereunder (including pursuant to Sections 8.05(b) and 8.05(c)) as if it
were the Trustee, except that all fees and expenses of any Fiscal Agent (other
than interest owed to such Fiscal Agent in respect of unreimbursed Advances)
incurred by such Fiscal Agent in connection with the transactions contemplated
by this Agreement shall be borne by the Trustee, and neither the Trustee nor
such Fiscal Agent shall be entitled to reimbursement therefor from any of the
Trust, the Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of any Fiscal Agent set forth in this
Section 8.13 or otherwise pursuant to this Agreement shall exist only for so
long as the Trustee that appointed it shall act as Trustee hereunder. Any Fiscal
Agent may resign or be removed by the Trustee only if and when the existence of
such Fiscal Agent is no longer necessary for such Trustee to satisfy the
eligibility requirements of Section 8.06; provided that any Fiscal Agent shall
be deemed to have resigned at such time as the Trustee that appointed it resigns
or is removed as Trustee hereunder (in which case the responsibility for
appointing a successor Fiscal Agent in accordance with this Section 8.13(a)
shall belong to the successor Trustee insofar as such appointment is necessary
for such successor Trustee to satisfy the eligibility requirements of Section
8.06).
-178-
<PAGE>
(e) The Trustee shall promptly notify the other parties hereto
and the Certificateholders in writing of the appointment, resignation or removal
of any Fiscal Agent.
SECTION 8.14 Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may, at is own expense with the
approval of the Depositor, arrange for the pledging of collateral, the
establishment of a reserve fund or the delivery of a letter of credit, surety
bond or other comparable instrument or for any other security or financial
arrangement (any or all of the foregoing, individually and collectively, an
"Advance Security Arrangement") for purposes of supporting its back-up advancing
obligations hereunder; provided that any Advance Security Arrangement shall be
in such form and amount, and shall be maintained in such manner, as (i) would
permit the Trustee to act in such capacity without an Adverse Rating Event in
respect of any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by each Rating Agency) and (ii) would not result in an
Adverse REMIC Event (as evidenced by an Opinion of Counsel addressed and
delivered to the Trustee, the Depositor and the REMIC Administrator). The
Trustee may terminate any Advance Security Arrangement established by it only if
and when (i) the existence of such Advance Security Arrangement is no longer
necessary for the Trustee to satisfy the eligibility requirements of Section
8.06 or (ii) when such Trustee resigns or is removed as Trustee hereunder.
SECTION 8.15. Filings with the Securities and Exchange
Commission.
(a) With respect to the Trust's fiscal year 1999 (and, if as
of the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository), the Trustee shall:
(i) during such fiscal year, in accordance with the Exchange
Act, the rules and regulations promulgated thereunder and applicable
"no-action letters" issued by the Commission, prepare for filing,
execute and properly file with the Commission monthly, with respect to
the Trust, a Current Report on Form 8-K with copies of the Trustee
Reports and the Unrestricted Servicer Reports attached as exhibits;
(ii) during such fiscal year, (A) monitor for and promptly
notify the Depositor of the occurrence or existence of any of the
matters identified in Section 11.09(a) and/or Section 8.15(b) (in each
case to the extent that a Responsible Officer of the Trustee has actual
knowledge thereof), (B) cooperate with the Depositor in obtaining all
necessary information in order to enable the Depositor to prepare a
Current Report on Form 8-K reporting any such matter in accordance with
the Exchange Act, the rules and regulations promulgated thereunder and
applicable "no-action letters" issued by the Commission, and (C)
execute and promptly file with the Commission any such Current Report
on Form 8-K prepared by or on behalf of the Depositor and delivered to
the Trustee; and
(iii) within ninety (90) days following the end of such fiscal
year, prepare, execute and properly file with the Commission, with
respect to the Trust, an Annual Report on Form 10-K which complies in
all material respects with the requirements of the Exchange Act, the
rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission;
-179-
<PAGE>
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable for electronic filing via the EDGAR system and shall not have any
responsibility to convert any such items (other than those generated by it) to
such format and (y) the Depositor shall be responsible for preparing, executing
and filing (via the EDGAR system within fifteen (15) days following the Closing
Date) a Current Report on Form 8-K reporting the establishment of the Trust and
whereby this Agreement is filed as an exhibit. Each of the other parties to this
Agreement shall deliver to the Trustee in the format required (or readily
convertible into the format required) for electronic filing via the EDGAR system
any and all items (including, in the case of the Master Servicer and the Special
Servicer, Unrestricted Servicer Reports) contemplated to be filed with the
Commission pursuant to this Section 8.15(a).
(b) At all times during the Trust's fiscal year 1999 (and, if
as of the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository, at all times during
such other fiscal year), the Trustee shall monitor for and promptly notify the
Depositor of the occurrence or existence of any of the following matters of
which a Responsible Officer of the Trustee has actual knowledge:
(i) any failure of the Trustee to make any monthly
distributions to the Holders of any Class of Certificates, which
failure is not otherwise reflected in the Certificateholder Reports
filed with the Commission or has not otherwise been reported to the
Depositor pursuant to any other Section of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage
Loan or an REO Property, which acquisition or disposition has not
otherwise been reflected in the Certificateholder Reports filed with
the Commission or has not otherwise been reported to the Depositor
pursuant to any other Section of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments,
Mortgage Loans and REO Properties), other than in the normal course of
business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary
routine litigation incidental to the business of the Trust, to which
the Trust (or any party to this Agreement on behalf of the Trust) is a
party or of which any property included in the Trust Fund is subject,
or any threat by a governmental authority to bring any such legal
proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of
debt, marshalling of assets and liabilities, or similar proceedings in
respect of or pertaining to the Trust or any party to this Agreement,
or any actions by or on behalf of the Trust or any party to this
Agreement indicating its bankruptcy, insolvency or inability to pay its
obligations; and
-180-
<PAGE>
(vii) any change in the rating or ratings assigned to any
Class of Certificates not otherwise reflected in the Certificateholder
Reports filed with the Commission;
provided that (x) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited to circumstances where it would be reasonable for the
Trustee to identify such property as an asset of, or as securing an asset of,
the Trust or such threatened proceedings as concerning the Trust and (y) no
Responsible Officer of the Trustee shall be deemed to have actual knowledge of
the matters described in clauses (vi) and (vii) of this Section 8.15(b) unless
such Responsible Officer was notified in writing.
(c) If as of the beginning of any fiscal year for the Trust
(other than fiscal year 1999), the Registered Certificates are held (directly
or, in the case of Registered Certificates held in book-entry form, through the
Depository) by less than 300 Holders and/or Depository Participants having
accounts with the Depository, the Trustee shall, in accordance with the Exchange
Act and the rules and regulations promulgated thereunder, timely file a Form 15
with respect to the Trust.
-181-
<PAGE>
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
All Mortgage Loans.
Subject to Section 9.02, the Trust and the respective
obligations and responsibilities under this Agreement of the parties hereto
(other than the obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of: (i) the purchase by the Master Servicer,
the Special Servicer or the Majority Controlling Class Certificateholder of all
Mortgage Loans and each REO Property remaining in the Trust Fund at a price (the
"Termination Price") equal to (A) the aggregate Purchase Price of all the
Mortgage Loans remaining in the Trust Fund (exclusive of any REO Mortgage
Loan(s)), plus (B) the appraised value of each REO Property, if any, included in
the Trust Fund, such appraisal to be conducted by a Qualified Appraiser selected
by the Master Servicer and approved by the Trustee, minus (C) if the purchaser
is the Master Servicer or the Special Servicer, the aggregate amount of
unreimbursed Advances made by such Person, together with any unpaid Advance
Interest in respect of such unreimbursed Advances and any unpaid servicing
compensation payable to such Person (which items shall be deemed to have been
paid or reimbursed to the Master Servicer or the Special Servicer, as the case
may be, in connection with such purchase); provided, however, that any such
purchase with respect to the Additional Servicing Fee Mortgage Loans shall be
subject to the rights of the applicable Designated Sub-Servicer to continue to
sub-service such Mortgage Loans and the rights of Archon or the applicable
Designated Sub-Servicer to receive the Additional Servicing Fee as described in
the applicable Designated Sub-Servicer Agreement; and (ii) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund; provided, however, that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
ambassador of the United States to the Court of St. James, living on the date
hereof.
The Master Servicer, the Special Servicer or the Majority
Controlling Class Certificateholder, in that order of preference, may at its
option elect to purchase all the Mortgage Loans and each REO Property remaining
in the Trust Fund as contemplated by clause (i) of the preceding paragraph by
giving written notice to the other parties hereto (and, in the case of an
election by the Master Servicer or Special Servicer, to the Holders of the
Controlling Class) no later than sixty (60) days prior to the anticipated date
of purchase; provided, however, that the aggregate Stated Principal Balance of
the Mortgage Pool at the time of such election is less than 1.0% of the Initial
Pool Balance; and provided, further, that within thirty (30) days after written
notice of such election is so given, no Person with a higher right of priority
to make such an election does so. No Prepayment Premiums or Yield Maintenance
Charges will be payable in connection with such a purchase. If the Trust is to
be terminated in connection with the purchase of all the Mortgage Loans and each
REO Property remaining in the Trust Fund by the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder, such Person(s)
shall deliver to the Master Servicer for deposit (or, if the Master Servicer is
the purchaser, it shall deposit) in the Collection Account (after the
Determination Date, and prior to the Master Servicer Remittance Date, relating
to the anticipated Final Distribution Date) an amount in immediately available
funds equal to the Termination Price and shall reimburse all of the parties
hereto (other than itself, if applicable) for all reasonable out-of-pocket costs
and
-182-
<PAGE>
expenses incurred by such parties in connection with such purchase. On the
Master Servicer Remittance Date for the Final Distribution Date, the Master
Servicer shall transfer to the Distribution Account all amounts required to be
transferred thereto on such Master Servicer Remittance Date from the Collection
Account pursuant to the first paragraph of Section 3.04(b), together with any
other amounts on deposit in the Collection Account that would otherwise be held
for future distribution. Upon confirmation that the deposit of the Termination
Price has been made to the Collection Account and the reimbursement contemplated
by the second preceding sentence has been made to the parties hereto, the
Trustee shall release or cause to be released to the purchasing party (or its
designee) the Mortgage Files for the remaining Mortgage Loans and shall execute
all assignments, endorsements and other instruments furnished to it by the
purchasing party as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties to the purchasing party (or its designee).
Notice of any termination shall be given promptly by the
Trustee by letter to Certificateholders mailed (x) if such notice is given in
connection with the purchase of all the Mortgage Loans and each REO Property
remaining in the Trust Fund by the Master Servicer, the Special Servicer or the
Majority Controlling Class Certificateholder, not earlier than the 15th day and
not later than the 25th day of the month next preceding the month of the final
distribution on the Certificates and (y) otherwise during the month of such
final distribution on or before the Master Servicer Remittance Date in such
month, in any event specifying (i) the Distribution Date upon which the Trust
Fund will terminate and final payment on the Certificates will be made, (ii) the
amount of any such final payment in respect of each Class of Certificates and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee therein designated. The
Trustee shall give such notice to the other parties hereto at the time such
notice is given to Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts on
deposit in the Distribution Account that is allocable to payments on the
relevant Class in accordance with Sections 4.01(a), 4.01(b) and/or 4.01(c).
Any funds not distributed to any Holder or Holders of
Certificates of any Class on the Final Distribution Date because of the failure
of such Holder or Holders to tender their Certificates shall, on such date, be
set aside and held uninvested in trust and credited to the account or accounts
of the appropriate non-tendering Holder or Holders. If any Certificates as to
which notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable escheat laws, the Trustee shall
distribute to the Class R-III Certificateholders all unclaimed funds and other
assets which remain subject hereto.
-183-
<PAGE>
SECTION 9.02. Additional Termination Requirements.
(a) If the Master Servicer, the Special Servicer or the
Majority Controlling Class Certificateholder purchases all the Mortgage Loans
and each REO Property remaining in the Trust Fund as provided in Section 9.01,
the Trust and each REMIC Pool shall be terminated in accordance with the
following additional requirements, unless the purchasing party obtains at its
own expense and delivers to the Trustee and the REMIC Administrator an Opinion
of Counsel, addressed to the Trustee and the REMIC Administrator, to the effect
that the failure of the Trust to comply with the requirements of this Section
9.02 will not result in an Adverse REMIC Event with respect to any REMIC Pool:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax
Return for each REMIC Pool, pursuant to Treasury regulation Section
1.860F-1 and shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder (as
evidenced by an Opinion of Counsel to such effect delivered on behalf
and at the expense of the purchasing party);
(ii) during such 90-day liquidation period and at or prior to
the time of making the final payment on the Certificates, the Trustee
shall sell all the Mortgage Loans and each REO Property to the Master
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder for cash in accordance with Section 9.01; and
(iii) immediately following the making of the final payment on
the Certificates, the Trustee shall distribute or credit, or cause to
be distributed or credited, to the Holders of the applicable Class of
Residual Interest Certificates all remaining cash on hand (other than
cash retained to meet claims), and each REMIC Pool shall terminate at
that time.
(b) By their acceptance of Certificates, the Holders hereby
authorize the REMIC Administrator to prepare and adopt, on behalf of the Trust,
a plan of complete liquidation of each REMIC Pool in accordance with the terms
and conditions of this Agreement, which authorization shall be binding upon all
successor Certificateholders.
-184-
<PAGE>
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) The REMIC Administrator shall elect to treat each REMIC
Pool as a REMIC under the Code and, if necessary, under applicable state law.
Each such election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state Tax Returns for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued.
(b) The applicable Plurality Residual Interest
Certificateholder is hereby designated as the Tax Matters Person of each REMIC
Pool and, in such capacity, shall be responsible to act on behalf of such REMIC
Pool in relation to any tax matter or controversy, to represent such REMIC Pool
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority, to request an administrative adjustment as
to any taxable year of such REMIC Pool, to enter into settlement agreements with
any governmental taxing agency with respect to such REMIC Pool, to extend any
statute of limitations relating to any tax item of such REMIC Pool and otherwise
to act on behalf of such REMIC Pool in relation to any tax matter or controversy
involving such REMIC Pool; provided that the REMIC Administrator is hereby
irrevocably appointed and agrees to act (in consultation with the Tax Matters
Person for each REMIC Pool) as agent and attorney-in-fact for the Tax Matters
Person for each REMIC Pool in the performance of its duties as such. The legal
expenses and costs of any action described in this Section 10.01(b) and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust payable out of amounts on deposit in the Distribution Account as provided
by Section 3.05(b) unless such legal expenses and costs are incurred by reason
of a Tax Matters Person's or the REMIC Administrator's misfeasance, bad faith or
negligence in the performance of, or such Person's reckless disregard of, its
obligations or are expressly provided by this Agreement to be borne by any party
hereto.
(c) The REMIC Administrator shall prepare or cause to be
prepared and file, and the Trustee shall sign, all of the Tax Returns in respect
of each REMIC Pool (other than Tax Returns required to be filed by the Master
Servicer and/or the Special Servicer pursuant to Section 3.09(g)) and all of the
applicable income tax and other information returns for each Grantor Trust Pool.
The expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor.
(d) The REMIC Administrator shall perform on behalf of each
REMIC Pool all reporting and other tax compliance duties that are the
responsibility of such REMIC Pool under the Code, the REMIC Provisions or other
compliance guidance issued by the IRS or any state or local taxing authority.
Included among such duties, the REMIC Administrator shall provide: (i) to any
Transferor of a Residual Interest Certificate, such information as is necessary
for the application of any tax relating to the transfer of a Residual Interest
Certificate to any Person who is not a Permitted Transferee; (ii) to the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required); and (iii) to the IRS, the name, title, address and telephone number
of the Person who will serve as the representative of each REMIC Pool.
-185-
<PAGE>
(e) The REMIC Administrator shall take such action and shall
cause each REMIC Pool to take such action as shall be necessary to create or
maintain the status thereof as a REMIC under the REMIC Provisions (and the other
parties hereto shall assist it, to the extent reasonably requested by the REMIC
Administrator) to the extent that the REMIC Administrator has actual knowledge
that any particular action is required; provided that the REMIC Administrator
shall be deemed to have knowledge of relevant tax laws. The REMIC Administrator
shall not knowingly take or fail to take any action, or cause any REMIC Pool to
take or fail to take any action, that under the REMIC Provisions, if taken or
not taken, as the case may be, could result in an Adverse REMIC Event in respect
of any REMIC Pool, unless the REMIC Administrator has received an Opinion of
Counsel to the effect that the contemplated action or non-action, as the case
may be, will not result in an Adverse REMIC Event. None of the other parties
hereto shall take or fail to take any action (whether or not authorized
hereunder) as to which the REMIC Administrator has advised it in writing that it
has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action. In addition, prior to taking any action
with respect to any REMIC Pool or the assets thereof, or causing any REMIC Pool
to take any action, which is not contemplated by the terms of this Agreement,
each of the other parties hereto will consult with the REMIC Administrator, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur, and no such other party shall take any such action or cause any REMIC
Pool to take any such action as to which the REMIC Administrator has advised it
in writing that an Adverse REMIC Event could occur. The REMIC Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement.
(f) If any tax is imposed on any REMIC Pool, including
"prohibited transactions" taxes as defined in Section 860F(a)(2) of the Code,
any tax on "net income from foreclosure property" as defined in Section 860G(c)
of the Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicer on behalf of the Trust pursuant
to Section 3.17(a)), such tax, together with all incidental costs and expenses
(including penalties and reasonable attorneys' fees), shall be charged to and
paid by: (i) the REMIC Administrator, if such tax arises out of or results from
a breach of any of its obligations under this Article X; (ii) the Trustee, if
such tax arises out of or results from a breach of any of its obligations under
Article IV, Article VIII or this Article X; (iii) any Fiscal Agent, if such tax
arises out of or results from a breach of any of its obligations under Article
IV or this Article X; (iv) the Master Servicer, if such tax arises out of or
results from a breach by the Master Servicer of any of its obligations under
Article III or this Article X; (v) the Special Servicer, if such tax arises out
of or results from a breach by the Special Servicer of any of its obligations
under Article III or this Article X; or (vi) the Trust, out of the Trust Fund
(exclusive of the Grantor Trust Pools), in all other instances. If any tax is
imposed on any Grantor Trust Pool, such tax, together with all incidental costs
and expenses (including, without limitation, penalties and reasonable attorneys'
fees), shall be charged to and paid by: (i) the REMIC Administrator, if such tax
arises out of or results from a breach by the REMIC Administrator of any of its
obligations under this Article X; (ii) the Special Servicer, if such tax arises
out of or results from a breach by the Special Servicer of any of its
obligations under Article III or this Article X; (iii) the Master Servicer, if
such tax arises out of or results from a breach by the Master Servicer of any of
its obligations under Article III or this Article X; (iv) the Trustee, if such
tax arises out of or results from a breach by the Trustee of any of its
obligations under Article IV, Article VIII or this Article X; or (v) the Trust,
out of the portion of the Trust Fund constituting such Grantor Trust Pool, in
all other instances. Any tax permitted to be incurred by the Special Servicer
pursuant to Section 3.17(a) shall be charged to and paid by the Trust. Any such
amounts payable by the Trust in
-186-
<PAGE>
respect of taxes shall be paid by the Trustee at the direction of the REMIC
Administrator out of amounts on deposit in the Distribution Account.
(g) The REMIC Administrator and, to the extent that records
are maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each REMIC Pool and each Grantor Trust Pool on a
calendar year and an accrual basis.
(h) Following the Startup Day for each REMIC Pool, the Trustee
shall not (except as contemplated by Section 2.03) accept any contributions of
assets to any REMIC Pool unless it shall have received an Opinion of Counsel (at
the expense of the party seeking to cause such contribution) to the effect that
the inclusion of such assets in such REMIC Pool will not result in an Adverse
REMIC Event in respect of such REMIC Pool.
(i) None of the REMIC Administrator, the Master Servicer, the
Special Servicer, the Trustee or any Fiscal Agent shall consent to or, to the
extent it is within the control of such Person, permit: (i) the sale or
disposition of any Mortgage Loan (except in connection with (A) a breach of any
representation or warranty regarding any Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement or, in the
case of a Column Third Party Mortgage Loan, the Union Capital Agreement or as
otherwise contemplated by Section 2.02(e), (B) the foreclosure, default or
reasonably foreseeable material default of a Mortgage Loan, including the sale
or other disposition of a Mortgaged Property acquired by foreclosure, deed in
lieu of foreclosure or otherwise, (C) the bankruptcy of any REMIC Pool, or (D)
the termination of the Trust pursuant to Article IX of this Agreement); (ii) the
sale or disposition of any investments in the Collection Account or the REO
Account for gain; or (iii) the acquisition of any assets for the Trust (other
than a Mortgaged Property acquired through foreclosure, deed in lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan, other than a
Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Collection Account or the REO Account); in any event unless it has received an
Opinion of Counsel (at the expense of the party seeking to cause such sale,
disposition, or acquisition) to the effect that such sale, disposition, or
acquisition will not result in an Adverse REMIC Event in respect of any REMIC
Pool.
(j) Except as otherwise permitted by Section 3.17(a), none of
the REMIC Administrator, the Master Servicer, the Special Servicer or the
Trustee shall enter into any arrangement by which any REMIC Pool will receive a
fee or other compensation for services or, to the extent it is within the
control of such Person, permit any REMIC Pool to receive any income from assets
other than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code. At all
times as may be required by the Code, each of the respective parties hereto (to
the extent it is within its control) shall ensure that substantially all of the
assets of each REMIC Pool will consist of "qualified mortgages" as defined in
Section 860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) Within thirty (30) days after the Closing Date, the REMIC
Administrator shall prepare and file with the IRS, with respect to each REMIC
Pool, Form 8811 "Information Return for Real Estate Mortgage Investment Conduits
(REMICs) and Issuers of Collateralized Debt Obligations".
-187-
<PAGE>
(l) On or before April 15 of each calendar year, commencing
April 15, 2000, unless the REMIC Administrator and the Trustee are the same
Person, the REMIC Administrator shall deliver to the Trustee an Officer's
Certificate from a Responsible Officer of the REMIC Administrator confirming the
REMIC Administrator's compliance with its obligations under this Agreement
during the prior calendar year.
(m) The parties intend that the portion of the Trust Fund
consisting of Additional Interest on the GECA Mortgage Loans and the Class D-1
Sub-Account and shall constitute, and that the affairs of such portion of the
Trust Fund shall be conducted so as to qualify as, a "grantor trust" under the
Code, and the provisions hereof shall be interpreted consistently with this
intention. In addition, the parties intend that the portion of the Trust Fund
consisting of Additional Interest on the Column Mortgage Loans and the Class D-2
Sub-Account shall constitute, and that the affairs of such portion of the Trust
Fund shall be conducted so as to qualify as, a "Grantor Trust" under the Code,
and the provisions hereof shall be interpreted consistently with this intention.
Further, the parties intend that the portion of the Trust Fund consisting of the
Loan REMIC Residual Interests and the REMIC I Residual Interest shall
constitute, and that the affairs of such portion of the Trust Fund shall be
conducted so as to qualify as, a "Grantor Trust" under the Code, and the
provisions hereof shall be interpreted consistently with this intention. The
REMIC Administrator shall also perform on behalf of each Grantor Trust Pool all
reporting and other tax compliance duties that are the responsibility of such
Grantor Trust under the Code or any compliance guidance issued by the IRS or any
state or local taxing authorities. The expenses of preparing and filing such
returns shall be borne by the REMIC Administrator.
SECTION 10.02. Depositor, Master Servicer, Special Servicer,
Trustee and Fiscal Agent to Cooperate with
REMIC Administrator.
(a) The Depositor shall provide or cause to be provided to the
REMIC Administrator, within ten (10) days after the Closing Date, all
information or data that the REMIC Administrator reasonably determines to be
relevant for tax purposes as to the valuations and issue prices of the
Certificates, including the price, yield, prepayment assumption and projected
cash flow of the Certificates.
(b) Each of the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent shall furnish such reports, certifications and
information in its possession, and access to such books and records maintained
thereby, as may relate to the Certificates or the Trust Fund and as shall be
reasonably requested by the REMIC Administrator in order to enable it to perform
its duties hereunder.
SECTION 10.03. Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not
the same Person, the Trustee covenants and agrees to pay to the REMIC
Administrator from time to time, and the REMIC Administrator shall be entitled
to, reasonable compensation (as set forth in a written agreement between the
Trustee and the REMIC Administrator) for all services rendered by the REMIC
Administrator in the exercise and performance of any of its obligations and
duties hereunder.
-188-
<PAGE>
SECTION 10.04. Use of Agents.
The REMIC Administrator may execute any of its obligations and
duties hereunder either directly or by or through agents or attorneys-in-fact
approved by the Trustee (which approval shall not be unreasonably withheld);
provided that the REMIC Administrator will not be relieved of its obligations
hereunder by reason of the use of such agents or attorneys-in-fact.
-189-
<PAGE>
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the
mutual agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be inconsistent with any other
provision herein or to correct any error, (iii) to add any other provisions with
respect to matters or questions arising hereunder which shall not be
inconsistent with the provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by (A) the REMIC Provisions (if the REMIC
Provisions are amended or clarified such that any such requirement may be
relaxed or eliminated) or (B) the Securities Act or the rules thereunder (if the
Securities Act or such rules are amended or clarified such that any such
requirement may be relaxed or eliminated), (v) as evidenced by an Opinion of
Counsel delivered to the Trustee and the REMIC Administrator, either (X) to
comply with any requirements imposed by the Code or any successor or amendatory
statute or any temporary or final regulation, revenue ruling, revenue procedure
or other written official announcement or interpretation relating to federal
income tax laws or any such proposed action which, if made effective, would
apply retroactively to any REMIC Pool or any Grantor Trust Pool at least from
the effective date of such amendment, or (Y) to avoid the occurrence of a
prohibited transaction or to reduce the incidence of any tax that would arise
from any actions taken with respect to the operation of any REMIC Pool or any
Grantor Trust Pool, (vi) as provided in Section 5.02(d)(iv), to modify, add to
or eliminate any of the provisions of Section 5.02(d)(i), (ii) or (iii); or
(vii) for any other purpose; provided that such amendment (other than any
amendment for any of the specific purposes described in clauses (v) and (vi)
above) shall not adversely affect in any material respect the interests of any
Certificateholder, Archon or other Designated Sub-Servicers, as evidenced by an
Opinion of Counsel obtained by or delivered to the Trustee to such effect; and
provided, further, that any such amendment covered solely by clause (vii) above
shall not (as confirmed in writing to the Trustee by each Rating Agency) result
in an Adverse Rating Event with respect to any Class of Rated Certificates.
(b) This Agreement may also be amended from time to time by
the mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to not less than 66 2/3% of the Voting Rights allocated to
all of the affected Classes, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments received or advanced on Mortgage Loans and/or REO
Properties which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (i) above without the consent of the Holders
of all Certificates of such Class, (iii) modify the provisions of this Section
11.01 without the consent of the Holders of all Certificates then outstanding or
(iv) adversely affect in any material respect the interests of any Designated
Sub-Servicer as provided herein without the consent of such Designated
Sub-Servicer. Notwithstanding any other provision of this Agreement, for
purposes of the giving or withholding of consents pursuant to this Section
11.01, Certificates registered in the name of the Depositor or any Affiliate of
the Depositor shall be entitled to the same Voting Rights with respect to the
matters described above as they would if registered in the name of any other
Person.
-190-
<PAGE>
(c) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the REMIC Administrator shall consent to any amendment
to this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to any party hereto in accordance with such amendment will not
result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to any Grantor Trust Pool.
(d) Promptly after the execution and delivery of any amendment
by all parties thereto, the Trustee shall send a copy thereof to each
Certificateholder and to each Rating Agency.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into
any amendment pursuant to this Section 11.01 that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered
pursuant to Section 11.01(a) or (c) shall be borne by the Person seeking the
related amendment, except that if the Trustee requests any amendment of this
Agreement that it reasonably believes protects or is in furtherance of the
rights and interests of Certificateholders, the cost of any Opinion of Counsel
required in connection therewith pursuant to Section 11.01(a) or (c) shall be
payable out of the Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust (payable out of the
Collection Account), but only upon written direction of the Depositor
accompanied by an Opinion of Counsel (the cost of which may be paid out of the
Collection Account) to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
-191-
<PAGE>
(b) No Certificateholder shall have any right to vote (except
as expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for sixty (60) days after its receipt of such notice, request and offer
of indemnity, shall have neglected or refused to institute any such action, suit
or proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of any other Holders of Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder (which priority
or preference is not otherwise provided for herein), or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in
accordance with the substantive laws of the State of New York applicable to
agreements made and to be performed entirely in said State, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws. The parties hereto intend that the provisions of Section 5-1401
of the New York General Obligations Law shall apply to this Agreement.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall
be in writing and, unless otherwise expressly provided herein, shall be deemed
to have been duly given when delivered to: (i) in the case of the Depositor, DLJ
Commercial Mortgage Corp., 277 Park Avenue, 9th Floor, New York, New York 10172,
Attention: N. Dante LaRocca, telecopy number: (212) 892-2003; (ii) in the case
of the Master Servicer, GE Capital Loan Services, Inc., 363 North Sam Houston
Parkway East, Suite 1200, Houston, Texas 77060, Attention: Legal Department,
telecopy number (281) 405-7145; (iii) in the case of the Special Servicer, Banc
One Mortgage Capital Markets, LLC, 1717 Main Street, 14th Floor, Dallas, Texas
75201, Attention: Edgar L. Smith II, telecopy number: (214) 237-2034, with a
copy to Banc One Mortgage Capital Markets, LLC, 1717 Main Street, 12th Floor,
Dallas, Texas 75201, Attention: Paul G. Smyth, telecopy
-192-
<PAGE>
number: (214) 237-2040; (iv) in the case of the Trustee and the REMIC
Administrator, Norwest Bank Minnesota, National Association, 11000 Broken Land
Parkway, Columbia, Maryland 21044-3562, Attention: Corporate Trust Services
(CMBS)-DLJ Commercial Mortgage Corp., Series 1999-CG2, telecopy number: (410)
884-2372; (v) in the case of the Rating Agencies, (A) Moody's Investors Service,
Inc., 99 Church Street, New York, New York 10007, Attention: Commercial MBS
Monitoring Department, telecopy number (212) 553-0300; and (B) in the case of
Fitch IBCA, Inc., One State Street Plaza, New York, New York 10004, Attention:
Commercial Mortgage Surveillance Department, telecopy number: (212) 635-0295;
(vi) in the case of GECA, GE Capital Access, Inc., 125 Park Avenue, New York,
New York 10017, Attention: Director - Securitization, telecopy number (212)
716-8911; (vii) in the case of GSMC, Goldman Sachs Mortgage Company, 85 Broad
Street, New York, New York 10004, Attention: Jay Strauss, telecopy number (212)
902-4140 and (viii) in the case of Column, Column Financial Inc., 3414 Peachtree
Road, N.E., Suite 1140, Atlanta, Georgia 30326-1113, Attention: President,
telecopy number (404) 239-0419; or as to each such Person such other address
and/or telecopy number as may hereafter be furnished by such Person to the
parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown in
the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenant(s), agreement(s), provision(s) or term(s) shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto, their respective successors and
assigns and, as third party beneficiaries (with all right to enforce the
obligations hereunder intended for their benefit as if a party hereto), the
Underwriters and the non-parties referred to in Sections 6.03, 8.05 and 3.22(g),
and all such provisions shall inure to the benefit of the Certificateholders. No
other person, including any Borrower, shall be entitled to any benefit or
equitable right, remedy or claim under this Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notices to and from the Rating Agencies and the
Depositor.
(a) The Trustee shall promptly provide notice to each Rating
Agency and the Depositor with respect to each of the following of which a
Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
-193-
<PAGE>
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation, termination, merger or consolidation of
the Master Servicer, the Special Servicer or the REMIC Administrator
and the appointment of a successor;
(iv) the appointment, resignation or removal of a Fiscal
Agent;
(v) any change in the location of the Distribution Account or
the Interest Reserve Account;
(vi) any repurchase or substitution of a Mortgage Loan by
GECA, GSMC, Column or Union Capital as contemplated by Section 2.03;
and
(vii) the final payment to any Class of Certificateholders.
(b) The Master Servicer shall promptly provide notice to each
Rating Agency and the Depositor with respect to each of the following of which
it has actual knowledge:
(i) the resignation or removal of the Trustee and the
appointment of a successor; and
(ii) any change in the location of the Collection Account.
(c) Each of the Master Servicer and the Special Servicer, as
the case may be, shall furnish each Rating Agency such information with respect
to the Mortgage Loans as such Rating Agency shall reasonably request and which
the Master Servicer or the Special Servicer, as the case may be, can reasonably
provide to the extent consistent with applicable law and the related Mortgage
Loan documents. In any event, the Master Servicer and the Special Servicer shall
notify each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) any change in the lien priority of the Mortgage securing
any Mortgage Loan;
(ii) any change in the identity of the anchor tenant (i.e., a
tenant representing more than 20% of the total net rentable square feet
of space) at any Mortgaged Property used for retail purposes or any
change in the term of the lease for an anchor tenant at any such
Mortgaged Property; and
(iii) any assumption of, or release or substitution of
collateral for, a Mortgage Loan that represents greater than 2% of the
then aggregate Stated Principal Balance of the Mortgage Pool;
(iv) any defeasance of or material damage to a Mortgaged
Property.
(d) Each of the Master Servicer and the Special Servicer, as
the case may be, shall promptly furnish to each Rating Agency copies of the
following items (in each case, at or about the same time that it delivers or
causes the delivery of such item to the Trustee):
(i) each of its Annual Performance Certifications;
-194-
<PAGE>
(ii) each of its Annual Accountants' Reports; and
(iii) each report prepared pursuant to Section 3.09(e) and
Section 3.12.
(e) The Trustee shall promptly deliver to each Rating Agency
(in hard copy format or through use of the Trustee's Internet Website for
Moody's) a copy of each Trustee Report, Unrestricted Servicer Report and
Restricted Servicer Report forwarded to the Holders of the Certificates (in each
case, at or about the same time that it delivers such Certificateholder Report
to such Holders). Any Restricted Servicer Reports delivered electronically as
aforesaid shall be accessible on the Trustee's Internet Website only with the
use of a password, which shall be provided by the Trustee to each Rating Agency.
(f) The parties intend that each Rating Agency provide to the
Trustee, upon request, a listing of the then-current rating (if any) assigned by
such Rating Agency to each Class of Certificates then outstanding.
SECTION 11.10. Notices to Controlling Class Representative.
The Trustee, the Master Servicer or the Special Servicer, as
the case may be, shall deliver to the Controlling Class Representative a copy of
each notice or other item of information such Person is required to deliver to
the Rating Agencies pursuant to Section 11.09, in each case simultaneously with
the delivery thereof to the Rating Agencies.
SECTION 11.11. Information Requested by GECA.
The Trustee shall provide to GECA promptly following any
written request therefor submitted by GECA any Certificateholder Reports
theretofore or simultaneously delivered or made available by the Trustee to
Certificateholders. Such reports shall be provided or made available in
electronic format or, if requested by GECA, by first class mail.
SECTION 11.12. Complete Agreement.
This Agreement embodies the complete agreement among the
parties and may not be varied or terminated except by a written agreement
conforming to the provisions of Section 11.01. All prior negotiations or
representations of the parties are merged into this Agreement and shall have no
force or effect unless expressly stated herein.
-195-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers thereunto duly authorized, in
each case as of the day and year first above written.
DLJ COMMERCIAL MORTGAGE CORP.
Depositor
By: /s/ N. Dante LaRocca
---------------------------------------------------
Name: N. Dante LaRocca
Title: Senior Vice President
GE CAPITAL LOAN SERVICES, INC.
Master Servicer
By: /s/ Joseph F. Beggins
---------------------------------------------------
Name: Joseph F. Beggins
Title: President and Chief Executive Officer
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
Special Servicer
By: /s/ Edgar L. Smith
---------------------------------------------------
Name: Edgar L. Smith
Title: Chief Operating Officer
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
solely in its capacity as
Trustee and REMIC Administrator
By: /s/ Leslie Gaskill
---------------------------------------------------
Name: Leslie Gaskill
Title: Vice President
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 21st day of June 1999, before me, a notary public in
and for said State, personally appeared Dante LaRocca, personally known to me to
be a Senior Vice President of DLJ COMMERCIAL MORTGAGE CORP., one of the entities
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Diane Anterio
-----------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF HARRIS )
On this 14th day of June 1999, before me, a notary public in
and for said State, personally appeared Joseph F. Beggins, personally known to
me to be the President & CEO of GE CAPITAL LOAN SERVICES, INC., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Bernadette Tatum
-----------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On this 21st day of June 1999, before me, a notary public in
and for said State, personally appeared Edgar L. Smith II, personally known to
me to be the Chief Operating Officer of BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
one of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Denise C. Schneider
-----------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 21st day of June 1999 before me, a notary public in and
for said State, personally appeared Leslie A. Gaskill, personally known to me to
be a Vice President of NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Jack A. Aini
------------------------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-1
FORM OF CLASS S CERTIFICATES
CLASS S COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-CG2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: Class Notional Amount of the Class S
Variable Certificates as of the Closing Date:
$
Cut-off Date: June 1, 1999 Initial Certificate Notional Amount of
this Certificate as of the Closing Date:
Closing Date: June 22, 1999 $
First Distribution Date: Aggregate Stated Principal Balance of
July 12, 1999 the Mortgage Loans as of the Closing
Date ("Initial Pool Balance"): $
Master Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. S-___ CUSIP No.: ________________
A-1-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS JUNE 22, 1999. ASSUMING THAT
THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY PREPAYMENT OF
PRINCIPAL (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR
RESPECTIVE ANTICIPATED REPAYMENT DATES), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $______ OF OID PER $100,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT,
THE YIELD TO MATURITY IS ____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____ PER $100,000 OF INITIAL
CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER A CONSTANT YIELD METHOD WITH DAILY
COMPOUNDING. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.
A-1-2
<PAGE>
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional amount of this Certificate (its "Certificate Notional Amount") as of
the Closing Date by the aggregate notional amount of all the Class S
Certificates (their "Class Notional Amount") as of the Closing Date) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class S Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off
Date specified above (the "Agreement"), among DLJ Commercial Mortgage Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), GE Capital Loan Services, Inc. as master servicer (the "Master
Servicer," which term includes any successor entity under the Agreement), Banc
One Mortgage Capital Markets, LLC as special servicer (the "Special Servicer,"
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association as trustee and REMIC administrator (the
"Trustee" and "REMIC Administrator", respectively, depending upon the capacity
in which it is acting, each of which terms includes any successor entity under
the Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as defined below) in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class S Certificates on the applicable Distribution Date pursuant to the
Agreement. The "Determination Date" in each month, commencing in July 1999, will
be the fourth day of such month or, if such fourth day is not a Business Day,
then the immediately preceding Business Day. All distributions made under the
Agreement on this Certificate will be made by the Trustee by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
A-1-3
<PAGE>
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only
without coupons. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for new Certificates of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of this Certificate, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of this Certificate.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar
and any agent of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the
A-1-4
<PAGE>
Majority Controlling Class Certificateholder, at a price determined as provided
in the Agreement, of all the Mortgage Loans and each REO Property remaining in
the Trust Fund. The Agreement permits, but does not require, the Master
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and any Fiscal Agent and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 662/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-1-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to in the
within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:
---------------------------------
Authorized Officer
A-1-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Dated:
---------------------------------------------
Signature by or on behalf of Assignor
---------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer
or otherwise, in immediately available funds, to ______________________ for the
account of ___________________________________________________________.
Distributions made by check (such check to be made payable to
__________) and all applicable statements and notices should be mailed to _____
____________________________________.
This information is provided by ________________________, the
Assignee named above, or ____________________, as its agent.
A-1-7
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-1A AND A-1B CERTIFICATES
CLASS [A-1A] [A-1B] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 1999-CG2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: Class Principal Balance of the Class
[___% per annum FOR CLASS A-1A [A-1A] [A-1B] Certificates as of the
CERTIFICATES] [Variable FOR CLASS closing date: $
A-1B CERTIFICATES]
Cut-off Date: June 1, 1999 Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
Closing Date: June 22, 1999 $
First Distribution Date: Aggregate Stated Principal Balance of
July 12, 1999 the Mortgage Loans as of the Closing
Date ("Initial Pool Balance"): $
Master Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. [A-1A] [A-1B]-___ CUSIP No.:________________
A-2-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
A-2-2
<PAGE>
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [A-1A]
[A-1B] Certificates (their "Class Principal Balance") as of the Closing Date) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class [A-1A] [A-1B] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of the Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor", which term includes any successor
entity under the Agreement), GE Capital Loan Services, Inc. as master servicer
(the "Master Servicer," which term includes any successor entity under the
Agreement), Banc One Mortgage Capital Markets, LLC as the special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association as trustee and REMIC
administrator (the "Trustee" and "REMIC Administrator", respectively, depending
upon the capacity in which it is acting, each of which terms includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as defined below) in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [A-1A] [A-1B] Certificates on the applicable Distribution Date pursuant to
the Agreement. The "Determination Date" in each month, commencing in July 1999,
will be the fourth day of such month or, if such fourth day is not a Business
Day, then the immediately preceding Business Day. All distributions made under
the Agreement on this Certificate will be made by the Trustee by wire transfer
of immediately available funds to the account of the Person entitled thereto at
a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any portion of an Unreimbursed Principal
Balance Reduction in respect of this Certificate) will be made in like manner,
but only upon presentation and surrender of this Certificate at the offices of
the Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution.
A-2-3
<PAGE>
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only
without coupons. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for new Certificates of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of this Certificate, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of this Certificate.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar
and any agent of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
A-2-4
<PAGE>
Subject to certain terms and conditions set forth in the
Agreement, the Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Controlling Class Certificateholder, at a price determined as
provided in the Agreement, of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and any Fiscal Agent and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 662/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-2-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1A] [A-1B] Certificates referred
to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:
---------------------------------
Authorized Officer
A-2-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer
or otherwise, in immediately available funds, to ______________________________
_______________________________________________________________________________
for the account of ___________________________________________________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should
be mailed to ________________________________________.
This information is provided by ____________________________,
the Assignee named above, or ____________________, as its agent.
A-2-7
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-2, CLASS A-3, CLASS A-4, CLASS B-1 AND B-2 CERTIFICATES
CLASS [A-2] [A-3] [A-4] [B-1] [B-2] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-CG2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: Class Principal Balance of the Class [A-2] [A-
Variable 3] [A-4] [B-1] [B-2] Certificates as of the
Closing Date:
$
Cut-off Date: June 1, 1999 Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Closing Date: June 22, 1999 $
First Distribution Date: Aggregate Stated Principal Balance of the
July 12, 1999 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $
Master Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. [A-2] [A-3] [A-4] [B-1] [B-2]-___ CUSIP No.: ______________
A-3-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
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
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS JUNE 22, 1999. ASSUMING THAT
THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY
A-3-2
<PAGE>
VOLUNTARY OR INVOLUNTARY PREPAYMENT OF PRINCIPAL (EXCEPT THAT THE ARD LOANS ARE
ASSUMED TO BE PAID IN FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES),
THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ____% PER ANNUM,
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$_____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER A
CONSTANT YIELD METHOD WITH DAILY COMPOUNDING. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [A-2] [A-3]
[A-4] [B-1] [B-2] Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Class [A-2] [A-3] [A-4] [B-1] [B-2] Certificates. The Trust
Fund was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the "Depositor",
which term includes any successor entity under the Agreement), GE Capital Loan
Services, Inc. as master servicer (the "Master Servicer," which term includes
any successor entity under the Agreement), Banc One Mortgage Capital Markets,
LLC as special servicer (the "Special Servicer," which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association as trustee and REMIC administrator (the "Trustee" and "REMIC
Administrator", respectively, depending upon the capacity in which it is acting,
each of which terms includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of its acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as defined below) in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [A-2] [A-3] [A-4] [B-1] [B-2] Certificates on the applicable Distribution
Date pursuant to the Agreement. The "Determination Date" in each month,
commencing in July 1999, will be the fourth day of such month or, if such fourth
day is not a Business Day, then the immediately preceding
A-3-3
<PAGE>
Business Day. All distributions made under the Agreement on this Certificate
will be made by the Trustee by wire transfer of immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any portion of an Unreimbursed Principal Balance Reduction in respect of this
Certificate) will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only
without coupons. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for new Certificates of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate or any interest herein shall
be made (A) to any retirement plan or other employee benefit plan or
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that is subject to ERISA or Section 4975 of the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing this Certificate
or any interest herein on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan, if the purchase and holding of this Certificate or such
interest herein by the prospective Transferee would result in a violation of
Section 406 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code. Except in limited
circumstances, the Certificate Registrar shall refuse to register the transfer
of this Certificate unless it has received from the prospective Transferee
either (i) a certification to the effect that such prospective Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Section 406 of ERISA and Section
A-3-4
<PAGE>
4975 of the Code under Sections I and III of Prohibited Transaction Class
Exemption 95-60; or (iii) a certification of facts and an Opinion of Counsel
which otherwise establish to the reasonable satisfaction of the Trustee that
such transfer will not result in a violation of Section 406 of ERISA or Section
4975 of the Code or result in the imposition of an excise tax under Section 4975
of the Code. If any Transferee of this Certificate or any interest herein does
not, in connection with the subject transfer, deliver to the Certificate
Registrar a certification and/or Opinion of Counsel as required by the preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that either: (i) such Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate or such interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) the purchase and
holding of this Certificate or such interest herein by such Transferee is exempt
from the prohibited transaction provisions of Section 406 of ERISA and Section
4975 of the Code under Sections I and III of Prohibited Transactions Class
Exemption 95-60.
If a Person is acquiring this Certificate as a fiduciary or
agent for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the foregoing acknowledgments, representations, warranties,
certifications and/or agreements with respect to each such account as described
in the preceding paragraph.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of this Certificate, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of this Certificate.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar
and any agent of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
A-3-5
<PAGE>
Subject to certain terms and conditions set forth in the
Agreement, the Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Controlling Class Certificateholder, at a price determined as
provided in the Agreement, of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and any Fiscal Agent and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 662/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-3-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:
-------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-2] [A-3] [A-4] [B-1] [B-2]
Certificates referred to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:
-------------------------------
Authorized Officer
A-3-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer
or otherwise, in immediately available funds, to _____________________________
______________________________________________________________________________
for the account of ___________________________________________________________.
Distributions made by check (such check to be made payable to
________________) and all applicable statements and notices should be mailed to
_______________________________.
This information is provided by ________________________, the
Assignee named above, or ____________________, as its agent.
A-3-8
<PAGE>
EXHIBIT A-4
FORM OF CLASS B-3, CLASS B-4, CLASS B-5, CLASS B-6,
CLASS B-7, CLASS B-8 AND CLASS C CERTIFICATES
CLASS [B-3] [B-4] [B-5] [B-6] [B-7] [B-8] [C] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-CG2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: Class Principal Balance of the Class [B-3]
____% per annum [B-4] [B-5] [B-6] [B-7] [B-8] [C]
Certificates as of the Closing Date:
$
Cut-off Date: June 1, 1999 Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
Closing Date: June 22, 1999 $
First Distribution Date: Aggregate Stated Principal Balance of the
July 12, 1999 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $
Master Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No.[B-3] [B-4] [B-5] [B-6] [B-7] CUSIP No.: ___________
[B-8] [C]-___
A-4-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
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
SECTION 4975 OF INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B)
TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
A-4-2
<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS JUNE 22, 1999. ASSUMING THAT
THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY PREPAYMENT OF
PRINCIPAL (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR
RESPECTIVE ANTICIPATED REPAYMENT DATES), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $______ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
THE YIELD TO MATURITY IS ____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER A CONSTANT YIELD METHOD WITH DAILY
COMPOUNDING. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that __________________ is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the principal amount of this Certificate (its "Certificate Principal Balance")
as of the Closing Date by the aggregate principal amount of all the Class [B-3]
[B-4] [B-5] [B-6] [B-7] [B-8] [C] Certificates (their "Class Principal Balance")
as of the Closing Date) in that certain beneficial ownership interest in the
Trust Fund evidenced by all the Class [B-3] [B-4] [B-5] [B-6] [B-7] [B-8] [C]
Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date
specified above (the "Agreement"), among DLJ Commercial Mortgage Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement),GE Capital Loan Services, Inc. as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), Banc
One Mortgage Capital Markets, LLC as special servicer (the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association as trustee and REMIC administrator (the
"Trustee" and "REMIC Administrator", respectively, depending upon the capacity
in which it is acting, each of which terms includes any successor entity under
the Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
A-4-3
<PAGE>
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as defined below) in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [B-3] [B-4] [B-5] [B-6] [B-7] [B-8] [C] Certificates on the applicable
Distribution Date pursuant to the Agreement. The "Determination Date" in each
month, commencing in July 1999, will be the fourth day of such month or, if such
fourth day is not a Business Day, then the immediately preceding Business Day.
All distributions made under the Agreement on this Certificate will be made by
the Trustee by wire transfer of immediately available funds to the account of
the Person entitled thereto at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any portion
of an Unreimbursed Principal Balance Reduction in respect of this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only
without coupons. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for new Certificates of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
A-4-4
<PAGE>
No transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of this Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a transfer of this Certificate by the Depositor,
then the Certificate Registrar shall refuse to register such transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any
Fiscal Agent or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based. If any Transferee of this Certificate does not, in connection with the
subject transfer, deliver to the Certificate Registrar one of the certifications
described in clause (ii) of the preceding sentence or the Opinion of Counsel
described in clause (iii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject transfer, true and correct. Any Certificateholder
desiring to effect a transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, the Underwriters, the Trustee, any Fiscal Agent, the Master
Servicer, the Special Servicer, the REMIC Administrator and the Certificate
Registrar against any liability that may result if such transfer, sale, pledge
or other disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall
be made except to a Qualified Institutional Buyer or an Institutional Accredited
Investor. The Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee a
certification, substantially in the form attached as Annex 1 or Annex 2 to
Exhibit F-2A to the Agreement, to the effect that such prospective Transferee is
a Qualified Institutional Buyer or a certification from the prospective
Transferee to the effect that such prospective Transferee is an Institutional
Accredited Investor.
No transfer of this Certificate or any interest herein shall
be made (A) to any retirement plan or other employee benefit plan or
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that is subject to ERISA or Section 4975 of the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing this Certificate
or any interest herein on behalf of, as named fiduciary
A-4-5
<PAGE>
of, as trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 of ERISA or Section 4975 of the Code or would
result in the imposition of an excise tax under Section 4975 of the Code. Except
in limited circumstances, the Certificate Registrar shall refuse to register the
transfer of this Certificate unless it has received from the prospective
Transferee either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate on behalf of, as named fiduciary of, as trustee of, or with assets
of a Plan; or (ii) a certification to the effect that the purchase and holding
of this Certificate by such prospective Transferee is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60; or
(iii) a certification of facts and an Opinion of Counsel which otherwise
establish to the reasonable satisfaction of the Trustee that such transfer will
not result in a violation of Section 406 of ERISA or Section 4975 of the Code or
result in the imposition of an excise tax under Section 4975 of the Code. If any
Transferee of this Certificate or any interest herein does not, in connection
with the subject transfer, deliver to the Certificate Registrar a certification
and/or Opinion of Counsel as required by the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that either: (i)
such Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) the purchase and holding of this
Certificate or such interest herein by such Transferee is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Sections I and III of Prohibited Transactions Class Exemption
95-60.
If a Person is acquiring this Certificate as a fiduciary or
agent for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the foregoing acknowledgments, representations, warranties,
certifications and/or agreements with respect to each such account as described
in the two preceding paragraphs.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of this Certificate, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of this Certificate.
A-4-6
<PAGE>
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar
and any agent of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Controlling Class Certificateholder, at a price determined as
provided in the Agreement, of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and any Fiscal Agent and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 662/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
A-4-7
<PAGE>
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-4-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B-3] [B-4] [B-5] [B-6] [B-7] [B-8]
[C] Certificates referred to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:
-----------------------------------
Authorized Officer
A-4-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Dated:
---------------------------------------
Signature by or on behalf of Assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer
or otherwise, in immediately available funds, to ______________________________
_______________________________________________________________________________
for the account of ___________________________________________________________.
Distributions made by check (such check to be made payable to
_____________) and all applicable statements and notices should be mailed to
______________________________________.
This information is provided by ___________________________,
the Assignee named above, or ____________________, as its agent.
A-4-10
<PAGE>
EXHIBIT A-5
FORM OF CLASS D-1 and CLASS D-2 CERTIFICATES
CLASS [D-1] [D-2] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-CG2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Cut-off Date: June 1, 1999 Percentage Interest evidenced by this Class
[D-1] [D-2] Certificate: ______%
Closing Date: June 22, 1999
First Distribution Date: Aggregate Stated Principal Balance of the
July 12, 1999 Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $
Master Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital
Markets, LLC
Certificate No. [D-1] [D-2]-___
A-5-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
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 (B) TO ANY PERSON
WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF
ANY) RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
A-5-2
<PAGE>
This certifies that __________________ is the registered owner
of the Percentage Interest evidenced by this Certificate (as specified above) in
that certain beneficial ownership interest in the Trust Fund evidenced by
evidenced by all the Class [D-1] [D-2] Certificates. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as of the Cut-off Date specified above (the "Agreement"), among DLJ
Commercial Mortgage Corp. as depositor (the "Depositor", which term includes any
successor entity under the Agreement), GE Capital Loan Services, Inc. as master
servicer (the "Master Servicer", which term includes any successor entity under
the Agreement), Banc One Mortgage Capital Markets, LLC as special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association as trustee and REMIC
administrator (the "Trustee" and "REMIC Administrator", respectively, depending
upon the capacity in which it is acting, each of which terms includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as defined below) in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [D-1] [D-2] Certificates on the applicable Distribution Date pursuant to
the Agreement. The "Determination Date" in each month, commencing in July 1999,
will be the fourth day of such month or, if such fourth day is not a Business
Day, then the immediately preceding Business Day. All distributions made under
the Agreement on this Certificate will be made by the Trustee by wire transfer
of immediately available funds to the account of the Person entitled thereto at
a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement
A-5-3
<PAGE>
of advances made, or certain expenses incurred, with respect to the Mortgage
Loans and the payment of interest on such advances and expenses.
This Certificate is issuable in fully registered form only
without coupons. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for new Certificates of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of this Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a transfer of this Certificate by the Depositor,
then the Certificate Registrar shall refuse to register such transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any
Fiscal Agent or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based. If any Transferee of this Certificate does not, in connection with the
subject transfer, deliver to the Certificate Registrar one of the certifications
described in clause (ii) of the preceding sentence or the Opinion of Counsel
described in clause (iii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject transfer, true and correct. Any Certificateholder
desiring to effect a transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, the Underwriters, the Trustee, any Fiscal Agent, the Master
Servicer, the Special Servicer, the REMIC Administrator and the Certificate
Registrar against any liability that may result if such transfer, sale, pledge
or other disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
A-5-4
<PAGE>
No transfer of this Certificate or any interest herein shall
be made except to a Qualified Institutional Buyer or an Institutional Accredited
Investor. The Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee a
certification, substantially in the form attached as Annex 1 or Annex 2 to
Exhibit F-2A to the Agreement, to the effect that such prospective Transferee is
a Qualified Institutional Buyer or a certification from the prospective
Transferee to the effect that such prospective Transferee is an Institutional
Accredited Investor.
No transfer of this Certificate or any interest herein shall
be made (A) to any retirement plan or other employee benefit plan or
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that is subject to ERISA or Section 4975 of the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing this Certificate
or any interest herein on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan, if the purchase and holding of this Certificate or such
interest herein by the prospective Transferee would result in a violation of
Section 406 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code. Except in limited
circumstances, the Certificate Registrar shall refuse to register the transfer
of this Certificate unless it has received from the prospective Transferee
either (i) a certification to the effect that such prospective Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code. If any Transferee of this
Certificate or any interest herein does not, in connection with the subject
transfer, deliver to the Certificate Registrar a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transactions Class Exemption 95-60.
If a Person is acquiring this Certificate as a fiduciary or
agent for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the foregoing acknowledgments, representations, warranties,
certifications and/or agreements with respect to each such account as described
in the two preceding paragraphs.
A-5-5
<PAGE>
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of this Certificate, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of this Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar
and any agent of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Controlling Class Certificateholder, at a price determined as
provided in the Agreement, of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and any Fiscal Agent and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 662/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances,
A-5-6
<PAGE>
including any amendment necessary to maintain the status of any REMIC Pool as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-5-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:
-------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [D-1] [D-2] Certificates referred to
in the within-mentioned Agreement.
Dated: June ___, 1999
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:
-------------------------------
Authorized Officer
A-5-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
---------------------------------------
Signature by or on behalf of Assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer
or otherwise, in immediately available funds, to _______________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_______________) and all applicable statements and notices should be mailed to
______________________________________________.
This information is provided by , the Assignee
named above, or ____________________, as its agent.
A-5-9
<PAGE>
EXHIBIT A-6
FORM OF CLASS R-I, CLASS R-II, CLASS R-III CERTIFICATES
CLASS [R-I] [R-II] [R-III] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-CG2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Cut-off Date: June 1, 1999 Percentage Interest evidenced by
this Certificate: ___%
Closing Date: June 22, 1999 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date
("Initial Pool Balance"): $
First Distribution Date: Trustee and REMIC Administrator:
July 12, 1999 Norwest Bank Minnesota, National
Association
Master Servicer:
GE Capital Loan Services, Inc.
Special Servicer:
Banc One Mortgage Capital
Markets, LLC
Certificate No. [R-I] [R-II] [R-III]-__
A-6-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
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 (B) TO ANY PERSON
WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
EVIDENCES OWNERSHIP OF THE "RESIDUAL INTEREST" IN MULTIPLE "REAL
ESTATE MORTGAGE INVESTMENT CONDUITS" (EACH A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
A-6-2
<PAGE>
CODE. CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE
ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON
BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY,
ON THIS CERTIFICATE.]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY,
ON THIS CERTIFICATE.]
This certifies that __________________ is the registered owner
of the Percentage Interest evidenced by this Certificate (as specified above) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class [R-I] [R-II] [R-III] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of the Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor", which term includes any successor
entity under the Agreement), GE Capital Loan Services, Inc. as master servicer
(the "Master Servicer", which term includes any successor entity under the
Agreement) and Banc One Mortgage Capital Markets, LLC as special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association as trustee and REMIC
administrator (the "Trustee" and "REMIC Administrator", respectively, depending
upon the capacity in which it is acting, each of which terms includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as
A-6-3
<PAGE>
defined below) in such month, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [R-I] [R-II] [R-III] Certificates on the applicable Distribution Date
pursuant to the Agreement. The "Determination Date" in each month, commencing in
July 1999, will be the fourth day of such month or, if such fourth day is not a
Business Day, then the immediately preceding Business Day. All distributions
made under the Agreement on this Certificate will be made by the Trustee by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only
without coupons. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for new Certificates of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of this Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a transfer of this Certificate by the Depositor,
then the Certificate Registrar shall refuse to register such transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator, the
A-6-4
<PAGE>
Trustee, any Fiscal Agent or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective Transferee on which such
Opinion of Counsel is based. If any Transferee of this Certificate does not, in
connection with the subject transfer, deliver to the Certificate Registrar one
of the certifications described in clause (ii) of the preceding sentence or the
Opinion of Counsel described in clause (iii) of the preceding sentence, then
such Transferee shall be deemed to have represented and warranted that all the
certifications set forth in either Exhibit F-2A or Exhibit F-2B attached to the
Agreement are, with respect to the subject transfer, true and correct. Any
Certificateholder desiring to effect a transfer, sale, pledge or other
disposition of this Certificate or any interest herein shall, and does hereby
agree to, indemnify the Depositor, the Underwriters, the Trustee, any Fiscal
Agent, the Master Servicer, the Special Servicer, the REMIC Administrator and
the Certificate Registrar against any liability that may result if such
transfer, sale, pledge or other disposition is not exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall
be made except to a Qualified Institutional Buyer. The Certificate Registrar
shall refuse to register the transfer of this Certificate unless it has received
from the prospective Transferee a certification, substantially in the form
attached as Annex 1 or Annex 2 to Exhibit F-2A to the Agreement, to the effect
that such prospective Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall
be made (A) to any retirement plan or other employee benefit plan or
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that is subject to ERISA or Section 4975 of the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing this Certificate
or any interest herein on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan, if the purchase and holding of this Certificate or such
interest herein by the prospective Transferee would result in a violation of
Section 406 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code. Except in limited
circumstances, the Certificate Registrar shall refuse to register the transfer
of this Certificate unless it has received from the prospective Transferee
either: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) a certification to the effect that the purchase and holding of this
Certificate by such prospective Transferee is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60; or
(iii) a certification of facts and an Opinion of Counsel which otherwise
establish to the reasonable satisfaction of the Trustee that such transfer will
not result in a violation of Section 406 of ERISA or Section 4975 of the Code or
result in the imposition of an excise tax under Section 4975 of the Code. If any
Transferee of this Certificate or any interest herein does not, in connection
with the subject transfer, deliver to the Certificate Registrar a certification
and/or Opinion of Counsel as required by the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that either: (i)
such Transferee is not a Plan and is not directly or indirectly purchasing this
A-6-5
<PAGE>
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) the purchase and holding of this
Certificate or such interest herein by such Transferee is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Sections I and III of Prohibited Transactions Class Exemption
95-60.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by its acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory disposition and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such disposition. Each Person holding or acquiring any Ownership Interest in
this Certificate must be a Permitted Transferee and shall promptly notify the
Trustee and the REMIC Administrator of any change or impending change in its
status as a Permitted Transferee. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of this Certificate
until its receipt of, an affidavit and agreement substantially in the form
attached as Exhibit H-1 to the Agreement (a "Transfer Affidavit and Agreement")
from the proposed Transferee, representing and warranting, among other things,
that such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if a Responsible
Officer of either the Certificate Registrar or Trustee has actual knowledge that
the proposed Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in this Certificate to such proposed Transferee shall be
effected. In connection therewith, the Certificate Registrar shall not register
the transfer of an Ownership Interest in this Certificate to any entity
classified as a partnership under the Code unless at the time of transfer, all
of its beneficial owners are United States Persons.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any other Person to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest herein unless it
provides to the Certificate Registrar a certificate substantially in the form
attached as Exhibit H-2 to the Agreement stating that, among other things, it
has no actual knowledge that such other Person is not a Permitted Transferee.
Each Person holding or acquiring an Ownership Interest in this Certificate, by
purchasing such Ownership Interest herein, agrees to give the Trustee and the
REMIC Administrator written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
If a Person is acquiring this Certificate as a fiduciary or
agent for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the
A-6-6
<PAGE>
effect that, and such other evidence as may be reasonably required by the
Trustee to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the foregoing acknowledgments,
representations, warranties, certifications and/or agreements with respect to
each such account as described in the five preceding paragraphs.
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee and the REMIC Administrator the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates; and (b) an Opinion
of Counsel, in form and substance satisfactory to the Trustee and the REMIC
Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not cause any REMIC Pool to cease to qualify
as a REMIC or be subject to an entity-level tax caused by the Transfer of a
Residual Interest Certificate to a Person that is not a Permitted Transferee, or
cause a Person other than the prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a Residual Interest Certificate to a
Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" and a "Non-United States Person". In addition, if
such Transferee is classified as a partnership under the Code, such Transferee
can only be a "Permitted Transferee" if all of its beneficial owners are United
States Persons.
A "Disqualified Organization" is any of (i) the United States
or a possession thereof, any State or political subdivision thereof or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code and (v) any other Person so
designated by the REMIC Administrator based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Residual Interest Certificate by such
Person may cause the Trust or any Person having an Ownership Interest in any
Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Interest Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able
A-6-7
<PAGE>
to exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of this Certificate, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of this Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent, the Certificate Registrar
and any agent of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, any Fiscal Agent or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Controlling Class Certificateholder, at a price determined as
provided in the Agreement, of all the Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and any Fiscal Agent and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 662/3% of the Voting Rights allocated to all of the affected
A-6-8
<PAGE>
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
A-6-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:
--------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] [R-III] Certificates
referred to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:
----------------------------
Authorized Officer
A-6-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer
or otherwise, in immediately available funds, to _______________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_____________ ) and all applicable statements and notices should be mailed
to _________________________________________________________________.
This information is provided by ___________, the Assignee
named above, or ____________________, as its agent.
A-6-11
<PAGE>
EXHIBIT B-1A
SCHEDULE OF COLUMN MORTGAGE LOANS
B-1A-1
<PAGE>
<TABLE>
<CAPTION>
Property Name Address
------------- -------
<S> <C>
2 Arbor Lake Club Apartments 9361 Fontainbleau Boulevard
3 The Parkview Apartments - FL 10468 NW 8th Street
4 Heron's Cove Apartments 3312 South Semoran Boulevard
5 Horizons North Apartments 665 Ives Dairy Road
6 Herald Center 1293-1311 Broadway
7 Sterling Point Apartments 6600 Dunlap
8 Sandridge Apartments 4025 Burke Road
9 Woodscape Apartments 9707 South Gessner
15 Center At The Plant 8000 Van Nuys Boulevard
17 Cherry Creek Retirement Village 14555 East Hampden Avenue
18 Remington Heights Retirement Community 12606 West Dodge Road
19 Charles River Center 245-259 Hartford Avenue
24 Embarcadero Corporate Center 2465-2483 East Bayshore Road
25 Best Buy Plaza Shopping Center 9250 North Central Expressway
29 Sage Crossing Apartments 3431 Oakdale Drive
34 Ontario Plaza 920-1070 North Mountain Avenue
43 Tower Plaza Retail Center NE Corner of 78th Street & Dodge Street
59 333 Sam Houston Office Building 333 North Sam Houston Parkway
62 Willow Springs Shopping Center 2701-2795 Iris Avenue
63 Villa Shopping Center 2825-2885 28th Street
64 Crystal Gardens Shopping Center 3307 South College Avenue
67 Holiday Inn Express - City Center 226 Aurora Avenue North
78 Campus Hills Shopping Center Churchville Road & Campus Hills Drive
84 929 Pearl Street 919-929 Pearl Street
85 2005 Tenth Street 935-951 Pearl Street & 2005-2019 10th Street
102 Glendale Medical Arts Center 1030 South Glendale Avenue
106 Pickwick Apartments 3580 Pall Mall Drive
107 The Villas of Buena Vista Apartments 3906-3910 Buena Vista Street
108 The Parkview Apartments - TX 4105 McKinney Avenue
109 Madras Apartments 4220 Cole Avenue
110 Alexandria Apartments - TX 4408 Cole Avenue
111 Sandia Park 4428 Cole Avenue
112 4300 Travis Apartments 4300 Travis Street
113 Vista Quarters Condos 4339 Buena Vista Street
114 3131 Armstrong Condominiums 3131 Armstrong Avenue
115 The Essex 4418-4420 Cole Avenue
116 4431 Travis Street Apartments 4431 Travis Street
117 4432 Buena Vista Apartments 4432 Buena Vista Street
118 The Annex Apartments 4226 Cole Avenue
119 4319 Buena Vista Apartments 4319 Buena Vista Street
120 The Chase Apartments 4411 Buena Vista Street
121 Avalon Apartments 4331 Buena Vista Street
122 Point Breeze Apartments 488 Lemont Drive
123 Hidden Oaks Apartments 333 South Mock Road
131 McGehee Park Apartments 3800 Governors Drive
137 The Highlands Apartments 4646 Nolensville Pike
147 Capital Heights Shopping Center 5355 Government Street
149 NationsBank Office Building 6625 Miami Lakes Drive
150 Pecos Trail Office Compound, Phase III 1701 and 1751 Old Pecos Trail
156 Best Western - San Mateo Los Prados Inn 2940 South Norfolk Street
158 1600 Congress Street/343 Forest Avenue 1600 Congress Street/343 Forest Avenue
160 Mustang Crossing Apartments 1818 Mustang Drive
161 Meadow Crossing Apartments 8175 Meadow Road
163 Daley Square 3755 Murphy Canyon Road
170 Mont Michel Apartments 688 Riddle Road
181 135 Raritan Center Parkway 135 Raritan Center Parkway
188 Kirkland Business Center 11807-11846 NE 112th Street & 11809 NE 116th Street
195 Crystal Springs Apartments 8502 North 67th Avenue
196 Chateau Park Apartments 83, 99 and 100 California Avenue
197 Scottsdale Air Park 16039-16059 North 82nd Street
200 Dale Terrace Apartments 182 Dale Drive
202 Virginia Dare Office Building 10470 Foothill Boulevard
205 Kessel Food Market - Flushing 1542 East Pierson Road
206 Kessel Food Market - Grand Blanc 5186 Fenton Road
207 178-188 Middle Street 178-188 Middle Street
208 350 Raritan Center Parkway 350 Raritan Center Parkway
212 Vagabond Apartments 35-38 Kimmig Avenue
214 Mission Plaza 1512 North H Street
222 Comfort Inn - San Jose 2118 The Alameda
224 Sandpiper Apartments 200-240 Croton Avenue
226 Perimeter Plaza Shopping Center 1245 East Spring Street
227 Red Oak Apartments 2104 San Gabriel Street
228 Diplomat Apartments 1911 San Gabriel Street
229 Waterston Apartments 1814 Waterston Avenue
230 Montage Apartments 2812 Rio Grande Street
231 Melroy Apartments 3408 Speedway Boulevard
232 Envoy Apartments 2108 San Gabriel Avenue
236 Glenwood Apartments 9225 West Sam Houston Parkway South
237 Georgian Court/Woodside Apartments 2400 Oneida Street
240 Regency Apartments 370 East 11th Avenue
244 Dunshire Gardens Apartments 7101-7107 Dunshire Way
245 Alpine Gardens Apartments 400-402 Essex Avenue
246 Delvale Apartments 14-22 Court Pleasant
247 The Northwest Medical Plaza Shopping Center 820 F.M. 1960 West
250 Rutherford Place 1601 Rutherford Lane
254 Spring Gardens Apartments 1714 Wirt Road
255 The Admiral Apartments & The Drake Apartments 3025 and 3060 North Meridian Street
256 Heritage Apartments 412-424 Hudson Street
257 Montgomery Village Executive Plaza Phase I 19630-19644 Club House Road
258 Orchard Lake Mini-Storage 4230 Orchard Lake Road
259 Parker Road Retail 6500 North Freeway
260 Smith Shopping Center 4923-5000 West 95th Street
263 Free Street Office Building 22 Free Street
264 Maple Valley Plaza 245 Maple Street
265 Crestview Apartments 62 Treat Street
266 Cedar Lakes Apartments 1900 South Rock Road
267 Rose Garden Apartments 401-407 Passaic Street
269 Edelweiss Apartments 845 U.S. Highway 81 West
270 The Wachler Building 100 South Old Woodward Avenue
273 Diversey & Sheffield Plaza 933-949 West Diversey Parkway
274 The Pinger Building 708 Walnut Street
275 Elden Professional Building 209 Elden Street
276 Orangetree Apartments 4220 East Almeria Road & 1707, 1713 and 1717 North 42nd Street
277 Silver Cliff Apartments 3375 McHenry Avenue
278 Granada Plaza 362 Granada Boulevard
279 Summitwood Village Apartments 200, 254, 261, 276, 277, 285 and 290 Sam's Road
281 All American Mini Storage 1777 West 68th Avenue
282 201 Commonwealth Court 201 Commonwealth Court
283 Olde Oaks Apartments 140 Lakeview Drive
284 Bouganvillas Apartments 1500-1650 NW 4th Avenue
285 Martin Mobile Home Park 4055 South Avenue
286 Ellendale Place Apartments 2659 Ellendale Place
287 Kessel Food Market - Saginaw 3430 State Street
288 Talbot Center 1100 Commerce Drive
290 Strawberry Hill Apartments 1500 Strawberry Road
291 McGeordan Apartments 247 North Main Street
292 Camel Toe Plaza Shopping Center 900 Camel Drive
293 Washington Park Offices 3700 Russell Street
294 Denway Circle Apartments 544 Denway Circle
295 Oxford Village Apartments 2911-2951 Seymour Lake Road
296 Space Saver #8 Self-Storage Facility 6333 South Loop East
297 Food City Retail Center 420 East Southen Avenue & 1119 South Mesa Drive
298 Meadowood I Apartments 5332 Buttercup Lane
299 Windy Hill Apartments 120, 130, 140, 160 and 162 Chalfont Drive
300 Northgate Plaza 219-225 and 247-293 Academy Avenue
302 Ogden Apartments 1274 Ogden Street & 1010 East 13th Avenue
303 Oak Lawn Square 5701-5721 West 95th Street
304 Flat Iron Building 20 Battery Park Avenue
305 Baymar Apartments 94 Gaylord Street
306 Texas City Medical Office Building 6504 and 6518 Memorial Drive
307 Hollyvale Apartments 423 and 427 Hollyvale Drive
308 Grandin Village Apartments 1720 Grandin Road
309 Riverview Estates Mobile Home Park 98 Teynor Estates
310 Tree Top Apartments 4207 Bowser Avenue
311 871 Islington Street 871 Islington Street
312 Westwood Apartments 1-40 Westwood Drive
313 Territorial Village 2460 Locust Drive
314 Telshor Tower Plaza 755 Telshor Boulevard
315 Congress Building 3525-35 Broadway
316 Continental House Apartments 5845 North Mesa
317 Affordable Self Storage 1239 Teasley Lane & 1029 Shady Oaks & 309 and 518 Smith Street
318 Iroquois Apartments 946 SW 4th Street
319 Bay Palm Apartments 2185 NE 123 Street
320 969 & 971 Amsterdam Avenue 969 & 971 Amsterdam Avenue
321 59-15 55th Street 59-15 55th Street
322 Chesterfield/Eula Apartments 1216 Chesterfield Avenue
323 Carillon Retail Center 9200 North Lamar Boulevard
324 Pine Street Apartments & Blossom Street Apartments 208 and 210 Pine Street & 18-20 and 22-24 Blossom Street
325 Penn State Office Building 7330 East Earll Drive
326 Autumn Run Apartments 505-515 Surrey Avenue
327 Pullman Park Apartments 406 East Elm Street
328 Spanish Oaks Apartments 407 East 45th Street
329 Ballenger Manor Apartments 809 South Ballenger Road
330 Allen Avenue Apartments 53-57 Allen Avenue
331 Skyline Mall 380 Daniel Webster Highway
332 James Road Medical Center 407 James Road
333 Rebecca Apartments 9707 Timberside Drive
334 The Homestead Apartments 809-811 East Armour Boulevard
335 Corona Avenue Apartments 110-50 and 110-52 Corona Avenue
336 Sandstone Apartments 4945 Capitol Avenue
337 Lynn Villa Apartments 1310 School Road
338 Savannah Apartments 1606 Avenue N
339 Vienna Terrace Apartments 150 South Main Street
340 Alexandria Apartments - CO 1465 Elm Street
341 Boynton Vista Apartments 419 Circle Drive & 420 NE 17th Avenue
342 Navarro Crossing Apartments 4115 West Highway 31
343 Kordis Apartments 5642 Charles Street & 5647 James Street
<CAPTION>
Property Name City County State
------------- ---- ------ -----
<S> <C> <C> <C>
2 Arbor Lake Club Apartments Miami Dade FL
3 The Parkview Apartments - FL Pembroke Pines Broward FL
4 Heron's Cove Apartments Orlando Orange FL
5 Horizons North Apartments North Miami Dade FL
6 Herald Center New York New York NY
7 Sterling Point Apartments Houston Harris TX
8 Sandridge Apartments Pasadena Harris TX
9 Woodscape Apartments Houston Harris TX
15 Center At The Plant Van Nuys Los Angeles CA
17 Cherry Creek Retirement Village Aurora Arapahoe CO
18 Remington Heights Retirement Community Omaha Douglas NE
19 Charles River Center Bellingham Norfolk MA
24 Embarcadero Corporate Center Palo Alto Santa Clara CA
25 Best Buy Plaza Shopping Center Dallas Dallas TX
29 Sage Crossing Apartments San Antonio Bexar TX
34 Ontario Plaza Ontario San Bernardino CA
43 Tower Plaza Retail Center Omaha Douglas NE
59 333 Sam Houston Office Building Houston Harris TX
62 Willow Springs Shopping Center Boulder Boulder CO
63 Villa Shopping Center Boulder Boulder CO
64 Crystal Gardens Shopping Center Ft. Collins Larimer CO
67 Holiday Inn Express - City Center Seattle King WA
78 Campus Hills Shopping Center Churchville Hartford MD
84 929 Pearl Street Boulder Boulder CO
85 2005 Tenth Street Boulder Boulder CO
102 Glendale Medical Arts Center Glendale Los Angeles CA
106 Pickwick Apartments Jacksonville Duval FL
107 The Villas of Buena Vista Apartments Dallas Dallas TX
108 The Parkview Apartments - TX Dallas Dallas TX
109 Madras Apartments Dallas Dallas TX
110 Alexandria Apartments - TX Dallas Dallas TX
111 Sandia Park Dallas Dallas TX
112 4300 Travis Apartments Dallas Dallas TX
113 Vista Quarters Condos Dallas Dallas TX
114 3131 Armstrong Condominiums Dallas Dallas TX
115 The Essex Dallas Dallas TX
116 4431 Travis Street Apartments Dallas Dallas TX
117 4432 Buena Vista Apartments Dallas Dallas TX
118 The Annex Apartments Dallas Dallas TX
119 4319 Buena Vista Apartments Dallas Dallas TX
120 The Chase Apartments Dallas Dallas TX
121 Avalon Apartments Dallas Dallas TX
122 Point Breeze Apartments Nashville Davidson TN
123 Hidden Oaks Apartments Albany Dougherty GA
131 McGehee Park Apartments Montgomery Montgomery AL
137 The Highlands Apartments Nashville Davidson TN
147 Capital Heights Shopping Center Baton Rouge East Baton Rouge LA
149 NationsBank Office Building Miami Lakes Miami-Dade FL
150 Pecos Trail Office Compound, Phase III Santa Fe Santa Fe NM
156 Best Western - San Mateo Los Prados Inn San Mateo San Mateo CA
158 1600 Congress Street/343 Forest Avenue Portland Cumberland ME
160 Mustang Crossing Apartments Richmond Fort Bend TX
161 Meadow Crossing Apartments Dallas Dallas TX
163 Daley Square San Diego San Diego CA
170 Mont Michel Apartments Cincinnati Hamilton OH
181 135 Raritan Center Parkway Edison Middlesex NJ
188 Kirkland Business Center Kirkland King WA
195 Crystal Springs Apartments Glendale Maricopa AZ
196 Chateau Park Apartments St. Paul Ramsey MN
197 Scottsdale Air Park Scottsdale Maricopa AZ
200 Dale Terrace Apartments Kent Portage OH
202 Virginia Dare Office Building Rancho Cucamonga San Bernardino CA
205 Kessel Food Market - Flushing Flushing Genesee MI
206 Kessel Food Market - Grand Blanc Grand Blanc Genesee MI
207 178-188 Middle Street Portland Cumberland ME
208 350 Raritan Center Parkway Edison Middlesex NJ
212 Vagabond Apartments Lodi Bergen NJ
214 Mission Plaza Lompoc Santa Barbara CA
222 Comfort Inn - San Jose San Jose Santa Clara CA
224 Sandpiper Apartments Lantana Palm Beach FL
226 Perimeter Plaza Shopping Center Cookeville Putnam TN
227 Red Oak Apartments Austin Travis TX
228 Diplomat Apartments Austin Travis TX
229 Waterston Apartments Austin Travis TX
230 Montage Apartments Austin Travis TX
231 Melroy Apartments Austin Travis TX
232 Envoy Apartments Austin Travis TX
236 Glenwood Apartments Houston Harris TX
237 Georgian Court/Woodside Apartments Utica Oneida NY
240 Regency Apartments Denver Denver CO
244 Dunshire Gardens Apartments Dundalk Baltimore MD
245 Alpine Gardens Apartments Essex Baltimore MD
246 Delvale Apartments Dundalk Baltimore MD
247 The Northwest Medical Plaza Shopping Center Houston Harris TX
250 Rutherford Place Austin Travis TX
254 Spring Gardens Apartments Houston Harris TX
255 The Admiral Apartments & The Drake Apartments Indianapolis Marion IN
256 Heritage Apartments Hackensack Bergen NJ
257 Montgomery Village Executive Plaza Phase I Gaithersburg Montgomery MD
258 Orchard Lake Mini-Storage Orchard Lake Oakland MI
259 Parker Road Retail Houston Harris TX
260 Smith Shopping Center Oak Lawn Cook IL
263 Free Street Office Building Portland Cumberland ME
264 Maple Valley Plaza Manchester Hillsborough NH
265 Crestview Apartments West Haven New Haven CT
266 Cedar Lakes Apartments Wichita Sedgwick KS
267 Rose Garden Apartments Hackensack Bergen NJ
269 Edelweiss Apartments New Braunfels Comal TX
270 The Wachler Building Birmingham Oakland MI
273 Diversey & Sheffield Plaza Chicago Cook IL
274 The Pinger Building Cincinnati Hamilton OH
275 Elden Professional Building Herndon Fairfax VA
276 Orangetree Apartments Phoenix Maricopa AZ
277 Silver Cliff Apartments Cincinnati Hamilton OH
278 Granada Plaza Ormond Beach Volusia FL
279 Summitwood Village Apartments Meriden New Haven CT
281 All American Mini Storage Denver Adams CO
282 201 Commonwealth Court Cary Wake NC
283 Olde Oaks Apartments Clute Brazoria TX
284 Bouganvillas Apartments Boca Raton Palm Beach FL
285 Martin Mobile Home Park Boardman Mahoning OH
286 Ellendale Place Apartments Los Angeles Los Angeles CA
287 Kessel Food Market - Saginaw Saginaw Saginaw MI
288 Talbot Center Peachtree City Fayette GA
290 Strawberry Hill Apartments Pasadena Harris TX
291 McGeordan Apartments Wellsville Allegany NY
292 Camel Toe Plaza Shopping Center Gillette Campbell WY
293 Washington Park Offices Missoula Missoula MT
294 Denway Circle Apartments Kalamazoo Kalamazoo MI
295 Oxford Village Apartments Oxford Township Oakland MI
296 Space Saver #8 Self-Storage Facility Houston Harris TX
297 Food City Retail Center Mesa Maricopa AZ
298 Meadowood I Apartments Indianapolis Marion IN
299 Windy Hill Apartments Athens Clarke GA
300 Northgate Plaza Sanger Fresno CA
302 Ogden Apartments Denver Denver CO
303 Oak Lawn Square Oak Lawn Cook IL
304 Flat Iron Building Asheville Buncombe NC
305 Baymar Apartments Bristol Hartford CT
306 Texas City Medical Office Building Texas City Galveston TX
307 Hollyvale Apartments Houston Harris TX
308 Grandin Village Apartments Roanoke Roanoke VA
309 Riverview Estates Mobile Home Park Bucyrus Crawford OH
310 Tree Top Apartments Dallas Dallas TX
311 871 Islington Street Portsmouth Rockingham NH
312 Westwood Apartments Plattsburgh Clinton NY
313 Territorial Village Las Cruces Dona Ana NM
314 Telshor Tower Plaza Las Cruces Dona Ana NM
315 Congress Building Kansas City Jackson MO
316 Continental House Apartments El Paso El Paso TX
317 Affordable Self Storage Denton Denton TX
318 Iroquois Apartments Miami Dade FL
319 Bay Palm Apartments Miami Dade FL
320 969 & 971 Amsterdam Avenue New York New York NY
321 59-15 55th Street Maspeth Queens NY
322 Chesterfield/Eula Apartments Lancaster Lancaster SC
323 Carillon Retail Center Austin Travis TX
324 Pine Street Apartments & Blossom Street Apartments Nashua Hillsborough NH
325 Penn State Office Building Scottsdale Maricopa AZ
326 Autumn Run Apartments Winslow Camden NJ
327 Pullman Park Apartments Gatesville Coryell TX
328 Spanish Oaks Apartments Austin Travis TX
329 Ballenger Manor Apartments Flint Genesee MI
330 Allen Avenue Apartments Portland Cumberland ME
331 Skyline Mall Merrimack Hillsborough NH
332 James Road Medical Center Columbus Franklin OH
333 Rebecca Apartments Houston Harris TX
334 The Homestead Apartments Kansas City Jackson MO
335 Corona Avenue Apartments Corona Queens NY
336 Sandstone Apartments Dallas Dallas TX
337 Lynn Villa Apartments Carrollton Dallas TX
338 Savannah Apartments South Houston Harris TX
339 Vienna Terrace Apartments Euless Tarrant TX
340 Alexandria Apartments - CO Denver Denver CO
341 Boynton Vista Apartments Boynton Beach Palm Beach FL
342 Navarro Crossing Apartments Corsicana Navarro TX
343 Kordis Apartments New Port Richey Pasco FL
<CAPTION>
Property Name Zip Code Originator Original Loan Balance Cut-Off Balance
------------- -------- ---------- --------------------- ---------------
<S> <C> <C> <C> <C>
2 Arbor Lake Club Apartments 33172 Column 30,100,000 30,100,000
3 The Parkview Apartments - FL 33026 Column 9,550,000 9,550,000
4 Heron's Cove Apartments 32822 Column 9,500,000 9,500,000
5 Horizons North Apartments 33179 Column 8,850,000 8,850,000
6 Herald Center 10001 Column 50,000,000 49,975,508
7 Sterling Point Apartments 77081 Column 20,817,788 20,751,731
8 Sandridge Apartments 77504 Column 15,147,959 15,099,893
9 Woodscape Apartments 77071 Column 10,144,927 10,112,736
15 Center At The Plant 91402 Column 32,000,000 31,961,668
17 Cherry Creek Retirement Village 80014 Column 16,750,000 16,729,883
18 Remington Heights Retirement Community 68154 Column 7,500,000 7,490,992
19 Charles River Center 02019 Column 24,000,000 24,000,000
24 Embarcadero Corporate Center 94303 Column 22,500,000 22,500,000
25 Best Buy Plaza Shopping Center 75231 Column 21,300,000 21,288,630
29 Sage Crossing Apartments 78229 Column 15,250,000 15,230,469
34 Ontario Plaza 91762 Column 13,600,000 13,558,185
43 Tower Plaza Retail Center 68114 Column 11,100,000 11,100,000
59 333 Sam Houston Office Building 77060 Column 9,400,000 9,400,000
62 Willow Springs Shopping Center 80304 Column 5,000,000 4,995,713
63 Villa Shopping Center 80301 Column 2,600,000 2,597,771
64 Crystal Gardens Shopping Center 80525 Column 1,550,000 1,548,671
67 Holiday Inn Express - City Center 98109 Column 9,000,000 8,993,064
78 Campus Hills Shopping Center 21028 Column 8,100,000 8,100,000
84 929 Pearl Street 80302 Column 4,250,000 4,247,835
85 2005 Tenth Street 80302 Column 3,400,000 3,398,268
102 Glendale Medical Arts Center 91205 Column 6,000,000 5,997,057
106 Pickwick Apartments 32257 Column 5,400,000 5,389,808
107 The Villas of Buena Vista Apartments 75204 Column 770,576 770,576
108 The Parkview Apartments - TX 75204 Column 545,300 545,300
109 Madras Apartments 75205 Column 528,900 528,900
110 Alexandria Apartments - TX 75205 Column 506,300 506,300
111 Sandia Park 75205 Column 459,000 459,000
112 4300 Travis Apartments 75205 Column 428,000 428,000
113 Vista Quarters Condos 75205 Column 373,500 373,500
114 3131 Armstrong Condominiums 75205 Column 365,200 365,200
115 The Essex 75205 Column 350,000 350,000
116 4431 Travis Street Apartments 75205 Column 208,000 208,000
117 4432 Buena Vista Apartments 75205 Column 201,171 201,171
118 The Annex Apartments 75205 Column 195,050 195,050
119 4319 Buena Vista Apartments 75205 Column 141,100 141,100
120 The Chase Apartments 75205 Column 121,049 121,049
121 Avalon Apartments 75205 Column 106,854 106,854
122 Point Breeze Apartments 37216 Column 5,300,000 5,297,180
123 Hidden Oaks Apartments 31705 Column 5,300,000 5,296,933
131 McGehee Park Apartments 36111 Column 5,000,000 4,997,349
137 The Highlands Apartments 37211 Column 4,700,000 4,697,499
147 Capital Heights Shopping Center 70806 Column 3,900,000 3,900,000
149 NationsBank Office Building 33014 Column 3,800,000 3,800,000
150 Pecos Trail Office Compound, Phase III 87505 Column 3,800,000 3,798,136
156 Best Western - San Mateo Los Prados Inn 94403 Column 3,500,000 3,497,235
158 1600 Congress Street/343 Forest Avenue Various Column 3,500,000 3,493,209
160 Mustang Crossing Apartments 77469 Column 3,400,000 3,398,262
161 Meadow Crossing Apartments 75231 Column 3,400,000 3,397,009
163 Daley Square 92123 Column 3,300,000 3,300,000
170 Mont Michel Apartments 45220 Column 3,200,000 3,196,067
181 135 Raritan Center Parkway 08837 Column 2,890,000 2,890,000
188 Kirkland Business Center 98033 Column 2,700,000 2,694,862
195 Crystal Springs Apartments 85302 Column 2,550,000 2,547,757
196 Chateau Park Apartments 55117 Column 2,550,000 2,546,642
197 Scottsdale Air Park 85260 Column 2,525,000 2,521,936
200 Dale Terrace Apartments 44240 Column 2,475,000 2,470,616
202 Virginia Dare Office Building 91730 Column 2,450,000 2,450,000
205 Kessel Food Market - Flushing 48433 Column 1,324,000 1,320,086
206 Kessel Food Market - Grand Blanc 48430 Column 1,101,000 1,097,745
207 178-188 Middle Street 04101 Column 2,400,000 2,400,000
208 350 Raritan Center Parkway 08837 Column 2,400,000 2,400,000
212 Vagabond Apartments 07644 Column 2,325,000 2,320,687
214 Mission Plaza 93436 Column 2,250,000 2,247,326
222 Comfort Inn - San Jose 95126 Column 2,100,000 2,100,000
224 Sandpiper Apartments 33462 Column 2,000,000 1,998,932
226 Perimeter Plaza Shopping Center 38501 Column 2,000,000 1,995,975
227 Red Oak Apartments 78705 Column 675,000 673,100
228 Diplomat Apartments 78705 Column 385,000 383,916
229 Waterston Apartments 78703 Column 280,000 279,212
230 Montage Apartments 78705 Column 264,000 263,257
231 Melroy Apartments 78705 Column 215,000 214,395
232 Envoy Apartments 78705 Column 175,000 174,507
236 Glenwood Apartments 77099 Column 1,880,000 1,880,000
237 Georgian Court/Woodside Apartments 13501 Column 1,844,000 1,844,000
240 Regency Apartments 80203 Column 1,830,000 1,830,000
244 Dunshire Gardens Apartments 21222 Column 1,060,000 1,057,999
245 Alpine Gardens Apartments 21221 Column 400,000 399,245
246 Delvale Apartments 21222 Column 340,000 339,358
247 The Northwest Medical Plaza Shopping Center 77090 Column 1,800,000 1,794,881
250 Rutherford Place 78754 Column 1,725,000 1,724,217
254 Spring Gardens Apartments 77055 Column 1,600,000 1,600,000
255 The Admiral Apartments & The Drake Apartments 46208 Column 1,550,000 1,548,349
256 Heritage Apartments 07601 Column 1,525,000 1,522,171
257 Montgomery Village Executive Plaza Phase I 20886 Column 1,530,000 1,521,952
258 Orchard Lake Mini-Storage 48323 Column 1,517,000 1,515,822
259 Parker Road Retail 77076 Column 1,500,000 1,498,771
260 Smith Shopping Center 60453 Column 1,480,000 1,473,931
263 Free Street Office Building 04101 Column 1,450,000 1,448,871
264 Maple Valley Plaza 03103 Column 1,450,000 1,445,217
265 Crestview Apartments 06516 Column 1,450,000 1,431,223
266 Cedar Lakes Apartments 67207 Column 1,435,000 1,427,185
267 Rose Garden Apartments 07601 Column 1,425,000 1,422,357
269 Edelweiss Apartments 78130 Column 1,400,000 1,392,010
270 The Wachler Building 48009 Column 1,400,000 1,382,555
273 Diversey & Sheffield Plaza 60614 Column 1,300,000 1,298,909
274 The Pinger Building 45202 Column 1,300,000 1,291,517
275 Elden Professional Building 22070 Column 1,275,000 1,274,017
276 Orangetree Apartments 85008 Column 1,280,000 1,273,404
277 Silver Cliff Apartments 45225 Column 1,270,000 1,268,921
278 Granada Plaza 32174 Column 1,250,000 1,249,046
279 Summitwood Village Apartments 06451 Column 1,240,000 1,235,453
281 All American Mini Storage 80221 Column 1,160,000 1,159,047
282 201 Commonwealth Court 27511 Column 1,140,000 1,140,000
283 Olde Oaks Apartments 77531 Column 1,100,000 1,097,943
284 Bouganvillas Apartments 33432 Column 1,080,000 1,076,073
285 Martin Mobile Home Park 44512 Column 1,070,000 1,070,000
286 Ellendale Place Apartments 90007 Column 1,060,000 1,060,000
287 Kessel Food Market - Saginaw 48602 Column 1,047,000 1,046,088
288 Talbot Center 30269 Column 1,037,000 1,037,000
290 Strawberry Hill Apartments 77502 Column 1,000,000 1,000,000
291 McGeordan Apartments 14895 Column 1,000,000 997,334
292 Camel Toe Plaza Shopping Center 82176 Column 975,000 974,276
293 Washington Park Offices 59801 Column 975,000 970,603
294 Denway Circle Apartments 49008 Column 970,000 968,844
295 Oxford Village Apartments 48371 Column 950,000 948,938
296 Space Saver #8 Self-Storage Facility 77087 Column 950,000 948,390
297 Food City Retail Center 85204 Column 940,000 937,462
298 Meadowood I Apartments 46224 Column 935,000 935,000
299 Windy Hill Apartments 30603 Column 930,000 930,000
300 Northgate Plaza 93657 Column 900,000 900,000
302 Ogden Apartments 80218 Column 900,000 900,000
303 Oak Lawn Square 60453 Column 900,000 899,259
304 Flat Iron Building 28801 Column 900,000 898,937
305 Baymar Apartments 06010 Column 900,000 888,390
306 Texas City Medical Office Building 75591 Column 550,000 548,288
307 Hollyvale Apartments 77060 Column 335,000 333,950
308 Grandin Village Apartments 24015 Column 880,000 880,000
309 Riverview Estates Mobile Home Park 44820 Column 850,000 847,676
310 Tree Top Apartments 75219 Column 800,000 799,362
311 871 Islington Street 03801 Column 800,000 797,794
312 Westwood Apartments 12901 Column 800,000 796,059
313 Territorial Village 88001 Column 510,000 506,800
314 Telshor Tower Plaza 88001 Column 250,000 248,431
315 Congress Building 26752 Column 715,000 713,746
316 Continental House Apartments 79912 Column 690,000 688,149
317 Affordable Self Storage 76205 Column 675,000 675,000
318 Iroquois Apartments 33130 Column 668,000 667,494
319 Bay Palm Apartments 33181 Column 654,000 653,700
320 969 & 971 Amsterdam Avenue 10025 Column 650,000 649,551
321 59-15 55th Street 11378 Column 650,000 648,399
322 Chesterfield/Eula Apartments 29720 Column 640,000 635,485
323 Carillon Retail Center 75591 Column 635,000 634,523
324 Pine Street Apartments & Blossom Street Apartments 03060 Column 625,000 625,000
325 Penn State Office Building 85251 Column 600,000 599,764
326 Autumn Run Apartments 08009 Column 580,000 576,541
327 Pullman Park Apartments 76528 Column 575,000 571,924
328 Spanish Oaks Apartments 78751 Column 560,000 556,884
329 Ballenger Manor Apartments 48532 Column 552,000 551,542
330 Allen Avenue Apartments 04103 Column 535,000 532,745
331 Skyline Mall 03054 Column 535,000 531,407
332 James Road Medical Center 43215 Column 520,000 520,000
333 Rebecca Apartments 77025 Column 525,000 516,867
334 The Homestead Apartments 64109 Column 500,000 500,000
335 Corona Avenue Apartments 11368 Column 498,000 497,360
336 Sandstone Apartments 75206 Column 450,000 447,445
337 Lynn Villa Apartments 75006 Column 415,000 414,286
338 Savannah Apartments 77587 Column 395,000 394,304
339 Vienna Terrace Apartments 76040 Column 375,000 371,285
340 Alexandria Apartments - CO 80220 Column 315,000 314,444
341 Boynton Vista Apartments 33435 Column 300,000 298,486
342 Navarro Crossing Apartments 75110 Column 275,000 272,574
343 Kordis Apartments 34652 Column 250,000 248,667
<CAPTION>
Property Name Monthly Payment Mortgage Rate Original Term
------------- --------------- ------------- -------------
<S> <C> <C> <C>
2 Arbor Lake Club Apartments 218,350.36 7.880% 120
3 The Parkview Apartments - FL 69,277.27 7.880% 120
4 Heron's Cove Apartments 68,914.56 7.880% 120
5 Horizons North Apartments 64,199.36 7.880% 120
6 Herald Center 358,344.34 7.754% 120
7 Sterling Point Apartments 141,590.65 7.220% 120
8 Sandridge Apartments 103,027.73 7.220% 120
9 Woodscape Apartments 68,999.98 7.220% 120
15 Center At The Plant 229,473.09 7.760% 120
17 Cherry Creek Retirement Village 119,999.05 7.750% 120
18 Remington Heights Retirement Community 53,730.92 7.750% 120
19 Charles River Center 173,933.37 7.870% 120
24 Embarcadero Corporate Center 159,176.21 7.620% 120
25 Best Buy Plaza Shopping Center 148,932.69 7.500% 120
29 Sage Crossing Apartments 106,630.21 7.500% 84
34 Ontario Plaza 93,978.17 7.380% 120
43 Tower Plaza Retail Center 81,602.68 8.020% 120
59 333 Sam Houston Office Building 67,732.91 7.810% 120
62 Willow Springs Shopping Center 38,128.25 7.860% 120
63 Villa Shopping Center 19,826.69 7.860% 120
64 Crystal Gardens Shopping Center 11,819.76 7.860% 120
67 Holiday Inn Express - City Center 71,261.48 8.300% 120
78 Campus Hills Shopping Center 59,265.62 7.970% 120
84 929 Pearl Street 30,125.10 7.640% 120
85 2005 Tenth Street 24,100.08 7.640% 120
102 Glendale Medical Arts Center 42,984.73 7.750% 120
106 Pickwick Apartments 37,278.06 7.370% 120
107 The Villas of Buena Vista Apartments 5,891.39 7.890% 120
108 The Parkview Apartments - TX 4,169.06 7.890% 120
109 Madras Apartments 4,043.67 7.890% 120
110 Alexandria Apartments - TX 3,870.88 7.890% 120
111 Sandia Park 3,509.26 7.890% 120
112 4300 Travis Apartments 3,272.25 7.890% 120
113 Vista Quarters Condos 2,855.57 7.890% 120
114 3131 Armstrong Condominiums 2,792.11 7.890% 120
115 The Essex 2,675.90 7.890% 120
116 4431 Travis Street Apartments 1,590.25 7.890% 120
117 4432 Buena Vista Apartments 1,538.04 7.890% 120
118 The Annex Apartments 1,491.24 7.890% 120
119 4319 Buena Vista Apartments 1,078.77 7.890% 120
120 The Chase Apartments 925.47 7.890% 120
121 Avalon Apartments 816.95 7.890% 120
122 Point Breeze Apartments 37,094.67 7.510% 120
123 Hidden Oaks Apartments 36,155.34 7.250% 120
131 McGehee Park Apartments 35,029.23 7.520% 120
137 The Highlands Apartments 32,895.27 7.510% 120
147 Capital Heights Shopping Center 27,162.62 7.460% 120
149 NationsBank Office Building 27,777.16 7.960% 120
150 Pecos Trail Office Compound, Phase III 27,223.67 7.750% 120
156 Best Western - San Mateo Los Prados Inn 27,478.91 8.200% 84
158 1600 Congress Street/343 Forest Avenue 26,689.77 7.860% 120
160 Mustang Crossing Apartments 24,076.68 7.630% 120
161 Meadow Crossing Apartments 25,681.18 7.750% 120
163 Daley Square 24,375.46 8.070% 120
170 Mont Michel Apartments 25,288.73 7.750% 120
181 135 Raritan Center Parkway 21,225.95 8.010% 120
188 Kirkland Business Center 20,767.54 7.960% 120
195 Crystal Springs Apartments 19,260.88 7.750% 120
196 Chateau Park Apartments 17,638.29 7.390% 120
197 Scottsdale Air Park 18,019.66 7.710% 120
200 Dale Terrace Apartments 17,475.35 7.600% 120
202 Virginia Dare Office Building 17,840.79 7.920% 120
205 Kessel Food Market - Flushing 9,879.17 7.610% 120
206 Kessel Food Market - Grand Blanc 8,215.24 7.610% 120
207 178-188 Middle Street 19,051.28 8.330% 120
208 350 Raritan Center Parkway 18,539.49 8.010% 120
212 Vagabond Apartments 18,083.56 8.090% 300
214 Mission Plaza 16,181.51 7.790% 180
222 Comfort Inn - San Jose 16,909.77 8.500% 120
224 Sandpiper Apartments 13,984.29 7.500% 120
226 Perimeter Plaza Shopping Center 15,001.69 7.670% 120
227 Red Oak Apartments 5,142.87 7.850% 120
228 Diplomat Apartments 2,933.34 7.850% 120
229 Waterston Apartments 2,133.34 7.850% 120
230 Montage Apartments 2,011.43 7.850% 120
231 Melroy Apartments 1,638.10 7.850% 120
232 Envoy Apartments 1,333.34 7.850% 120
236 Glenwood Apartments 13,520.55 7.790% 120
237 Georgian Court/Woodside Apartments 14,637.73 8.330% 120
240 Regency Apartments 14,184.90 8.050% 120
244 Dunshire Gardens Apartments 8,181.25 8.000% 120
245 Alpine Gardens Apartments 3,087.26 8.000% 120
246 Delvale Apartments 2,624.18 8.000% 120
247 The Northwest Medical Plaza Shopping Center 13,655.06 7.800% 120
250 Rutherford Place 12,621.38 7.970% 120
254 Spring Gardens Apartments 12,190.50 7.850% 120
255 The Admiral Apartments & The Drake Apartments 11,590.19 8.200% 120
256 Heritage Apartments 11,861.26 8.090% 300
257 Montgomery Village Executive Plaza Phase I 15,156.33 8.600% 180
258 Orchard Lake Mini-Storage 11,981.07 8.270% 120
259 Parker Road Retail 11,626.97 8.050% 120
260 Smith Shopping Center 10,348.37 7.500% 120
263 Free Street Office Building 11,442.22 8.260% 120
264 Maple Valley Plaza 11,903.75 7.750% 120
265 Crestview Apartments 11,416.56 7.200% 240
266 Cedar Lakes Apartments 9,547.09 7.000% 120
267 Rose Garden Apartments 11,083.48 8.090% 300
269 Edelweiss Apartments 10,209.67 7.350% 120
270 The Wachler Building 11,278.30 7.500% 120
273 Diversey & Sheffield Plaza 9,990.59 7.950% 120
274 The Pinger Building 9,606.89 7.500% 120
275 Elden Professional Building 10,095.38 8.300% 120
276 Orangetree Apartments 8,731.86 7.250% 120
277 Silver Cliff Apartments 9,718.08 7.900% 120
278 Granada Plaza 9,930.92 8.340% 120
279 Summitwood Village Apartments 8,543.25 7.350% 120
281 All American Mini Storage 8,983.83 8.040% 120
282 201 Commonwealth Court 8,813.81 8.020% 120
283 Olde Oaks Apartments 8,526.45 8.050% 120
284 Bouganvillas Apartments 7,470.34 7.390% 120
285 Martin Mobile Home Park 8,379.29 8.170% 120
286 Ellendale Place Apartments 8,478.34 8.420% 300
287 Kessel Food Market - Saginaw 7,935.81 7.790% 120
288 Talbot Center 8,084.13 8.650% 120
290 Strawberry Hill Apartments 7,904.56 8.280% 120
291 McGeordan Apartments 7,791.17 8.110% 120
292 Camel Toe Plaza Shopping Center 7,818.14 8.450% 120
293 Washington Park Offices 8,307.64 8.250% 240
294 Denway Circle Apartments 6,969.32 7.780% 120
295 Oxford Village Apartments 6,984.01 8.020% 120
296 Space Saver #8 Self-Storage Facility 7,675.28 8.540% 120
297 Food City Retail Center 7,286.24 8.050% 120
298 Meadowood I Apartments 6,841.15 7.970% 120
299 Windy Hill Apartments 7,457.30 8.450% 120
300 Northgate Plaza 7,478.95 8.880% 120
302 Ogden Apartments 7,048.00 8.170% 120
303 Oak Lawn Square 6,964.24 8.030% 120
304 Flat Iron Building 8,277.83 9.310% 240
305 Baymar Apartments 7,102.48 7.230% 240
306 Texas City Medical Office Building 4,655.34 8.160% 120
307 Hollyvale Apartments 2,825.05 8.110% 120
308 Grandin Village Apartments 6,938.36 8.250% 120
309 Riverview Estates Mobile Home Park 6,554.81 7.990% 120
310 Tree Top Apartments 6,259.56 8.160% 120
311 871 Islington Street 6,148.06 7.950% 120
312 Westwood Apartments 6,518.32 7.650% 120
313 Territorial Village 3,842.14 7.720% 180
314 Telshor Tower Plaza 1,883.40 7.720% 180
315 Congress Building 5,694.87 8.370% 120
316 Continental House Apartments 5,362.15 8.080% 120
317 Affordable Self Storage 5,439.83 8.510% 120
318 Iroquois Apartments 5,320.52 8.370% 120
319 Bay Palm Apartments 4,771.49 7.940% 120
320 969 & 971 Amsterdam Avenue 5,335.10 8.730% 120
321 59-15 55th Street 5,225.22 8.480% 120
322 Chesterfield/Eula Apartments 5,265.92 7.780% 120
323 Carillon Retail Center 5,070.47 8.400% 120
324 Pine Street Apartments & Blossom Street Apartments 5,329.33 8.260% 120
325 Penn State Office Building 4,549.85 8.350% 120
326 Autumn Run Apartments 4,476.53 8.000% 120
327 Pullman Park Apartments 4,335.59 7.730% 120
328 Spanish Oaks Apartments 4,138.35 7.500% 120
329 Ballenger Manor Apartments 4,260.43 8.000% 120
330 Allen Avenue Apartments 4,150.50 8.060% 120
331 Skyline Mall 4,535.07 8.180% 120
332 James Road Medical Center 4,310.53 8.850% 120
333 Rebecca Apartments 4,556.07 8.500% 240
334 The Homestead Apartments 4,046.37 8.560% 120
335 Corona Avenue Apartments 4,426.33 8.830% 240
336 Sandstone Apartments 3,290.42 7.380% 120
337 Lynn Villa Apartments 3,333.31 8.470% 120
338 Savannah Apartments 3,140.82 8.350% 120
339 Vienna Terrace Apartments 3,136.65 8.000% 120
340 Alexandria Apartments - CO 2,502.59 8.340% 120
341 Boynton Vista Apartments 2,329.38 8.070% 120
342 Navarro Crossing Apartments 2,232.23 7.600% 120
343 Kordis Apartments 1,888.32 7.750% 120
<CAPTION>
Property Name Remaining Term Maturity Date Original Amortization
------------- -------------- ------------- ---------------------
<S> <C> <C> <C>
2 Arbor Lake Club Apartments 120 06/01/09 360
3 The Parkview Apartments - FL 120 06/01/09 360
4 Heron's Cove Apartments 120 06/01/09 360
5 Horizons North Apartments 120 06/01/09 360
6 Herald Center 119 05/01/29 360
7 Sterling Point Apartments 116 02/01/09 360
8 Sandridge Apartments 116 02/01/09 360
9 Woodscape Apartments 116 02/01/09 360
15 Center At The Plant 118 04/01/09 360
17 Cherry Creek Retirement Village 118 04/01/09 360
18 Remington Heights Retirement Community 118 04/01/09 360
19 Charles River Center 120 06/01/09 360
24 Embarcadero Corporate Center 120 06/01/09 360
25 Best Buy Plaza Shopping Center 119 05/01/09 360
29 Sage Crossing Apartments 82 04/01/06 360
34 Ontario Plaza 116 02/01/09 360
43 Tower Plaza Retail Center 120 06/01/09 360
59 333 Sam Houston Office Building 120 06/01/09 360
62 Willow Springs Shopping Center 119 05/01/09 300
63 Villa Shopping Center 119 05/01/09 300
64 Crystal Gardens Shopping Center 119 05/01/09 300
67 Holiday Inn Express - City Center 119 05/01/09 300
78 Campus Hills Shopping Center 120 06/01/09 360
84 929 Pearl Street 119 05/01/09 360
85 2005 Tenth Street 119 05/01/09 360
102 Glendale Medical Arts Center 119 05/01/09 360
106 Pickwick Apartments 117 03/01/09 360
107 The Villas of Buena Vista Apartments 120 06/01/09 300
108 The Parkview Apartments - TX 120 06/01/09 300
109 Madras Apartments 120 06/01/09 300
110 Alexandria Apartments - TX 120 06/01/09 300
111 Sandia Park 120 06/01/09 300
112 4300 Travis Apartments 120 06/01/09 300
113 Vista Quarters Condos 120 06/01/09 300
114 3131 Armstrong Condominiums 120 06/01/09 300
115 The Essex 120 06/01/09 300
116 4431 Travis Street Apartments 120 06/01/09 300
117 4432 Buena Vista Apartments 120 06/01/09 300
118 The Annex Apartments 120 06/01/09 300
119 4319 Buena Vista Apartments 120 06/01/09 300
120 The Chase Apartments 120 06/01/09 300
121 Avalon Apartments 120 06/01/09 300
122 Point Breeze Apartments 119 05/01/09 360
123 Hidden Oaks Apartments 119 05/01/09 360
131 McGehee Park Apartments 119 05/01/09 360
137 The Highlands Apartments 119 05/01/09 360
147 Capital Heights Shopping Center 119 05/01/09 360
149 NationsBank Office Building 120 06/01/09 360
150 Pecos Trail Office Compound, Phase III 119 05/01/09 360
156 Best Western - San Mateo Los Prados Inn 83 05/01/06 300
158 1600 Congress Street/343 Forest Avenue 118 04/01/09 300
160 Mustang Crossing Apartments 119 05/01/09 360
161 Meadow Crossing Apartments 119 05/01/09 300
163 Daley Square 120 06/01/09 360
170 Mont Michel Apartments 119 05/01/09 264
181 135 Raritan Center Parkway 120 06/01/09 360
188 Kirkland Business Center 118 04/01/09 300
195 Crystal Springs Apartments 119 05/01/09 300
196 Chateau Park Apartments 118 04/01/09 360
197 Scottsdale Air Park 118 04/01/09 360
200 Dale Terrace Apartments 117 03/01/09 360
202 Virginia Dare Office Building 120 06/01/09 360
205 Kessel Food Market - Flushing 117 03/01/09 300
206 Kessel Food Market - Grand Blanc 117 03/01/09 300
207 178-188 Middle Street 120 06/01/09 300
208 350 Raritan Center Parkway 120 06/01/09 300
212 Vagabond Apartments 298 04/01/24 300
214 Mission Plaza 178 04/01/14 360
222 Comfort Inn - San Jose 120 06/01/09 300
224 Sandpiper Apartments 119 05/01/09 360
226 Perimeter Plaza Shopping Center 118 04/01/09 300
227 Red Oak Apartments 117 03/01/09 300
228 Diplomat Apartments 117 03/01/09 300
229 Waterston Apartments 117 03/01/09 300
230 Montage Apartments 117 03/01/09 300
231 Melroy Apartments 117 03/01/09 300
232 Envoy Apartments 117 03/01/09 300
236 Glenwood Apartments 120 06/01/09 360
237 Georgian Court/Woodside Apartments 120 06/01/09 300
240 Regency Apartments 120 06/01/09 300
244 Dunshire Gardens Apartments 118 04/01/09 300
245 Alpine Gardens Apartments 118 04/01/09 300
246 Delvale Apartments 118 04/01/09 300
247 The Northwest Medical Plaza Shopping Center 117 03/01/09 300
250 Rutherford Place 119 05/01/09 360
254 Spring Gardens Apartments 120 06/01/09 300
255 The Admiral Apartments & The Drake Apartments 118 04/01/09 360
256 Heritage Apartments 298 04/01/24 300
257 Montgomery Village Executive Plaza Phase I 178 04/01/14 180
258 Orchard Lake Mini-Storage 119 05/01/09 300
259 Parker Road Retail 119 05/01/09 300
260 Smith Shopping Center 114 12/01/08 360
263 Free Street Office Building 119 05/01/09 300
264 Maple Valley Plaza 118 04/01/09 240
265 Crestview Apartments 233 11/01/18 240
266 Cedar Lakes Apartments 113 11/01/08 360
267 Rose Garden Apartments 298 04/01/24 300
269 Edelweiss Apartments 115 01/01/09 300
270 The Wachler Building 113 11/01/08 240
273 Diversey & Sheffield Plaza 119 05/01/09 300
274 The Pinger Building 114 12/01/08 300
275 Elden Professional Building 119 05/01/09 300
276 Orangetree Apartments 113 11/01/08 360
277 Silver Cliff Apartments 119 05/01/09 300
278 Granada Plaza 119 05/01/09 300
279 Summitwood Village Apartments 115 01/01/09 360
281 All American Mini Storage 119 05/01/09 300
282 201 Commonwealth Court 120 06/01/09 300
283 Olde Oaks Apartments 118 04/01/09 300
284 Bouganvillas Apartments 115 01/01/09 360
285 Martin Mobile Home Park 120 06/01/09 300
286 Ellendale Place Apartments 300 06/01/24 300
287 Kessel Food Market - Saginaw 119 05/01/09 300
288 Talbot Center 120 06/01/09 360
290 Strawberry Hill Apartments 120 06/01/09 300
291 McGeordan Apartments 117 03/01/09 300
292 Camel Toe Plaza Shopping Center 119 05/01/09 300
293 Washington Park Offices 237 03/01/19 240
294 Denway Circle Apartments 118 04/01/09 360
295 Oxford Village Apartments 118 04/01/09 360
296 Space Saver #8 Self-Storage Facility 118 04/01/09 300
297 Food City Retail Center 117 03/01/09 300
298 Meadowood I Apartments 120 06/01/09 360
299 Windy Hill Apartments 120 06/01/09 300
300 Northgate Plaza 120 06/01/09 300
302 Ogden Apartments 120 06/01/09 300
303 Oak Lawn Square 119 05/01/09 300
304 Flat Iron Building 239 05/01/19 240
305 Baymar Apartments 233 11/01/18 240
306 Texas City Medical Office Building 118 04/01/09 240
307 Hollyvale Apartments 118 04/01/09 240
308 Grandin Village Apartments 120 06/01/09 300
309 Riverview Estates Mobile Home Park 117 03/01/09 300
310 Tree Top Apartments 119 05/01/09 300
311 871 Islington Street 117 03/01/09 300
312 Westwood Apartments 117 03/01/09 240
313 Territorial Village 174 12/01/13 300
314 Telshor Tower Plaza 174 12/01/13 300
315 Congress Building 118 04/01/09 300
316 Continental House Apartments 117 03/01/09 300
317 Affordable Self Storage 120 06/01/09 300
318 Iroquois Apartments 119 05/01/09 300
319 Bay Palm Apartments 119 05/01/09 360
320 969 & 971 Amsterdam Avenue 119 05/01/09 300
321 59-15 55th Street 117 03/01/09 300
322 Chesterfield/Eula Apartments 116 02/01/09 240
323 Carillon Retail Center 119 05/01/09 300
324 Pine Street Apartments & Blossom Street Apartments 120 06/01/09 240
325 Penn State Office Building 119 05/01/09 360
326 Autumn Run Apartments 114 12/01/08 300
327 Pullman Park Apartments 115 01/01/09 300
328 Spanish Oaks Apartments 115 01/01/09 300
329 Ballenger Manor Apartments 119 05/01/09 300
330 Allen Avenue Apartments 116 02/01/09 300
331 Skyline Mall 116 02/01/09 240
332 James Road Medical Center 120 06/01/09 300
333 Rebecca Apartments 230 08/01/18 240
334 The Homestead Apartments 120 06/01/09 300
335 Corona Avenue Apartments 239 05/01/19 240
336 Sandstone Apartments 115 01/01/09 300
337 Lynn Villa Apartments 118 04/01/09 300
338 Savannah Apartments 118 04/01/09 300
339 Vienna Terrace Apartments 114 12/01/08 240
340 Alexandria Apartments - CO 118 04/01/09 300
341 Boynton Vista Apartments 115 01/01/09 300
342 Navarro Crossing Apartments 115 01/01/09 240
343 Kordis Apartments 115 01/01/09 300
<CAPTION>
Property Name Remaining Amortization ARD Date Prepayment Provision
------------- ---------------------- -------- --------------------
<S> <C> <C> <C>
2 Arbor Lake Club Apartments 360 L (9.5), O (0.5)
3 The Parkview Apartments - FL 360 L (9.5), O (0.5)
4 Heron's Cove Apartments 360 L (9.5), O (0.5)
5 Horizons North Apartments 360 L (9.5), O (0.5)
6 Herald Center 359 05/01/09 L (9.5), O (0.5)
7 Sterling Point Apartments 356 L (9.5), O (0.5)
8 Sandridge Apartments 356 L (9.5), O (0.5)
9 Woodscape Apartments 356 L (9.5), O (0.5)
15 Center At The Plant 358 L (9.5), O (0.5)
17 Cherry Creek Retirement Village 358 L (9.5), O (0.5)
18 Remington Heights Retirement Community 358 L (9.5), O (0.5)
19 Charles River Center 360 L (9.5), O (0.5)
24 Embarcadero Corporate Center 360 L (9.5), O (0.5)
25 Best Buy Plaza Shopping Center 359 L (9.5), O (0.5)
29 Sage Crossing Apartments 358 L (6.5), O (0.5)
34 Ontario Plaza 356 L (9.5), O (0.5)
43 Tower Plaza Retail Center 360 L (9.5), O (0.5)
59 333 Sam Houston Office Building 360 L (9.5), O (0.5)
62 Willow Springs Shopping Center 299 L (9.5), O (0.5)
63 Villa Shopping Center 299 L (9.5), O (0.5)
64 Crystal Gardens Shopping Center 299 L (9.5), O (0.5)
67 Holiday Inn Express - City Center 299 L (9.5), O (0.5)
78 Campus Hills Shopping Center 360 L (9.5), O (0.5)
84 929 Pearl Street 359 L (9.5), O (0.5)
85 2005 Tenth Street 359 L (9.5), O (0.5)
102 Glendale Medical Arts Center 359 L (9.5), O (0.5)
106 Pickwick Apartments 357 L (9.5), O (0.5)
107 The Villas of Buena Vista Apartments 300 L (9.5), O (0.5)
108 The Parkview Apartments - TX 300 L (9.5), O (0.5)
109 Madras Apartments 300 L (9.5), O (0.5)
110 Alexandria Apartments - TX 300 L (9.5), O (0.5)
111 Sandia Park 300 L (9.5), O (0.5)
112 4300 Travis Apartments 300 L (9.5), O (0.5)
113 Vista Quarters Condos 300 L (9.5), O (0.5)
114 3131 Armstrong Condominiums 300 L (9.5), O (0.5)
115 The Essex 300 L (9.5), O (0.5)
116 4431 Travis Street Apartments 300 L (9.5), O (0.5)
117 4432 Buena Vista Apartments 300 L (9.5), O (0.5)
118 The Annex Apartments 300 L (9.5), O (0.5)
119 4319 Buena Vista Apartments 300 L (9.5), O (0.5)
120 The Chase Apartments 300 L (9.5), O (0.5)
121 Avalon Apartments 300 L (9.5), O (0.5)
122 Point Breeze Apartments 359 L (9.5), O (0.5)
123 Hidden Oaks Apartments 359 L (9.5), O (0.5)
131 McGehee Park Apartments 359 L (9.5), O (0.5)
137 The Highlands Apartments 359 L (9.5), O (0.5)
147 Capital Heights Shopping Center 359 L (9.5), O (0.5)
149 NationsBank Office Building 360 L (9.5), O (0.5)
150 Pecos Trail Office Compound, Phase III 359 L (9.5), O (0.5)
156 Best Western - San Mateo Los Prados Inn 299 L (6.5), O (0.5)
158 1600 Congress Street/343 Forest Avenue 298 L (9.5), O (0.5)
160 Mustang Crossing Apartments 359 L (9.5), O (0.5)
161 Meadow Crossing Apartments 299 L (9.5), O (0.5)
163 Daley Square 360 L (9.5), O (0.5)
170 Mont Michel Apartments 263 L (9.5), O (0.5)
181 135 Raritan Center Parkway 360 L (9.5), O (0.5)
188 Kirkland Business Center 298 L (9.5), O (0.5)
195 Crystal Springs Apartments 299 L (9.5), O (0.5)
196 Chateau Park Apartments 358 L (9.5), O (0.5)
197 Scottsdale Air Park 358 L (9.5), O (0.5)
200 Dale Terrace Apartments 357 L (9.5), O (0.5)
202 Virginia Dare Office Building 360 L (9.5), O (0.5)
205 Kessel Food Market - Flushing 297 L (9.5), O (0.5)
206 Kessel Food Market - Grand Blanc 297 L (9.5), O (0.5)
207 178-188 Middle Street 300 L (9.5), O (0.5)
208 350 Raritan Center Parkway 300 L (9.5), O (0.5)
212 Vagabond Apartments 298 L (24.5), O (0.5)
214 Mission Plaza 358 L (14.5), O (0.5)
222 Comfort Inn - San Jose 300 L (9.5), O (0.5)
224 Sandpiper Apartments 359 L (9.5), O (0.5)
226 Perimeter Plaza Shopping Center 298 L (9.5), O (0.5)
227 Red Oak Apartments 297 L (9.5), O (0.5)
228 Diplomat Apartments 297 L (9.5), O (0.5)
229 Waterston Apartments 297 L (9.5), O (0.5)
230 Montage Apartments 297 L (9.5), O (0.5)
231 Melroy Apartments 297 L (9.5), O (0.5)
232 Envoy Apartments 297 L (9.5), O (0.5)
236 Glenwood Apartments 360 L (9.5), O (0.5)
237 Georgian Court/Woodside Apartments 300 L (9.5), O (0.5)
240 Regency Apartments 300 L (9.5), O (0.5)
244 Dunshire Gardens Apartments 298 L (9.5), O (0.5)
245 Alpine Gardens Apartments 298 L (9.5), O (0.5)
246 Delvale Apartments 298 L (9.5), O (0.5)
247 The Northwest Medical Plaza Shopping Center 297 L (9.5), O (0.5)
250 Rutherford Place 359 L (9.5), O (0.5)
254 Spring Gardens Apartments 300 L (9.5), O (0.5)
255 The Admiral Apartments & The Drake Apartments 358 L (9.5), O (0.5)
256 Heritage Apartments 298 L (24.5), O (0.5)
257 Montgomery Village Executive Plaza Phase I 178 L (14.5), O (0.5)
258 Orchard Lake Mini-Storage 299 L (9.5), O (0.5)
259 Parker Road Retail 299 L (9.5), O (0.5)
260 Smith Shopping Center 354 L (9.5), O (0.5)
263 Free Street Office Building 299 L (9.5), O (0.5)
264 Maple Valley Plaza 238 L (9.5), O (0.5)
265 Crestview Apartments 233 L (19.5), O (0.5)
266 Cedar Lakes Apartments 353 L (5), YM 1% (4.5), O (0.5)
267 Rose Garden Apartments 298 L (24.5), O (0.5)
269 Edelweiss Apartments 295 L (9.5), O (0.5)
270 The Wachler Building 233 L (9.5), O (0.5)
273 Diversey & Sheffield Plaza 299 L (9.5), O (0.5)
274 The Pinger Building 294 L (9.5), O (0.5)
275 Elden Professional Building 299 L (9.5), O (0.5)
276 Orangetree Apartments 353 L (9.5), O (0.5)
277 Silver Cliff Apartments 299 L (9.5), O (0.5)
278 Granada Plaza 299 L (9.5), O (0.5)
279 Summitwood Village Apartments 355 L (9.5), O (0.5)
281 All American Mini Storage 299 L (9.5), O (0.5)
282 201 Commonwealth Court 300 L (9.5), O (0.5)
283 Olde Oaks Apartments 298 L (9.5), O (0.5)
284 Bouganvillas Apartments 355 L (9.5), O (0.5)
285 Martin Mobile Home Park 300 L (9.5), O (0.5)
286 Ellendale Place Apartments 300 L (24.5), O (0.5)
287 Kessel Food Market - Saginaw 299 L (9.5), O (0.5)
288 Talbot Center 360 L (9.5), O (0.5)
290 Strawberry Hill Apartments 300 L (9.5), O (0.5)
291 McGeordan Apartments 297 L (9.5), O (0.5)
292 Camel Toe Plaza Shopping Center 299 L (9.5), O (0.5)
293 Washington Park Offices 237 L (19.5), O (0.5)
294 Denway Circle Apartments 358 L (9.5), O (0.5)
295 Oxford Village Apartments 358 L (9.5), O (0.5)
296 Space Saver #8 Self-Storage Facility 298 L (9.5), O (0.5)
297 Food City Retail Center 297 L (9.5), O (0.5)
298 Meadowood I Apartments 360 L (9.5), O (0.5)
299 Windy Hill Apartments 300 L (9.5), O (0.5)
300 Northgate Plaza 300 L (9.5), O (0.5)
302 Ogden Apartments 300 L (9.5), O (0.5)
303 Oak Lawn Square 299 L (9.5), O (0.5)
304 Flat Iron Building 239 L (19.5), O (0.5)
305 Baymar Apartments 233 L (19.5), O (0.5)
306 Texas City Medical Office Building 238 L (9.5), O (0.5)
307 Hollyvale Apartments 238 L (9.5), O (0.5)
308 Grandin Village Apartments 300 L (9.5), O (0.5)
309 Riverview Estates Mobile Home Park 297 L (9.5), O (0.5)
310 Tree Top Apartments 299 L (9.5), O (0.5)
311 871 Islington Street 297 L (9.5), O (0.5)
312 Westwood Apartments 237 L (9.5), O (0.5)
313 Territorial Village 294 L (14.5), O (0.5)
314 Telshor Tower Plaza 294 L (14.5), O (0.5)
315 Congress Building 298 L (9.5), O (0.5)
316 Continental House Apartments 297 L (9.5), O (0.5)
317 Affordable Self Storage 300 L (9.5), O (0.5)
318 Iroquois Apartments 299 L (9.5), O (0.5)
319 Bay Palm Apartments 359 L (9.5), O (0.5)
320 969 & 971 Amsterdam Avenue 299 L (9.5), O (0.5)
321 59-15 55th Street 297 L (9.5), O (0.5)
322 Chesterfield/Eula Apartments 236 L (9.5), O (0.5)
323 Carillon Retail Center 299 L (9.5), O (0.5)
324 Pine Street Apartments & Blossom Street Apartments 240 L (9.5), O (0.5)
325 Penn State Office Building 359 L (9.5), O (0.5)
326 Autumn Run Apartments 294 L (9.5), O (0.5)
327 Pullman Park Apartments 295 L (9.5), O (0.5)
328 Spanish Oaks Apartments 295 L (9.5), O (0.5)
329 Ballenger Manor Apartments 299 L (9.5), O (0.5)
330 Allen Avenue Apartments 296 L (9.5), O (0.5)
331 Skyline Mall 236 L (9.5), O (0.5)
332 James Road Medical Center 300 L (9.5), O (0.5)
333 Rebecca Apartments 230 L (3), YM 1% (6.5), O (10.5)
334 The Homestead Apartments 300 L (9.5), O (0.5)
335 Corona Avenue Apartments 239 L (19.5), O (0.5)
336 Sandstone Apartments 295 L (9.5), O (0.5)
337 Lynn Villa Apartments 298 L (9.5), O (0.5)
338 Savannah Apartments 298 L (9.5), O (0.5)
339 Vienna Terrace Apartments 234 L (9.5), O (0.5)
340 Alexandria Apartments - CO 298 L (9.5), O (0.5)
341 Boynton Vista Apartments 295 L (9.5), O (0.5)
342 Navarro Crossing Apartments 235 L (9.5), O (0.5)
343 Kordis Apartments 295 L (9.5), O (0.5)
<CAPTION>
Property Name Defeasance (Yes/No/Both) Fee/Leasehold Interest Calculation
------------- ------------------------ ------------- --------------------
<S> <C> <C> <C>
2 Arbor Lake Club Apartments Yes Fee Actual/360
3 The Parkview Apartments - FL Yes Fee Actual/360
4 Heron's Cove Apartments Yes Fee Actual/360
5 Horizons North Apartments Yes Fee Actual/360
6 Herald Center Yes Fee Actual/360
7 Sterling Point Apartments Yes Fee Actual/360
8 Sandridge Apartments Yes Fee Actual/360
9 Woodscape Apartments Yes Fee Actual/360
15 Center At The Plant Yes Fee Actual/360
17 Cherry Creek Retirement Village Yes Fee Actual/360
18 Remington Heights Retirement Community Yes Fee Actual/360
19 Charles River Center Yes Fee Actual/360
24 Embarcadero Corporate Center Yes Fee Actual/360
25 Best Buy Plaza Shopping Center Yes Fee Actual/360
29 Sage Crossing Apartments Yes Fee Actual/360
34 Ontario Plaza Yes Fee Actual/360
43 Tower Plaza Retail Center Yes Fee Actual/360
59 333 Sam Houston Office Building Yes Fee Actual/360
62 Willow Springs Shopping Center Yes Fee Actual/360
63 Villa Shopping Center Yes Fee Actual/360
64 Crystal Gardens Shopping Center Yes Fee Actual/360
67 Holiday Inn Express - City Center Yes Fee Actual/360
78 Campus Hills Shopping Center Yes Fee Actual/360
84 929 Pearl Street Yes Fee Actual/360
85 2005 Tenth Street Yes Fee Actual/360
102 Glendale Medical Arts Center Yes Fee Actual/360
106 Pickwick Apartments Yes Fee Actual/360
107 The Villas of Buena Vista Apartments Yes Fee Actual/360
108 The Parkview Apartments - TX Yes Fee Actual/360
109 Madras Apartments Yes Fee Actual/360
110 Alexandria Apartments - TX Yes Fee Actual/360
111 Sandia Park Yes Fee Actual/360
112 4300 Travis Apartments Yes Fee Actual/360
113 Vista Quarters Condos Yes Fee Actual/360
114 3131 Armstrong Condominiums Yes Fee Actual/360
115 The Essex Yes Fee Actual/360
116 4431 Travis Street Apartments Yes Fee Actual/360
117 4432 Buena Vista Apartments Yes Fee Actual/360
118 The Annex Apartments Yes Fee Actual/360
119 4319 Buena Vista Apartments Yes Fee Actual/360
120 The Chase Apartments Yes Fee Actual/360
121 Avalon Apartments Yes Fee Actual/360
122 Point Breeze Apartments Yes Fee Actual/360
123 Hidden Oaks Apartments Yes Fee Actual/360
131 McGehee Park Apartments Yes Fee Actual/360
137 The Highlands Apartments Yes Fee Actual/360
147 Capital Heights Shopping Center Yes Fee Actual/360
149 NationsBank Office Building Yes Fee Actual/360
150 Pecos Trail Office Compound, Phase III Yes Fee Actual/360
156 Best Western - San Mateo Los Prados Inn Yes Fee Actual/360
158 1600 Congress Street/343 Forest Avenue Yes Fee/Leasehold Actual/360
160 Mustang Crossing Apartments Yes Fee Actual/360
161 Meadow Crossing Apartments Yes Fee Actual/360
163 Daley Square Yes Fee Actual/360
170 Mont Michel Apartments Yes Fee Actual/360
181 135 Raritan Center Parkway Yes Fee Actual/360
188 Kirkland Business Center Yes Fee Actual/360
195 Crystal Springs Apartments Yes Fee Actual/360
196 Chateau Park Apartments Yes Fee Actual/360
197 Scottsdale Air Park Yes Fee Actual/360
200 Dale Terrace Apartments Yes Fee Actual/360
202 Virginia Dare Office Building Yes Fee Actual/360
205 Kessel Food Market - Flushing Yes Fee Actual/360
206 Kessel Food Market - Grand Blanc Yes Fee Actual/360
207 178-188 Middle Street Yes Fee Actual/360
208 350 Raritan Center Parkway Yes Fee Actual/360
212 Vagabond Apartments Yes Fee Actual/360
214 Mission Plaza Yes Fee Actual/360
222 Comfort Inn - San Jose Yes Fee Actual/360
224 Sandpiper Apartments Yes Fee Actual/360
226 Perimeter Plaza Shopping Center Yes Fee Actual/360
227 Red Oak Apartments Yes Fee Actual/360
228 Diplomat Apartments Yes Fee Actual/360
229 Waterston Apartments Yes Fee Actual/360
230 Montage Apartments Yes Fee Actual/360
231 Melroy Apartments Yes Fee Actual/360
232 Envoy Apartments Yes Fee Actual/360
236 Glenwood Apartments Yes Fee Actual/360
237 Georgian Court/Woodside Apartments Yes Fee Actual/360
240 Regency Apartments Yes Fee Actual/360
244 Dunshire Gardens Apartments Yes Fee Actual/360
245 Alpine Gardens Apartments Yes Fee Actual/360
246 Delvale Apartments Yes Fee Actual/360
247 The Northwest Medical Plaza Shopping Center Yes Fee Actual/360
250 Rutherford Place Yes Fee Actual/360
254 Spring Gardens Apartments Yes Fee Actual/360
255 The Admiral Apartments & The Drake Apartments Yes Fee Actual/360
256 Heritage Apartments Yes Fee Actual/360
257 Montgomery Village Executive Plaza Phase I Yes Fee Actual/360
258 Orchard Lake Mini-Storage Yes Fee Actual/360
259 Parker Road Retail Yes Fee Actual/360
260 Smith Shopping Center Yes Fee Actual/360
263 Free Street Office Building Yes Fee Actual/360
264 Maple Valley Plaza Yes FEE Actual/360
265 Crestview Apartments Yes Fee Actual/360
266 Cedar Lakes Apartments No Fee Actual/360
267 Rose Garden Apartments Yes Fee Actual/360
269 Edelweiss Apartments Yes Fee Actual/360
270 The Wachler Building Yes Fee Actual/360
273 Diversey & Sheffield Plaza Yes Fee Actual/360
274 The Pinger Building Yes Fee Actual/360
275 Elden Professional Building Yes Fee Actual/360
276 Orangetree Apartments Yes Fee Actual/360
277 Silver Cliff Apartments Yes Fee Actual/360
278 Granada Plaza Yes Fee Actual/360
279 Summitwood Village Apartments Yes Fee Actual/360
281 All American Mini Storage Yes Fee Actual/360
282 201 Commonwealth Court Yes Fee Actual/360
283 Olde Oaks Apartments Yes Fee Actual/360
284 Bouganvillas Apartments Yes Fee Actual/360
285 Martin Mobile Home Park Yes Fee Actual/360
286 Ellendale Place Apartments Yes Fee Actual/360
287 Kessel Food Market - Saginaw Yes Fee Actual/360
288 Talbot Center Yes Fee Actual/360
290 Strawberry Hill Apartments Yes Fee Actual/360
291 McGeordan Apartments Yes Fee Actual/360
292 Camel Toe Plaza Shopping Center Yes Fee Actual/360
293 Washington Park Offices Yes Fee Actual/360
294 Denway Circle Apartments Yes Fee Actual/360
295 Oxford Village Apartments Yes Fee Actual/360
296 Space Saver #8 Self-Storage Facility Yes Fee Actual/360
297 Food City Retail Center Yes Fee Actual/360
298 Meadowood I Apartments Yes Fee Actual/360
299 Windy Hill Apartments Yes Fee Actual/360
300 Northgate Plaza Yes Fee Actual/360
302 Ogden Apartments Yes Fee Actual/360
303 Oak Lawn Square Yes Fee Actual/360
304 Flat Iron Building Yes Fee Actual/360
305 Baymar Apartments Yes Fee Actual/360
306 Texas City Medical Office Building Yes Fee Actual/360
307 Hollyvale Apartments Yes Fee Actual/360
308 Grandin Village Apartments Yes Fee Actual/360
309 Riverview Estates Mobile Home Park Yes Fee Actual/360
310 Tree Top Apartments Yes Fee Actual/360
311 871 Islington Street Yes Fee Actual/360
312 Westwood Apartments Yes Fee Actual/360
313 Territorial Village Yes Fee Actual/360
314 Telshor Tower Plaza Yes Fee Actual/360
315 Congress Building Yes Fee Actual/360
316 Continental House Apartments Yes Fee Actual/360
317 Affordable Self Storage Yes Fee Actual/360
318 Iroquois Apartments Yes Fee Actual/360
319 Bay Palm Apartments Yes Fee Actual/360
320 969 & 971 Amsterdam Avenue Yes Fee Actual/360
321 59-15 55th Street Yes Fee Actual/360
322 Chesterfield/Eula Apartments Yes Fee Actual/360
323 Carillon Retail Center Yes Fee Actual/360
324 Pine Street Apartments & Blossom Street Apartments Yes Fee Actual/360
325 Penn State Office Building Yes Fee Actual/360
326 Autumn Run Apartments Yes Fee Actual/360
327 Pullman Park Apartments Yes Fee Actual/360
328 Spanish Oaks Apartments Yes Fee Actual/360
329 Ballenger Manor Apartments Yes Fee Actual/360
330 Allen Avenue Apartments Yes Fee Actual/360
331 Skyline Mall Yes Fee Actual/360
332 James Road Medical Center Yes Fee Actual/360
333 Rebecca Apartments No Fee Actual/360
334 The Homestead Apartments Yes Fee Actual/360
335 Corona Avenue Apartments Yes Fee Actual/360
336 Sandstone Apartments Yes Fee Actual/360
337 Lynn Villa Apartments Yes Fee Actual/360
338 Savannah Apartments Yes Fee Actual/360
339 Vienna Terrace Apartments Yes Fee Actual/360
340 Alexandria Apartments - CO Yes Fee Actual/360
341 Boynton Vista Apartments Yes Fee Actual/360
342 Navarro Crossing Apartments Yes Fee Actual/360
343 Kordis Apartments Yes Fee Actual/360
</TABLE>
<PAGE>
EXHIBIT B-1B
SCHEDULE OF GECA MORTGAGE LOANS
B-1B-1
<PAGE>
<TABLE>
<CAPTION>
Property Name Address
<S> <C> <C>
1 Oakwood Plaza Oakwood Boulevard
10 Stone Fort Land - The Tallan Office Building & The Tallan Parking Garage 200 Martin Luther King Boulevard & 130
West 10th Street
11 Stone Fort Land - The Krystal Office Building 100 Martin Luther King Boulevard
12 Stone Fort Land - Riverside Center 1501 Riverside Drive
13 Stone Fort Land - Harrison Direct Warehouse 2505 East 43rd Street
14 Stone Fort Land - Tennessee American Water Company Office Building 1101 Broad Street
16 The Boardwalk 3770 Flora Vista Avenue
20 Fox Run Shopping Center Route 40 & Wrangle Hill Road
26 Highland Falls Apartments 2560 Delk Road
27 Rancho Ocaso 3900 East Sunset Road
28 The Court at Deptford II 1535-75 Almonesson Road
32 Sundance Village Apartments 11251 NW 7th Street
33 Lake Mead Pavilion Shopping Center 7301-7399 West Lake Mead Boulevard
35 Cole Spring Plaza 1001 Spring Street
36 Penney's Plaza 5548 Springdale Avenue
37 Pines of Westbury 12500 - 12600 Dunlap
39 River Haven Mobile Home Park 14546 Mercury Drive
40 Knollwood Estates Mobile Home Park 4595 Knollwood Drive
41 Colesville Towers 8811 Colesville Road
42 North Pointe Apartments 336 Blackhawk Road
45 The Mosby Building & Apartments 10560 Main Street
48 U-Haul - Rusfield 15 Rusfield Street
49 U-Haul - San Clemente 310 Avenida Pico
50 U-Haul - East Colonial 4001 East Colonial Boulevard
51 U-Haul - MacArthur Park 6500 NW Expressway
52 Park Knolls Apartments 1100 Pedras Road
54 U-Haul - Dublin 6265 Scarlett Court
55 U-Haul - Northridge 18160 Parthenia Street
56 U-Haul - Orange Park 701 Blanding Boulevard
57 U-Haul - Tulsa 5140 South 103 East Avenue
58 Cherry Knolls Shopping Center 6900 South University Boulevard
65 Hazelcrest Place 100 Hazelcrest Place
66 BJ's Plaza Shopping Center 3447-3469 University Drive
68 U-Haul - Margate 1700 North State Road 7
69 U-Haul - Copperfield 8330 Highway 6 North
70 U-Haul - Hampton 1023 West Mercury Boulevard
71 U-Haul - Lodi 450 North Cherokee Lane
72 Fashion Outlet Center 501 Elizabeth Street
73 Tivoli Apartments 2841 SW 13th Street
75 1384-1450 Park Avenue 1384-1450 Park Avenue
76 Rojacks Supermarket/CVS Pharmacy 1475 Newman Avenue
77 Trucchi's Supermarket 2941 Acushnet Avenue
79 Carrollton Place Apartments 1205 Maple Street
80 Welshwood Apartments 2661 Willits Road
83 294-306A Harvard Street 294-306A Harvard Street
87 Mesa Dunes Mobile Home Park 7807 East Apache Trail
88 Pleasant Hill Executive Park 391-399 Taylor Boulevard
89 Best Western - Stratford Inn 624-710 Camino Del Mar
91 Country Corners Apartments 5045 Dierker Road
92 Bell Palm Plaza 6201-6391 Atlantic Avenue
93 Pleasant Run Apartments 2525 West Pleasant Run Road
94 Chalet Apartments & Commercial Plaza 3816 North 109th Plaza
96 Hampton Inn - Anchorage 4301 Credit Union Drive
97 Pacific Isle Apartments 1829 East Workman Avenue
98 Sunset Crest Apartments 745 North Sunset Avenue
100 Hampton Inn & Suites - Annapolis 124 Womack Drive
101 Carlisle Commerce Center 2100 White Street
104 Village Green Plaza Shopping Center 18500 Kuykendahl Road
105 South Bank Riverwalk Retail 111 West Crockett Street
126 The Plaza Apartments 2315-2335 East Tahquitz Canyon Way
130 Westridge Marketplace 901 Smokey Park Highway
132 Cypress Center 6847 - 6947 Katella Avenue
133 Best Western - Miramar 9310 Kearny Mesa Road
134 Garden City Tower 6120 Middlebelt Road
138 8800 Roswell Road Office Park 8800 Roswell Road
139 Turf Mobile Manor 15601 North 19th Avenue
140 Oakwood Village Apartments 1521 37th Street
143 Comfort Inn - Augusta 281 Civic Center Drive
144 220 Jackson Street 220 Jackson Street
146 75 Canton Office Park 1335-1343 Canton Road
148 Emerald Center 1965 Foothill Boulevard
152 Hampton Inn - Louisville 912 Dillon Road
153 Holiday Inn - Augusta 110 Community Road
154 Nassau Bay Village Apartments 18290 Upper Bay Road
159 Scenic View Apartments 755 East Virginia Way
162 Owens Corning Manufacturing Warehouse 1851 South Seguin Avenue
167 3005 Peachtree Road 3005 Peachtree Road
168 Hampton Inn - Columbus East 1890 Winderly Lane
169 Newport Towers 2 28th Street
171 Soniat House Hotel 1130 & 1133 Rue Chartres
172 Fairview Market 655 Fairview Road
174 Embassy Building 1424 16th Street, NW
175 Park Terrace Apartments 12351 Marshall Avenue
176 Westheimer Plaza Shopping Center 5757 Westheimer Road
178 Woodspear/Vista Flores Apartments 240 & 258 Las Flores Drive
179 Clarendon CVS 2900 North 10th Street
180 A Storage Place Phases I & II 2523 NW 6th Street & 101-127 NW 25th Avenue
183 Crescent View Apartments 2924 Lucas Street
184 Comfort Suites Intercontinental Plaza 15555 JFK Boulevard
186 Blue Bell Shopping Center Grovers Avenue & 70th Street
187 Sun Plaza 9116-9126 West Bowles Avenue
190 Kmart - Columbus 5436 Westerville Road
191 Briarwood Mobile Home Park 134 Ferne Lane
193 Forest Edge Apartments 4098 Fox Glove Lane
194 Sonora Crossroads 1191-1281 Sanguinetti Road
198 Preston Royal Office Park 5924 & 5952 Royal Lane
203 Rustic Ridge Apartments 4284 Vineshire Drive
204 Heritage Square Retail Center 3300 East Tulare Avenue
210 Meadowood Apartments 634 East Alosta Avenue
211 Country Club Corner Retail Center 1612-1642 North College Avenue
213 Esprit Office Building 515 Capital of Texas Highway
216 Another Attic Self Storage 4600 Bell Street
217 Raintree Apartments 5670 Raintree Place
220 Preston Plaza 19129 Preston Road
221 U.S. Storage Centers 550 South Richfield Road
223 A-1 Mini Storage 4918 West First Street
225 Plantation Xtra Storage 8459 NW 17th Court
233 Sixth & Gass Office Building 732 South 6th Street
234 Rancho Los Amigos 600 West Orange Grove Road
235 Savemart Shopping Center 2931 Harbor Street
238 Everhart Place Apartments 5855 Everhart Road
239 West 34th Self Storage 7409 West 34th Avenue
242 North American/Lazy "R" Manufactured Housing Communities 1801 South Jefferson Road/1602 East
2nd Avenue
249 OfficeMax 2255 South MacArthur Drive
251 The Woods II Office Buildings 8500 North MoPac Expressway
252 Greenville Avenue B & G 2815-2831 Greenville Avenue
253 Boulder Ridge Apartments 78 50th Street
261 Rivermont Park 350-600 Rivermont Drive
262 SecurCare of Colorado Springs 1545 South Nevada Avenue &
320 East St. Elmo Avenue
268 Kmart - Charleston 6531 MacCorkle Avenue SE
272 Autumn Ridge Apartments 501 Massey Tompkins Road
<CAPTION>
Property Name City County
<S> <C> <C> <C>
1 Oakwood Plaza Hollywood Broward
10 Stone Fort Land - The Tallan Office Building & The Tallan Parking Garage Chattanooga Hamilton
11 Stone Fort Land - The Krystal Office Building Chattanooga Hamilton
12 Stone Fort Land - Riverside Center Chattanooga Hamilton
13 Stone Fort Land - Harrison Direct Warehouse Chattanooga Hamilton
14 Stone Fort Land - Tennessee American Water Company Office Building Chattanooga Hamilton
16 The Boardwalk Santa Clara Santa Clara
20 Fox Run Shopping Center Bear New Castle
26 Highland Falls Apartments Marietta Cobb
27 Rancho Ocaso Las Vegas Clark
28 The Court at Deptford II Deptford Gloucester
32 Sundance Village Apartments Miami Dade
33 Lake Mead Pavilion Shopping Center Las Vegas Clark
35 Cole Spring Plaza Silver Spring Montgomery
36 Penney's Plaza Pleasanton Alameda
37 Pines of Westbury Houston Harris
39 River Haven Mobile Home Park Grand Haven Ottawa
40 Knollwood Estates Mobile Home Park Allendale Ottawa
41 Colesville Towers Silver Spring Montgomery
42 North Pointe Apartments Charlotte Mecklenburg
45 The Mosby Building & Apartments Fairfax Fairfax
48 U-Haul - Rusfield Boston Suffolk
49 U-Haul - San Clemente San Clemente Orange
50 U-Haul - East Colonial Orlando Orange
51 U-Haul - MacArthur Park Oklahoma City Oklahoma
52 Park Knolls Apartments Turlock Stanislaus
54 U-Haul - Dublin Dublin Alameda
55 U-Haul - Northridge Northridge Los Angeles
56 U-Haul - Orange Park Orange Park Clay
57 U-Haul - Tulsa Tulsa Tulsa
58 Cherry Knolls Shopping Center Littleton Arapahoe
65 Hazelcrest Place Hazel Park Oakland
66 BJ's Plaza Shopping Center Sunrise Broward
68 U-Haul - Margate Margate Broward
69 U-Haul - Copperfield Houston Harris
70 U-Haul - Hampton Hampton Hampton City
71 U-Haul - Lodi Lodi San Joaquin
72 Fashion Outlet Center Boaz Marshall
73 Tivoli Apartments Gainesville Alachua
75 1384-1450 Park Avenue Woonsocket Providence
76 Rojacks Supermarket/CVS Pharmacy Seekonk Bristol
77 Trucchi's Supermarket New Bedford Bristol
79 Carrollton Place Apartments Carrollton Carroll
80 Welshwood Apartments Philadelphia Philadelphia
83 294-306A Harvard Street Brookline Norfolk
87 Mesa Dunes Mobile Home Park Mesa Maricopa
88 Pleasant Hill Executive Park Pleasant Hill Contra Costa
89 Best Western - Stratford Inn Del Mar San Diego
91 Country Corners Apartments Columbus Franklin
92 Bell Palm Plaza Bell Los Angeles
93 Pleasant Run Apartments Lancaster Dallas
94 Chalet Apartments & Commercial Plaza Omaha Douglas
96 Hampton Inn - Anchorage Anchorage Anchorage
97 Pacific Isle Apartments West Covina Los Angeles
98 Sunset Crest Apartments West Covina Los Angeles
100 Hampton Inn & Suites - Annapolis Annapolis Anne Arundel
101 Carlisle Commerce Center York York
104 Village Green Plaza Shopping Center Spring Harris
105 South Bank Riverwalk Retail San Antonio Bexar
126 The Plaza Apartments Palm Springs Riverside
130 Westridge Marketplace Candler Buncombe
132 Cypress Center Cypress Orange
133 Best Western - Miramar San Diego San Diego
134 Garden City Tower Garden City Wayne
138 8800 Roswell Road Office Park Atlanta Fulton
139 Turf Mobile Manor Phoenix Maricopa
140 Oakwood Village Apartments Orange Orange
143 Comfort Inn - Augusta Augusta Kennebec
144 220 Jackson Street San Francisco San Francisco
146 75 Canton Office Park Marietta Cobb
148 Emerald Center La Verne Los Angeles
152 Hampton Inn - Louisville Louisville Boulder
153 Holiday Inn - Augusta Augusta Kennebec
154 Nassau Bay Village Apartments Houston Harris
159 Scenic View Apartments Barstow San Bernardino
162 Owens Corning Manufacturing Warehouse New Braunfels Comal
167 3005 Peachtree Road Atlanta Fulton
168 Hampton Inn - Columbus East Pickerington Fairfield
169 Newport Towers Newport News None
171 Soniat House Hotel New Orleans Orleans
172 Fairview Market Simpsonville Greenville
174 Embassy Building Washington District of Columbia
175 Park Terrace Apartments Chino San Bernardino
176 Westheimer Plaza Shopping Center Houston Harris
178 Woodspear/Vista Flores Apartments San Marcos San Diego
179 Clarendon CVS Arlington Arlington
180 A Storage Place Phases I & II Ft. Lauderdale Broward
183 Crescent View Apartments Dallas Dallas
184 Comfort Suites Intercontinental Plaza Houston Harris
186 Blue Bell Shopping Center Philadelphia Philadelphia
187 Sun Plaza Littleton Jefferson
190 Kmart - Columbus Columbus Franklin
191 Briarwood Mobile Home Park Lake Worth Palm Beach
193 Forest Edge Apartments Columbus Franklin
194 Sonora Crossroads Sonora Tuolumne
198 Preston Royal Office Park Dallas Dallas
203 Rustic Ridge Apartments Columbus Franklin
204 Heritage Square Retail Center Fresno Fresno
210 Meadowood Apartments Glendora Los Angeles
211 Country Club Corner Retail Center Fort Collins Larimer
213 Esprit Office Building Austin Travis
216 Another Attic Self Storage Amarillo Randall
217 Raintree Apartments Columbus Franklin
220 Preston Plaza Dallas Dallas
221 U.S. Storage Centers Placentia Orange
223 A-1 Mini Storage Santa Ana Orange
225 Plantation Xtra Storage Plantation Broward
233 Sixth & Gass Office Building Las Vegas Clark
234 Rancho Los Amigos Tucson Pima
235 Savemart Shopping Center Pittsburg Contra Costa
238 Everhart Place Apartments Corpus Christi Nueces
239 West 34th Self Storage Amarillo Randall
242 North American/Lazy "R" Manufactured Housing Communities Indianola Warren
249 OfficeMax Alexandria Rapides
251 The Woods II Office Buildings Austin Travis
252 Greenville Avenue B & G Dallas Dallas
253 Boulder Ridge Apartments Wyoming Kent
261 Rivermont Park Columbia Richland
262 SecurCare of Colorado Springs Colorado Springs El Paso
268 Kmart - Charleston Charleston Kanawha
272 Autumn Ridge Apartments Baytown Harris
<CAPTION>
Zip Original
Property Name State Code Originator Loan Balance
<S> <C> <C> <C> <C>
1 Oakwood Plaza FL 33020 GECA 68,123,000
10 Stone Fort Land - The Tallan Office Building & The Tallan Parking Garage TN 37402 GECA 13,356,952
11 Stone Fort Land - The Krystal Office Building TN 37402 GECA 9,258,048
12 Stone Fort Land - Riverside Center TN 37406 GECA 8,514,000
13 Stone Fort Land - Harrison Direct Warehouse TN 37407 GECA 3,680,000
14 Stone Fort Land - Tennessee American Water Company Office Building TN 37402 GECA 1,326,000
16 The Boardwalk CA 95051 GECA 24,917,000
20 Fox Run Shopping Center DE 19804 GECA 24,000,000
26 Highland Falls Apartments GA 30067 GECA 21,300,000
27 Rancho Ocaso NV 89120 GECA 15,600,000
28 The Court at Deptford II NJ 08096 GECA 15,406,000
32 Sundance Village Apartments FL 33172 GECA 14,000,000
33 Lake Mead Pavilion Shopping Center NV 89128 GECA 13,650,000
35 Cole Spring Plaza MD 20910 GECA 13,208,421
36 Penney's Plaza CA 94588 GECA 12,961,000
37 Pines of Westbury TX 77035 GECA 13,000,000
39 River Haven Mobile Home Park MI 49417 GECA 9,939,020
40 Knollwood Estates Mobile Home Park MI 49401 GECA 2,760,980
41 Colesville Towers MD 20910 GECA 12,609,573
42 North Pointe Apartments NC 28213 GECA 11,324,000
45 The Mosby Building & Apartments VA 22030 GECA 10,877,000
48 U-Haul - Rusfield MA 02118 GECA 4,360,058
49 U-Haul - San Clemente CA 92672 GECA 2,837,732
50 U-Haul - East Colonial FL 32803 GECA 1,891,822
51 U-Haul - MacArthur Park OK 73132 GECA 1,182,388
52 Park Knolls Apartments CA 95382 GECA 10,200,000
54 U-Haul - Dublin CA 94566 GECA 3,217,246
55 U-Haul - Northridge CA 91325 GECA 2,618,838
56 U-Haul - Orange Park FL 32065 GECA 1,898,175
57 U-Haul - Tulsa OK 74146 GECA 1,891,741
58 Cherry Knolls Shopping Center CO 80122 GECA 9,636,000
65 Hazelcrest Place MI 48030 GECA 9,120,000
66 BJ's Plaza Shopping Center FL 33351 GECA 9,100,000
68 U-Haul - Margate FL 33063 GECA 3,365,312
69 U-Haul - Copperfield TX 77095 GECA 1,945,150
70 U-Haul - Hampton VA 23666 GECA 1,817,269
71 U-Haul - Lodi CA 95240 GECA 1,817,269
72 Fashion Outlet Center AL 35957 GECA 8,650,000
73 Tivoli Apartments FL 32608 GECA 8,200,000
75 1384-1450 Park Avenue RI 02895 GECA 4,183,511
76 Rojacks Supermarket/CVS Pharmacy MA 02771 GECA 2,290,592
77 Trucchi's Supermarket MA 02741 GECA 1,725,897
79 Carrollton Place Apartments GA 30117 GECA 8,000,000
80 Welshwood Apartments PA 19114 GECA 7,944,000
83 294-306A Harvard Street MA 02146 GECA 7,820,000
87 Mesa Dunes Mobile Home Park AZ 85207 GECA 7,600,000
88 Pleasant Hill Executive Park CA 94523 GECA 7,524,000
89 Best Western - Stratford Inn CA 92014 GECA 7,140,000
91 Country Corners Apartments OH 43220 GECA 7,125,000
92 Bell Palm Plaza CA 90201 GECA 7,006,000
93 Pleasant Run Apartments TX 75146 GECA 6,880,000
94 Chalet Apartments & Commercial Plaza NE 68164 GECA 6,900,000
96 Hampton Inn - Anchorage AK 99503 GECA 6,500,000
97 Pacific Isle Apartments CA 91791 GECA 6,450,000
98 Sunset Crest Apartments CA 91790 GECA 6,450,000
100 Hampton Inn & Suites - Annapolis MD 20401 GECA 6,400,000
101 Carlisle Commerce Center PA 17404 GECA 6,383,000
104 Village Green Plaza Shopping Center TX 77379 GECA 6,000,000
105 South Bank Riverwalk Retail TX 78205 GECA 6,000,000
126 The Plaza Apartments CA 92262 GECA 5,161,000
130 Westridge Marketplace NC 28715 GECA 5,040,000
132 Cypress Center CA 90630 GECA 5,000,000
133 Best Western - Miramar CA 92126 GECA 4,900,000
134 Garden City Tower MI 48135 GECA 4,900,000
138 8800 Roswell Road Office Park GA 30350 GECA 4,403,000
139 Turf Mobile Manor AZ 85023 GECA 4,320,000
140 Oakwood Village Apartments TX 77630 GECA 4,240,000
143 Comfort Inn - Augusta ME 04330 GECA 4,009,000
144 220 Jackson Street CA 94111 GECA 3,995,000
146 75 Canton Office Park GA 30066 GECA 3,961,000
148 Emerald Center CA 91750 GECA 3,805,000
152 Hampton Inn - Louisville CO 80027 GECA 3,600,000
153 Holiday Inn - Augusta ME 04330 GECA 3,596,000
154 Nassau Bay Village Apartments TX 77058 GECA 3,577,832
159 Scenic View Apartments CA 92311 GECA 3,467,000
162 Owens Corning Manufacturing Warehouse TX 78130 GECA 3,500,000
167 3005 Peachtree Road GA 30305 GECA 3,227,000
168 Hampton Inn - Columbus East OH 43147 GECA 3,224,000
169 Newport Towers VA 23607 GECA 3,200,000
171 Soniat House Hotel LA 70116 GECA 3,200,000
172 Fairview Market SC 29680 GECA 3,200,000
174 Embassy Building DC 20036 GECA 3,100,000
175 Park Terrace Apartments CA 91710 GECA 3,080,000
176 Westheimer Plaza Shopping Center TX 77057 GECA 3,077,000
178 Woodspear/Vista Flores Apartments CA 92069 GECA 3,000,000
179 Clarendon CVS VA 22201 GECA 3,000,000
180 A Storage Place Phases I & II FL 33311 GECA 2,925,000
183 Crescent View Apartments TX 75219 GECA 2,809,000
184 Comfort Suites Intercontinental Plaza TX 77032 GECA 2,800,000
186 Blue Bell Shopping Center PA 19153 GECA 2,720,000
187 Sun Plaza CO 80123 GECA 2,715,000
190 Kmart - Columbus OH 43081 GECA 2,660,000
191 Briarwood Mobile Home Park FL 33467 GECA 2,652,000
193 Forest Edge Apartments OH 43230 GECA 2,642,000
194 Sonora Crossroads CA 95370 GECA 2,567,000
198 Preston Royal Office Park TX 75230 GECA 2,500,000
203 Rustic Ridge Apartments OH 43227 GECA 2,460,000
204 Heritage Square Retail Center CA 93701 GECA 2,433,000
210 Meadowood Apartments CA 91740 GECA 2,368,000
211 Country Club Corner Retail Center CO 80524 GECA 2,350,000
213 Esprit Office Building TX 78746 GECA 2,323,000
216 Another Attic Self Storage TX 79109 GECA 2,240,000
217 Raintree Apartments OH 43229 GECA 2,200,000
220 Preston Plaza TX 75252 GECA 2,125,000
221 U.S. Storage Centers CA 92870 GECA 2,122,000
223 A-1 Mini Storage CA 92703 GECA 2,000,000
225 Plantation Xtra Storage FL 33322 GECA 2,000,000
233 Sixth & Gass Office Building NV 89101 GECA 1,969,000
234 Rancho Los Amigos AZ 85704 GECA 1,920,000
235 Savemart Shopping Center CA 94565 GECA 1,903,000
238 Everhart Place Apartments TX 78413 GECA 1,840,000
239 West 34th Self Storage TX 79109 GECA 1,837,000
242 North American/Lazy "R" Manufactured Housing Communities IA 50125 GECA 1,800,000
249 OfficeMax LA 71301 GECA 1,800,000
251 The Woods II Office Buildings TX 78759 GECA 1,700,000
252 Greenville Avenue B & G TX 75246 GECA 1,655,000
253 Boulder Ridge Apartments MI 49548 GECA 1,628,000
261 Rivermont Park SC 29210 GECA 1,500,000
262 SecurCare of Colorado Springs CO 80906 GECA 1,462,000
268 Kmart - Charleston WV 25304 GECA 1,409,000
272 Autumn Ridge Apartments TX 77521 GECA 1,350,000
<CAPTION>
Cut-Off Monthly Mortgage
Property Name Balance Payment Ratio
<S> <C> <C> <C> <C>
1 Oakwood Plaza 67,944,452 508,436.85 8.180%
10 Stone Fort Land - The Tallan Office Building & The Tallan Parking Garage 13,356,952 93,119.51 7.470%
11 Stone Fort Land - The Krystal Office Building 9,258,048 64,543.54 7.470%
12 Stone Fort Land - Riverside Center 8,514,000 59,356.32 7.470%
13 Stone Fort Land - Harrison Direct Warehouse 3,680,000 25,655.54 7.470%
14 Stone Fort Land - Tennessee American Water Company Office Building 1,326,000 9,244.36 7.470%
16 The Boardwalk 24,917,000 175,077.17 7.550%
20 Fox Run Shopping Center 24,000,000 168,798.62 7.560%
26 Highland Falls Apartments 21,259,030 146,026.61 7.300%
27 Rancho Ocaso 15,591,171 107,161.18 7.320%
28 The Court at Deptford II 15,387,641 110,690.02 7.780%
32 Sundance Village Apartments 13,799,510 98,859.80 6.990%
33 Lake Mead Pavilion Shopping Center 13,623,886 93,766.03 7.320%
35 Cole Spring Plaza 13,054,552 88,943.01 7.120%
36 Penney's Plaza 12,961,000 90,004.75 7.430%
37 Pines of Westbury 12,940,243 86,489.32 7.000%
39 River Haven Mobile Home Park 9,939,020 68,544.76 7.360%
40 Knollwood Estates Mobile Home Park 2,760,980 19,041.19 7.360%
41 Colesville Towers 12,457,514 83,384.31 6.940%
42 North Pointe Apartments 11,209,320 74,352.79 6.870%
45 The Mosby Building & Apartments 10,864,106 78,300.31 7.800%
48 U-Haul - Rusfield 4,360,058 33,074.67 7.940%
49 U-Haul - San Clemente 2,837,732 21,526.57 7.940%
50 U-Haul - East Colonial 1,891,822 14,351.05 7.940%
51 U-Haul - MacArthur Park 1,182,388 8,969.40 7.940%
52 Park Knolls Apartments 10,193,814 68,547.26 7.100%
54 U-Haul - Dublin 3,217,246 24,405.49 7.940%
55 U-Haul - Northridge 2,618,838 19,866.07 7.940%
56 U-Haul - Orange Park 1,898,175 14,399.24 7.940%
57 U-Haul - Tulsa 1,891,741 14,350.43 7.940%
58 Cherry Knolls Shopping Center 9,624,215 68,567.95 7.680%
65 Hazelcrest Place 9,063,117 60,064.33 6.900%
66 BJ's Plaza Shopping Center 9,030,538 60,481.42 6.990%
68 U-Haul - Margate 3,365,312 25,528.70 7.940%
69 U-Haul - Copperfield 1,945,150 14,755.59 7.940%
70 U-Haul - Hampton 1,817,269 13,785.50 7.940%
71 U-Haul - Lodi 1,817,269 13,785.50 7.940%
72 Fashion Outlet Center 8,636,259 63,350.08 7.980%
73 Tivoli Apartments 8,195,550 57,055.10 7.450%
75 1384-1450 Park Avenue 4,148,631 27,748.77 6.970%
76 Rojacks Supermarket/CVS Pharmacy 2,271,495 15,193.24 6.970%
77 Trucchi's Supermarket 1,711,508 11,447.68 6.970%
79 Carrollton Place Apartments 7,990,665 57,922.28 7.860%
80 Welshwood Apartments 7,934,876 57,847.84 7.920%
83 294-306A Harvard Street 7,811,042 56,999.25 7.930%
87 Mesa Dunes Mobile Home Park 7,585,381 52,103.39 7.300%
88 Pleasant Hill Executive Park 7,515,312 54,684.84 7.900%
89 Best Western - Stratford Inn 7,140,000 55,866.59 8.160%
91 Country Corners Apartments 7,033,257 47,116.04 6.940%
92 Bell Palm Plaza 6,997,910 50,919.99 7.900%
93 Pleasant Run Apartments 6,880,000 47,682.67 7.410%
94 Chalet Apartments & Commercial Plaza 6,829,146 45,028.81 6.810%
96 Hampton Inn - Anchorage 6,478,558 53,361.66 7.750%
97 Pacific Isle Apartments 6,450,000 44,922.80 7.460%
98 Sunset Crest Apartments 6,450,000 44,702.51 7.410%
100 Hampton Inn & Suites - Annapolis 6,400,000 49,353.85 7.990%
101 Carlisle Commerce Center 6,379,880 45,772.71 7.760%
104 Village Green Plaza Shopping Center 5,930,478 42,944.11 7.140%
105 South Bank Riverwalk Retail 5,888,781 45,088.32 6.600%
126 The Plaza Apartments 5,154,834 37,045.39 7.770%
130 Westridge Marketplace 5,033,708 35,586.17 7.600%
132 Cypress Center 4,962,517 37,471.49 7.660%
133 Best Western - Miramar 4,896,024 38,111.60 8.090%
134 Garden City Tower 4,869,438 32,271.41 6.900%
138 8800 Roswell Road Office Park 4,397,545 31,179.30 7.630%
139 Turf Mobile Manor 4,314,730 30,770.09 7.690%
140 Oakwood Village Apartments 4,237,646 29,299.08 7.380%
143 Comfort Inn - Augusta 4,001,738 31,501.88 8.210%
144 220 Jackson Street 3,990,264 28,758.83 7.800%
146 75 Canton Office Park 3,956,093 28,049.34 7.630%
148 Emerald Center 3,800,958 28,478.77 8.210%
152 Hampton Inn - Louisville 3,596,040 27,984.53 7.750%
153 Holiday Inn - Augusta 3,589,486 28,256.61 8.210%
154 Nassau Bay Village Apartments 3,553,801 22,900.70 6.610%
159 Scenic View Apartments 3,462,847 24,861.97 7.760%
162 Owens Corning Manufacturing Warehouse 3,348,357 34,460.57 7.120%
167 3005 Peachtree Road 3,223,458 23,881.36 8.090%
168 Hampton Inn - Columbus East 3,213,732 26,966.83 8.000%
169 Newport Towers 3,198,419 22,880.98 7.730%
171 Soniat House Hotel 3,194,261 25,251.79 8.260%
172 Fairview Market 3,168,561 21,289.68 7.000%
174 Embassy Building 3,094,676 22,123.15 7.710%
175 Park Terrace Apartments 3,080,000 21,346.31 7.410%
176 Westheimer Plaza Shopping Center 3,072,169 22,620.85 8.020%
178 Woodspear/Vista Flores Apartments 3,000,000 20,689.59 7.360%
179 Clarendon CVS 2,996,600 21,950.23 7.970%
180 A Storage Place Phases I & II 2,922,415 22,054.97 7.730%
183 Crescent View Apartments 2,807,555 19,852.95 7.610%
184 Comfort Suites Intercontinental Plaza 2,800,000 22,580.29 8.200%
186 Blue Bell Shopping Center 2,716,665 19,336.26 7.670%
187 Sun Plaza 2,713,737 19,732.77 7.900%
190 Kmart - Columbus 2,658,819 19,573.80 8.030%
191 Briarwood Mobile Home Park 2,652,000 18,779.81 7.630%
193 Forest Edge Apartments 2,637,527 18,945.87 7.760%
194 Sonora Crossroads 2,562,934 18,817.84 7.990%
198 Preston Royal Office Park 2,497,373 18,781.67 8.250%
203 Rustic Ridge Apartments 2,433,802 17,496.77 7.070%
204 Heritage Square Retail Center 2,429,359 18,158.73 8.180%
210 Meadowood Apartments 2,368,000 16,411.71 7.410%
211 Country Club Corner Retail Center 2,346,145 17,030.98 7.870%
213 Esprit Office Building 2,319,033 16,610.16 7.730%
216 Another Attic Self Storage 2,240,000 17,081.46 7.860%
217 Raintree Apartments 2,176,570 15,647.52 7.070%
220 Preston Plaza 2,122,687 15,770.63 8.120%
221 U.S. Storage Centers 2,121,009 15,408.07 7.890%
223 A-1 Mini Storage 2,000,000 15,119.71 7.760%
225 Plantation Xtra Storage 1,996,209 15,409.84 7.980%
233 Sixth & Gass Office Building 1,966,720 14,297.12 7.890%
234 Rancho Los Amigos 1,916,522 13,451.22 7.520%
235 Savemart Shopping Center 1,902,152 13,990.08 8.020%
238 Everhart Place Apartments 1,839,060 13,029.73 7.630%
239 West 34th Self Storage 1,837,000 14,008.32 7.860%
242 North American/Lazy "R" Manufactured Housing Communities 1,797,547 13,132.55 7.940%
249 OfficeMax 1,761,049 14,390.81 7.400%
251 The Woods II Office Buildings 1,699,212 12,367.50 7.910%
252 Greenville Avenue B & G 1,650,879 13,248.53 8.430%
253 Boulder Ridge Apartments 1,610,052 11,946.19 7.420%
261 Rivermont Park 1,468,887 11,629.48 7.000%
262 SecurCare of Colorado Springs 1,460,438 10,921.91 8.190%
268 Kmart - Charleston 1,408,375 10,368.23 8.030%
272 Autumn Ridge Apartments 1,323,711 10,859.00 7.480%
<CAPTION>
Original Remaining Maturity
Property Name Term Term Date
<S> <C> <C> <C> <C>
1 Oakwood Plaza 120 116 02/01/29
10 Stone Fort Land - The Tallan Office Building & The Tallan Parking Garage 120 120 06/01/09
11 Stone Fort Land - The Krystal Office Building 120 120 06/01/09
12 Stone Fort Land - Riverside Center 120 120 06/01/09
13 Stone Fort Land - Harrison Direct Warehouse 120 120 06/01/09
14 Stone Fort Land - Tennessee American Water Company Office Building 120 120 06/01/09
16 The Boardwalk 120 120 06/01/09
20 Fox Run Shopping Center 120 120 06/01/09
26 Highland Falls Apartments 120 117 03/01/09
27 Rancho Ocaso 120 119 05/01/09
28 The Court at Deptford II 120 118 04/01/09
32 Sundance Village Apartments 300 288 06/01/23
33 Lake Mead Pavilion Shopping Center 120 117 03/01/09
35 Cole Spring Plaza 144 130 04/01/28
36 Penney's Plaza 120 120 06/01/09
37 Pines of Westbury 120 114 12/01/28
39 River Haven Mobile Home Park 120 120 06/01/09
40 Knollwood Estates Mobile Home Park 120 120 06/01/09
41 Colesville Towers 120 106 04/01/28
42 North Pointe Apartments 180 167 05/01/28
45 The Mosby Building & Apartments 120 118 04/01/09
48 U-Haul - Rusfield 120 120 06/01/09
49 U-Haul - San Clemente 120 120 06/01/09
50 U-Haul - East Colonial 120 120 06/01/09
51 U-Haul - MacArthur Park 120 120 06/01/09
52 Park Knolls Apartments 120 119 05/01/09
54 U-Haul - Dublin 120 120 06/01/09
55 U-Haul - Northridge 120 120 06/01/09
56 U-Haul - Orange Park 120 120 06/01/09
57 U-Haul - Tulsa 120 120 06/01/09
58 Cherry Knolls Shopping Center 120 118 04/01/09
65 Hazelcrest Place 240 232 10/01/28
66 BJ's Plaza Shopping Center 180 170 08/01/28
68 U-Haul - Margate 120 120 06/01/09
69 U-Haul - Copperfield 120 120 06/01/09
70 U-Haul - Hampton 120 120 06/01/09
71 U-Haul - Lodi 120 120 06/01/09
72 Fashion Outlet Center 120 117 03/01/09
73 Tivoli Apartments 120 119 05/01/09
75 1384-1450 Park Avenue 180 169 07/01/28
76 Rojacks Supermarket/CVS Pharmacy 180 169 07/01/28
77 Trucchi's Supermarket 180 169 07/01/28
79 Carrollton Place Apartments 120 118 04/01/09
80 Welshwood Apartments 120 118 04/01/09
83 294-306A Harvard Street 120 118 04/01/09
87 Mesa Dunes Mobile Home Park 120 117 03/01/09
88 Pleasant Hill Executive Park 120 118 04/01/09
89 Best Western - Stratford Inn 120 120 06/01/09
91 Country Corners Apartments 120 104 02/01/28
92 Bell Palm Plaza 120 118 04/01/09
93 Pleasant Run Apartments 120 120 06/01/09
94 Chalet Apartments & Commercial Plaza 180 167 05/01/28
96 Hampton Inn - Anchorage 120 118 04/01/09
97 Pacific Isle Apartments 120 120 06/01/09
98 Sunset Crest Apartments 120 120 06/01/09
100 Hampton Inn & Suites - Annapolis 120 120 06/01/09
101 Carlisle Commerce Center 84 83 05/01/06
104 Village Green Plaza Shopping Center 156 146 08/01/23
105 South Bank Riverwalk Retail 240 231 09/01/18
126 The Plaza Apartments 120 118 04/01/09
130 Westridge Marketplace 120 118 04/01/09
132 Cypress Center 180 173 11/01/13
133 Best Western - Miramar 120 119 05/01/09
134 Garden City Tower 240 232 10/01/28
138 8800 Roswell Road Office Park 120 118 04/01/09
139 Turf Mobile Manor 120 118 04/01/09
140 Oakwood Village Apartments 84 83 05/01/06
143 Comfort Inn - Augusta 120 118 04/01/09
144 220 Jackson Street 120 118 04/01/09
146 75 Canton Office Park 120 118 04/01/09
148 Emerald Center 120 118 04/01/09
152 Hampton Inn - Louisville 120 119 05/01/09
153 Holiday Inn - Augusta 120 118 04/01/09
154 Nassau Bay Village Apartments 60 52 10/01/28
159 Scenic View Apartments 120 118 04/01/09
162 Owens Corning Manufacturing Warehouse 137 126 12/01/09
167 3005 Peachtree Road 120 118 04/01/09
168 Hampton Inn - Columbus East 120 118 04/01/09
169 Newport Towers 120 119 05/01/09
171 Soniat House Hotel 120 118 04/01/09
172 Fairview Market 240 227 05/01/28
174 Embassy Building 120 117 03/01/09
175 Park Terrace Apartments 120 120 06/01/09
176 Westheimer Plaza Shopping Center 120 117 03/01/09
178 Woodspear/Vista Flores Apartments 120 120 06/01/09
179 Clarendon CVS 120 118 04/01/09
180 A Storage Place Phases I & II 120 119 05/01/09
183 Crescent View Apartments 120 119 05/01/09
184 Comfort Suites Intercontinental Plaza 120 120 06/01/09
186 Blue Bell Shopping Center 120 118 04/01/09
187 Sun Plaza 120 119 05/01/09
190 Kmart - Columbus 120 119 05/01/09
191 Briarwood Mobile Home Park 120 120 06/01/09
193 Forest Edge Apartments 120 117 03/01/09
194 Sonora Crossroads 120 117 03/01/09
198 Preston Royal Office Park 120 118 04/01/09
203 Rustic Ridge Apartments 180 171 09/01/23
204 Heritage Square Retail Center 120 117 03/01/09
210 Meadowood Apartments 120 120 06/01/09
211 Country Club Corner Retail Center 120 117 03/01/09
213 Esprit Office Building 120 117 03/01/09
216 Another Attic Self Storage 120 120 06/01/09
217 Raintree Apartments 180 171 09/01/23
220 Preston Plaza 120 118 04/01/09
221 U.S. Storage Centers 120 119 05/01/09
223 A-1 Mini Storage 120 120 06/01/09
225 Plantation Xtra Storage 120 118 04/01/09
233 Sixth & Gass Office Building 120 118 04/01/09
234 Rancho Los Amigos 120 117 03/01/09
235 Savemart Shopping Center 120 119 05/01/09
238 Everhart Place Apartments 120 119 05/01/09
239 West 34th Self Storage 120 120 06/01/09
242 North American/Lazy "R" Manufactured Housing Communities 120 118 04/01/09
249 OfficeMax 180 168 06/01/18
251 The Woods II Office Buildings 120 119 05/01/09
252 Greenville Avenue B & G 120 117 03/01/09
253 Boulder Ridge Apartments 180 170 08/01/23
261 Rivermont Park 120 109 07/01/18
262 SecurCare of Colorado Springs 84 82 04/01/06
268 Kmart - Charleston 120 119 05/01/09
272 Autumn Ridge Apartments 240 229 07/01/18
<CAPTION>
Original Remaining
Property Name Amortization Amortization ARD Date
<S> <C> <C> <C> <C>
1 Oakwood Plaza 360 356 02/01/09
10 Stone Fort Land - The Tallan Office Building & The Tallan Parking Garage 360 360
11 Stone Fort Land - The Krystal Office Building 360 360
12 Stone Fort Land - Riverside Center 360 360
13 Stone Fort Land - Harrison Direct Warehouse 360 360
14 Stone Fort Land - Tennessee American Water Company Office Building 360 360
16 The Boardwalk 360 360
20 Fox Run Shopping Center 360 360
26 Highland Falls Apartments 360 357
27 Rancho Ocaso 360 359
28 The Court at Deptford II 360 358
32 Sundance Village Apartments 300 288
33 Lake Mead Pavilion Shopping Center 360 357
35 Cole Spring Plaza 360 346 04/01/10
36 Penney's Plaza 360 360
37 Pines of Westbury 360 354 12/01/08
39 River Haven Mobile Home Park 360 360
40 Knollwood Estates Mobile Home Park 360 360
41 Colesville Towers 360 346 04/01/08
42 North Pointe Apartments 360 347 05/01/13
45 The Mosby Building & Apartments 360 358
48 U-Haul - Rusfield 312 312
49 U-Haul - San Clemente 312 312
50 U-Haul - East Colonial 312 312
51 U-Haul - MacArthur Park 312 312
52 Park Knolls Apartments 360 359
54 U-Haul - Dublin 312 312
55 U-Haul - Northridge 312 312
56 U-Haul - Orange Park 312 312
57 U-Haul - Tulsa 312 312
58 Cherry Knolls Shopping Center 360 358
65 Hazelcrest Place 360 352 10/01/18
66 BJ's Plaza Shopping Center 360 350 08/01/13
68 U-Haul - Margate 312 312
69 U-Haul - Copperfield 312 312
70 U-Haul - Hampton 312 312
71 U-Haul - Lodi 312 312
72 Fashion Outlet Center 360 357
73 Tivoli Apartments 360 359
75 1384-1450 Park Avenue 360 349 07/01/13
76 Rojacks Supermarket/CVS Pharmacy 360 349 07/01/13
77 Trucchi's Supermarket 360 349 07/01/13
79 Carrollton Place Apartments 360 358
80 Welshwood Apartments 360 358
83 294-306A Harvard Street 360 358
87 Mesa Dunes Mobile Home Park 360 357
88 Pleasant Hill Executive Park 360 358
89 Best Western - Stratford Inn 300 300
91 Country Corners Apartments 360 344 02/01/08
92 Bell Palm Plaza 360 358
93 Pleasant Run Apartments 360 360
94 Chalet Apartments & Commercial Plaza 360 347 05/01/13
96 Hampton Inn - Anchorage 240 238
97 Pacific Isle Apartments 360 360
98 Sunset Crest Apartments 360 360
100 Hampton Inn & Suites - Annapolis 300 300
101 Carlisle Commerce Center 360 359
104 Village Green Plaza Shopping Center 300 290 08/01/11
105 South Bank Riverwalk Retail 240 231
126 The Plaza Apartments 360 358
130 Westridge Marketplace 360 358
132 Cypress Center 300 293
133 Best Western - Miramar 300 299
134 Garden City Tower 360 352 10/01/18
138 8800 Roswell Road Office Park 360 358
139 Turf Mobile Manor 360 358
140 Oakwood Village Apartments 360 359
143 Comfort Inn - Augusta 300 298
144 220 Jackson Street 360 358
146 75 Canton Office Park 360 358
148 Emerald Center 360 358
152 Hampton Inn - Louisville 276 275
153 Holiday Inn - Augusta 300 298
154 Nassau Bay Village Apartments 360 352 10/01/03
159 Scenic View Apartments 360 358
162 Owens Corning Manufacturing Warehouse 156 145
167 3005 Peachtree Road 360 358
168 Hampton Inn - Columbus East 240 238
169 Newport Towers 360 359
171 Soniat House Hotel 300 298
172 Fairview Market 360 347 05/01/18
174 Embassy Building 360 357
175 Park Terrace Apartments 360 360
176 Westheimer Plaza Shopping Center 360 357
178 Woodspear/Vista Flores Apartments 360 360
179 Clarendon CVS 360 358
180 A Storage Place Phases I & II 300 299
183 Crescent View Apartments 360 359
184 Comfort Suites Intercontinental Plaza 276 276
186 Blue Bell Shopping Center 360 358
187 Sun Plaza 360 359
190 Kmart - Columbus 360 359
191 Briarwood Mobile Home Park 360 360
193 Forest Edge Apartments 360 357
194 Sonora Crossroads 360 357
198 Preston Royal Office Park 360 358
203 Rustic Ridge Apartments 300 291 09/01/13
204 Heritage Square Retail Center 360 357
210 Meadowood Apartments 360 360
211 Country Club Corner Retail Center 360 357
213 Esprit Office Building 360 357
216 Another Attic Self Storage 300 300
217 Raintree Apartments 300 291 09/01/13
220 Preston Plaza 360 358
221 U.S. Storage Centers 360 359
223 A-1 Mini Storage 300 300
225 Plantation Xtra Storage 300 298
233 Sixth & Gass Office Building 360 358
234 Rancho Los Amigos 360 357
235 Savemart Shopping Center 360 359
238 Everhart Place Apartments 360 359
239 West 34th Self Storage 300 300
242 North American/Lazy "R" Manufactured Housing Communities 360 358
249 OfficeMax 240 228 06/01/13
251 The Woods II Office Buildings 360 359
252 Greenville Avenue B & G 300 297
253 Boulder Ridge Apartments 300 290 08/01/13
261 Rivermont Park 240 229 07/01/08
262 SecurCare of Colorado Springs 360 358
268 Kmart - Charleston 360 359
272 Autumn Ridge Apartments 240 229
<CAPTION>
Property Name Prepayment Provision
<S> <C> <C>
1 Oakwood Plaza L (9.75), O (0.25)
10 Stone Fort Land - The Tallan Office Building & The Tallan Parking Garage L (9.75), O (0.25)
11 Stone Fort Land - The Krystal Office Building L (9.75), O (0.25)
12 Stone Fort Land - Riverside Center L (9.75), O (0.25)
13 Stone Fort Land - Harrison Direct Warehouse L (9.75), O (0.25)
14 Stone Fort Land - Tennessee American Water Company Office Building L (9.75), O (0.25)
16 The Boardwalk L (9.75), O (0.25)
20 Fox Run Shopping Center L (9.75), O (0.25)
26 Highland Falls Apartments L (9.67), O (0.33)
27 Rancho Ocaso L (9.75), O (0.25)
28 The Court at Deptford II L (9.75), O (0.25)
32 Sundance Village Apartments L (7.83), YM 1% (16.92), O (0.25)
33 Lake Mead Pavilion Shopping Center L (9.75), O (0.25)
35 Cole Spring Plaza L (6), YM 1% (5.75), O (0.25)
36 Penney's Plaza L (9.75), O (0.25)
37 Pines of Westbury L (9.75), O (0.25)
39 River Haven Mobile Home Park L (9.75), O (0.25)
40 Knollwood Estates Mobile Home Park L (9.75), O (0.25)
41 Colesville Towers L (8), YM 1% (1.75), O (0.25)
42 North Pointe Apartments L (4.92), YM 1% (9.83), O (0.25)
45 The Mosby Building & Apartments L (9.75), O (0.25)
48 U-Haul - Rusfield L (9.75), O (0.25)
49 U-Haul - San Clemente L (9.75), O (0.25)
50 U-Haul - East Colonial L (9.75), O (0.25)
51 U-Haul - MacArthur Park L (9.75), O (0.25)
52 Park Knolls Apartments L (9.75), O (0.25)
54 U-Haul - Dublin L (9.75), O (0.25)
55 U-Haul - Northridge L (9.75), O (0.25)
56 U-Haul - Orange Park L (9.75), O (0.25)
57 U-Haul - Tulsa L (9.75), O (0.25)
58 Cherry Knolls Shopping Center L (9.75), O (0.25)
65 Hazelcrest Place L (19.75), O (0.25)
66 BJ's Plaza Shopping Center L (14.67), O (0.33)
68 U-Haul - Margate L (9.75), O (0.25)
69 U-Haul - Copperfield L (9.75), O (0.25)
70 U-Haul - Hampton L (9.75), O (0.25)
71 U-Haul - Lodi L (9.75), O (0.25)
72 Fashion Outlet Center L (9.75), O (0.25)
73 Tivoli Apartments L (9.75), O (0.25)
75 1384-1450 Park Avenue L (4.92), YM 1% (9.83), O (0.25)
76 Rojacks Supermarket/CVS Pharmacy L (4.92), YM 1% (9.83), O (0.25)
77 Trucchi's Supermarket L (4.92), YM 1% (9.83), O (0.25)
79 Carrollton Place Apartments L (9.67), O (0.33)
80 Welshwood Apartments L (9.75), O (0.25)
83 294-306A Harvard Street L (9.75), O (0.25)
87 Mesa Dunes Mobile Home Park L (9.75), O (0.25)
88 Pleasant Hill Executive Park L (9.5), O (0.5)
89 Best Western - Stratford Inn L (9.75), O (0.25)
91 Country Corners Apartments L (9.75), O (0.25)
92 Bell Palm Plaza L (9.75), O (0.25)
93 Pleasant Run Apartments L (9.75), O (0.25)
94 Chalet Apartments & Commercial Plaza L (14.5), O (0.5)
96 Hampton Inn - Anchorage L (9.5), O (0.5)
97 Pacific Isle Apartments L (9.5), O (0.5)
98 Sunset Crest Apartments L (9.5), O (0.5)
100 Hampton Inn & Suites - Annapolis L (9.75), O (0.25)
101 Carlisle Commerce Center L (6.75), O (0.25)
104 Village Green Plaza Shopping Center L (12.75), O (0.25)
105 South Bank Riverwalk Retail L (3), YM 1% (16.75), O (0.25)
126 The Plaza Apartments L (9.75), O (0.25)
130 Westridge Marketplace L (9.75), O (0.25)
132 Cypress Center L (3), YM 1% (11.75), O (0.25)
133 Best Western - Miramar L (9.75), O (0.25)
134 Garden City Tower L (19.75), O (0.25)
138 8800 Roswell Road Office Park L (9.75), O (0.25)
139 Turf Mobile Manor L (9.75), O (0.25)
140 Oakwood Village Apartments L (4), YM 1% (2.5), O (0.5)
143 Comfort Inn - Augusta L (9.75), O (0.25)
144 220 Jackson Street L (9.75), O (0.25)
146 75 Canton Office Park L (9.75), O (0.25)
148 Emerald Center L (9.75), O (0.25)
152 Hampton Inn - Louisville L (9.5), O (0.5)
153 Holiday Inn - Augusta L (9.75), O (0.25)
154 Nassau Bay Village Apartments L (4.75), O (0.25)
159 Scenic View Apartments L (9.75), O (0.25)
162 Owens Corning Manufacturing Warehouse L (11.17), O (0.25)
167 3005 Peachtree Road L (9.75), O (0.25)
168 Hampton Inn - Columbus East L (9.75), O (0.25)
169 Newport Towers L (9.75), O (0.25)
171 Soniat House Hotel L (9.75), O (0.25)
172 Fairview Market L (19.75), O (0.25)
174 Embassy Building L (9.75), O (0.25)
175 Park Terrace Apartments L (9.5), O (0.5)
176 Westheimer Plaza Shopping Center L (9.75), O (0.25)
178 Woodspear/Vista Flores Apartments L (9.75), O (0.25)
179 Clarendon CVS L (9.75), O (0.25)
180 A Storage Place Phases I & II L (9.75), O (0.25)
183 Crescent View Apartments L (9.5), O (0.5)
184 Comfort Suites Intercontinental Plaza L (9.75), O (0.25)
186 Blue Bell Shopping Center L (9.67), O (0.33)
187 Sun Plaza L (9.75), O (0.25)
190 Kmart - Columbus L (9.75), O (0.25)
191 Briarwood Mobile Home Park L (9.25), O (0.75)
193 Forest Edge Apartments L (9.75), O (0.25)
194 Sonora Crossroads L (9.75), O (0.25)
198 Preston Royal Office Park L (9.75), O (0.25)
203 Rustic Ridge Apartments L (14.75), O (0.25)
204 Heritage Square Retail Center L (9.75), O (0.25)
210 Meadowood Apartments L (9.5), O (0.5)
211 Country Club Corner Retail Center L (9.75), O (0.25)
213 Esprit Office Building L (9.75), O (0.25)
216 Another Attic Self Storage L (9.75), O (0.25)
217 Raintree Apartments L (14.75), O (0.25)
220 Preston Plaza L (9.75), O (0.25)
221 U.S. Storage Centers L (9.75), O (0.25)
223 A-1 Mini Storage L (9.5), O (0.5)
225 Plantation Xtra Storage L (9.75), O (0.25)
233 Sixth & Gass Office Building L (9.75), O (0.25)
234 Rancho Los Amigos L (9.75), O (0.25)
235 Savemart Shopping Center L (9.75), O (0.25)
238 Everhart Place Apartments L (9.75), O (0.25)
239 West 34th Self Storage L (9.75), O (0.25)
242 North American/Lazy "R" Manufactured Housing Communities L (9.25), O (0.75)
249 OfficeMax L (14.75), O (0.25)
251 The Woods II Office Buildings L (9.75), O (0.25)
252 Greenville Avenue B & G L (9.75), O (0.25)
253 Boulder Ridge Apartments L (14.67), O (0.33)
261 Rivermont Park L (9.75), O (0.25)
262 SecurCare of Colorado Springs L (6.75), O (0.25)
268 Kmart - Charleston L (9.75), O (0.25)
272 Autumn Ridge Apartments L (19.75), O (0.25)
<CAPTION>
Defeasance Fee/ Interest
Property Name (Yes/No/Both) Leasehold Calculation
<S> <C> <C> <C> <C>
1 Oakwood Plaza Yes Fee Actual/360
10 Stone Fort Land - The Tallan Office Building & The Tallan Parking Garage Yes Fee Actual/360
11 Stone Fort Land - The Krystal Office Building Yes Fee Actual/360
12 Stone Fort Land - Riverside Center Yes Fee Actual/360
13 Stone Fort Land - Harrison Direct Warehouse Yes Fee Actual/360
14 Stone Fort Land - Tennessee American Water Company Office Building Yes Fee Actual/360
16 The Boardwalk Yes Fee Actual/360
20 Fox Run Shopping Center Yes Fee Actual/360
26 Highland Falls Apartments Yes Fee Actual/360
27 Rancho Ocaso Yes Fee Actual/360
28 The Court at Deptford II Yes Fee/Leasehold Actual/360
32 Sundance Village Apartments No Fee Actual/360
33 Lake Mead Pavilion Shopping Center Yes Fee Actual/360
35 Cole Spring Plaza No Fee 30/360
36 Penney's Plaza Yes Fee Actual/360
37 Pines of Westbury Yes Fee Actual/360
39 River Haven Mobile Home Park Yes Fee Actual/360
40 Knollwood Estates Mobile Home Park Yes Fee Actual/360
41 Colesville Towers No Fee 30/360
42 North Pointe Apartments No Fee Actual/360
45 The Mosby Building & Apartments Yes Fee Actual/360
48 U-Haul - Rusfield Yes Fee Actual/360
49 U-Haul - San Clemente Yes Fee Actual/360
50 U-Haul - East Colonial Yes Fee Actual/360
51 U-Haul - MacArthur Park Yes Fee Actual/360
52 Park Knolls Apartments Yes Fee Actual/360
54 U-Haul - Dublin Yes Fee Actual/360
55 U-Haul - Northridge Yes Fee Actual/360
56 U-Haul - Orange Park Yes Fee Actual/360
57 U-Haul - Tulsa Yes Fee Actual/360
58 Cherry Knolls Shopping Center Yes Fee Actual/360
65 Hazelcrest Place Yes Fee Actual/360
66 BJ's Plaza Shopping Center Yes Fee Actual/360
68 U-Haul - Margate Yes Fee Actual/360
69 U-Haul - Copperfield Yes Fee Actual/360
70 U-Haul - Hampton Yes Fee Actual/360
71 U-Haul - Lodi Yes Fee Actual/360
72 Fashion Outlet Center Yes Fee Actual/360
73 Tivoli Apartments Yes Fee Actual/360
75 1384-1450 Park Avenue No Fee Actual/360
76 Rojacks Supermarket/CVS Pharmacy No Fee Actual/360
77 Trucchi's Supermarket No Fee Actual/360
79 Carrollton Place Apartments Yes Fee Actual/360
80 Welshwood Apartments Yes Fee Actual/360
83 294-306A Harvard Street Yes Fee Actual/360
87 Mesa Dunes Mobile Home Park Yes Fee Actual/360
88 Pleasant Hill Executive Park Yes Fee Actual/360
89 Best Western - Stratford Inn Yes Fee Actual/360
91 Country Corners Apartments Yes Fee Actual/360
92 Bell Palm Plaza Yes Fee Actual/360
93 Pleasant Run Apartments Yes Fee Actual/360
94 Chalet Apartments & Commercial Plaza Yes Fee Actual/360
96 Hampton Inn - Anchorage Yes Fee Actual/360
97 Pacific Isle Apartments Yes Fee 30/360
98 Sunset Crest Apartments Yes Fee 30/360
100 Hampton Inn & Suites - Annapolis Yes Fee Actual/360
101 Carlisle Commerce Center Yes Fee Actual/360
104 Village Green Plaza Shopping Center Yes Fee Actual/360
105 South Bank Riverwalk Retail No Fee 30/360
126 The Plaza Apartments Yes Fee Actual/360
130 Westridge Marketplace Yes Fee Actual/360
132 Cypress Center No Fee Actual/360
133 Best Western - Miramar Yes Fee Actual/360
134 Garden City Tower Yes Fee Actual/360
138 8800 Roswell Road Office Park Yes Fee Actual/360
139 Turf Mobile Manor Yes Fee Actual/360
140 Oakwood Village Apartments No Fee Actual/360
143 Comfort Inn - Augusta Yes Fee Actual/360
144 220 Jackson Street Yes Fee Actual/360
146 75 Canton Office Park Yes Fee Actual/360
148 Emerald Center Yes Fee Actual/360
152 Hampton Inn - Louisville Yes Fee Actual/360
153 Holiday Inn - Augusta Yes Fee Actual/360
154 Nassau Bay Village Apartments Yes Fee Actual/360
159 Scenic View Apartments Yes Fee Actual/360
162 Owens Corning Manufacturing Warehouse Yes Fee Actual/360
167 3005 Peachtree Road Yes Fee Actual/360
168 Hampton Inn - Columbus East Yes Fee Actual/360
169 Newport Towers Yes Fee Actual/360
171 Soniat House Hotel Yes Fee Actual/360
172 Fairview Market Yes Fee Actual/360
174 Embassy Building Yes Fee Actual/360
175 Park Terrace Apartments Yes Fee 30/360
176 Westheimer Plaza Shopping Center Yes Fee Actual/360
178 Woodspear/Vista Flores Apartments Yes Fee Actual/360
179 Clarendon CVS Yes Fee Actual/360
180 A Storage Place Phases I & II Yes Fee Actual/360
183 Crescent View Apartments Yes Fee Actual/360
184 Comfort Suites Intercontinental Plaza Yes Fee Actual/360
186 Blue Bell Shopping Center Yes Fee Actual/360
187 Sun Plaza Yes Fee Actual/360
190 Kmart - Columbus Yes Fee Actual/360
191 Briarwood Mobile Home Park Yes Fee Actual/360
193 Forest Edge Apartments Yes Fee Actual/360
194 Sonora Crossroads Yes Fee Actual/360
198 Preston Royal Office Park Yes Leasehold Actual/360
203 Rustic Ridge Apartments Yes Fee Actual/360
204 Heritage Square Retail Center Yes Fee Actual/360
210 Meadowood Apartments Yes Leasehold 30/360
211 Country Club Corner Retail Center Yes Fee Actual/360
213 Esprit Office Building Yes Fee Actual/360
216 Another Attic Self Storage Yes Fee Actual/360
217 Raintree Apartments Yes Fee Actual/360
220 Preston Plaza Yes Fee Actual/360
221 U.S. Storage Centers Yes Fee Actual/360
223 A-1 Mini Storage Yes Fee 30/360
225 Plantation Xtra Storage Yes Fee Actual/360
233 Sixth & Gass Office Building Yes Fee Actual/360
234 Rancho Los Amigos Yes Fee Actual/360
235 Savemart Shopping Center Yes Fee Actual/360
238 Everhart Place Apartments Yes Fee Actual/360
239 West 34th Self Storage Yes Fee Actual/360
242 North American/Lazy "R" Manufactured Housing Communities Yes Fee 30/360
249 OfficeMax Yes Fee Actual/360
251 The Woods II Office Buildings Yes Fee Actual/360
252 Greenville Avenue B & G Yes Fee Actual/360
253 Boulder Ridge Apartments Yes Fee Actual/360
261 Rivermont Park Yes Fee Actual/360
262 SecurCare of Colorado Springs Yes Fee Actual/360
268 Kmart - Charleston Yes Leasehold Actual/360
272 Autumn Ridge Apartments Yes Fee Actual/360
</TABLE>
<PAGE>
EXHIBIT B-1C
SCHEDULE OF GSMC MORTGAGE LOANS
B-1C-1
<PAGE>
<TABLE>
<CAPTION>
Property Name Address City
------------- ------- ----
<S> <C> <C>
21 Two University Plaza 180 Temple Avenue Hackensack
22 800-900 Lanidex Plaza 800-900 Lanidex Plaza Parsippany-Troy Hills
23 140 Littleton Road 140 Littleton Road Parsippany-Troy Hills
30 Crossroads at Buckland Hills 430 Buckland Hills Drive & 110 Slater Street Manchester
31 Deerbrook Crossing Shopping Center 122-262 FM 1960 Humble
38 Bell Run Plaza 1218-1230 Welsh Road Montgomery Township
44 Mountain View Mobile Home Park 24303 Woolsey Canyon Road Canoga Park
46 211 South Gulph Road 211 South Gulph Road King of Prussia
47 Pinewood Apartments 3600 Swenson Avenue Las Vegas
53 Diamond Bar Towne Center 1100-1188 Diamond Bar Boulevard Diamond Bar
60 The Shadowbrook Apartments 3851 South Wynn Road Las Vegas
61 Delta Fair Shopping Center 2710-3040 Delta Fair Boulevard Antioch
74 Tetra - Chase Texas Bank Center 25025 Interstate Highway 45 North The Woodlands
81 Summit Square Shopping Center 3203-3243 SW Freeway Houston
82 Park Ridge Apartments 2501 Park Ridge Court Fort Worth
86 Industrial Warehouse 4240 West 190th Street Torrance
90 Silverside-Carr Corporate Center 409 Silverside Road Wilmington
95 West Ashley Shoppes Shopping Center 946 Orleans Road Charleston
99 Skyline Apartments 4700 Wimbelton Way Dallas
103 Batavia Wood Medical Center 845 West La Veta Avenue Orange
124 El Monte Shopping Center Dunlap & North 19th Avenue Phoenix
125 Casa Real Apartments 3816 North 83rd Avenue Phoenix
128 Beechnut Village Shopping Center 8145 Highway 6 South Houston
135 Tradewinds Apartments 1245 Palm Bay Road Melbourne
141 La Salle Crossing Apartments 1600 La Salle Drive Sherman
142 Wynnewood Greens Apartments 2415 Allenbrook Drive Allentown
145 Weis Plaza P.A. Route 222 & South Kemp Road Kutztown
151 HealthSouth Medical Plaza 10615 Montgomery Road Cincinnati
155 West Knoll Apartments 260 Elkton Road Newark
157 Parkway Shopping Center 400 North Park Avenue Breckenridge
164 Old Florida Plaza 4505-4579 Pine Island Road Sunrise
165 Arrowhead Creekside Center 7200 West Bell Road Glendale
166 Holiday Inn - Clovis 2700 East Mabry Drive Clovis
177 129-133 West 29th Street 129-133 West 29th Street New York
182 The Treasury Center 10 Crested Butte Way Mt. Crested Butte
185 Cottonwood Medical & Dental Center 4301 North MacArthur Boulevard Irving
189 Colima Plaza 20627 Golden Springs Drive Diamond Bar
192 Ohio Valley Nursing Home 146 Nicolette Road Parkersburg
199 Regent Place Office Building 1304 West Walnut Hill Lane Irving
201 Woodside Apartments 13660 C.F. Hawn Freeway Dallas
215 Broussard Village Shopping Center LA Highway 182 & La Neuville Road Broussard
218 Jeffco Plaza 1661 and 1671 South Research Loop Tucson
219 Ramada Inn - Chatsworth 21340 Devonshire Street Chatsworth
241 Corona Industrial Center 226-232 North Sherman Avenue Corona
248 Kingsley Business Center 2714-2734 West Kingsley Road Garland
271 CTC II Building 382 South Arthur Avenue Louisville
<CAPTION>
Property Name County State Zip Code Originator Original Loan Balance
------------- ------ ----- -------- ---------- ---------------------
<S> <C> <C> <C> <C> <C>
21 Two University Plaza Bergen NJ 07601 GSMC 12,001,734
22 800-900 Lanidex Plaza Morris NJ 07054 GSMC 9,637,272
23 140 Littleton Road Morris NJ 07054 GSMC 1,760,994
30 Crossroads at Buckland Hills Hartford CT 06040 GSMC 14,800,000
31 Deerbrook Crossing Shopping Center Harris TX 77073 GSMC 14,150,000
38 Bell Run Plaza Montgomery PA 19454 GSMC 12,800,000
44 Mountain View Mobile Home Park Los Angeles CA 91304 GSMC 11,000,000
46 211 South Gulph Road Montgomery PA 19406 GSMC 10,850,000
47 Pinewood Apartments Clark NV 89109 GSMC 10,600,000
53 Diamond Bar Towne Center Los Angeles CA 91765 GSMC 9,700,000
60 The Shadowbrook Apartments Clark NV 89109 GSMC 9,480,000
61 Delta Fair Shopping Center Contra Costa CA 94509 GSMC 9,200,000
74 Tetra - Chase Texas Bank Center Montgomery TX 77380 GSMC 8,185,000
81 Summit Square Shopping Center Harris TX 77027 GSMC 8,000,000
82 Park Ridge Apartments Tarrant TX 76110 GSMC 7,846,481
86 Industrial Warehouse Los Angeles CA 90503 GSMC 7,600,000
90 Silverside-Carr Corporate Center New Castle DE 19809 GSMC 7,140,000
95 West Ashley Shoppes Shopping Center Charleston SC 29407 GSMC 6,700,000
99 Skyline Apartments Dallas TX 75227 GSMC 6,500,000
103 Batavia Wood Medical Center Orange CA 92868 GSMC 5,950,000
124 El Monte Shopping Center Maricopa AZ 85021 GSMC 5,250,000
125 Casa Real Apartments Maricopa AZ 85033 GSMC 5,250,000
128 Beechnut Village Shopping Center Harris TX 77083 GSMC 5,075,000
135 Tradewinds Apartments Brevard FL 32905 GSMC 4,800,000
141 La Salle Crossing Apartments Grayson TX 75090 GSMC 4,258,000
142 Wynnewood Greens Apartments Lehigh PA 18103 GSMC 4,150,000
145 Weis Plaza Berks PA 19530 GSMC 4,000,000
151 HealthSouth Medical Plaza Hamilton OH 45242 GSMC 3,791,000
155 West Knoll Apartments New Castle DE 19711 GSMC 3,550,000
157 Parkway Shopping Center Summit CO 80424 GSMC 3,500,000
164 Old Florida Plaza Broward FL 33351 GSMC 3,300,000
165 Arrowhead Creekside Center Maricopa AZ 85308 GSMC 3,300,000
166 Holiday Inn - Clovis Curry NM 88101 GSMC 3,300,000
177 129-133 West 29th Street Manhattan NY 10001 GSMC 3,000,000
182 The Treasury Center Gunnison CO 81225 GSMC 2,850,000
185 Cottonwood Medical & Dental Center Dallas TX 75038 GSMC 2,800,000
189 Colima Plaza Los Angeles CA 91789 GSMC 2,700,000
192 Ohio Valley Nursing Home Wood WV 26101 GSMC 2,652,000
199 Regent Place Office Building Dallas TX 75038 GSMC 2,500,000
201 Woodside Apartments Dallas TX 75253 GSMC 2,483,000
215 Broussard Village Shopping Center Lafayette LA 70518 GSMC 2,245,000
218 Jeffco Plaza Pima AZ 85710 GSMC 2,150,000
219 Ramada Inn - Chatsworth Los Angeles CA 91311 GSMC 2,150,000
241 Corona Industrial Center Riverside CA 91720 GSMC 1,800,000
248 Kingsley Business Center Dallas TX 75041 GSMC 1,770,000
271 CTC II Building Boulder CO 80027 GSMC 1,350,000
<CAPTION>
Property Name Cut-Off Balance Monthly Payment Mortgage Rate Original Term Remaining Term
------------- --------------- --------------- ------------- ------------- --------------
<S> <C> <C> <C> <C> <C>
21 Two University Plaza 12,001,734 87,897.20 7.980% 120 120
22 800-900 Lanidex Plaza 9,637,272 70,580.57 7.980% 120 120
23 140 Littleton Road 1,760,994 12,897.01 7.980% 120 120
30 Crossroads at Buckland Hills 14,800,000 107,156.22 7.860% 120 120
31 Deerbrook Crossing Shopping Center 14,150,000 102,941.29 7.910% 120 120
38 Bell Run Plaza 12,754,463 89,411.83 7.490% 120 115
44 Mountain View Mobile Home Park 10,965,978 75,786.93 7.350% 120 116
46 211 South Gulph Road 10,831,786 78,030.86 7.790% 120 117
47 Pinewood Apartments 10,516,842 69,599.04 6.870% 120 110
53 Diamond Bar Towne Center 9,688,947 70,837.35 7.950% 120 118
60 The Shadowbrook Apartments 9,397,777 61,802.51 6.800% 120 109
61 Delta Fair Shopping Center 9,189,628 67,442.21 7.990% 120 118
74 Tetra - Chase Texas Bank Center 8,175,323 58,978.07 7.810% 120 118
81 Summit Square Shopping Center 7,856,262 61,779.65 6.850% 240 231
82 Park Ridge Apartments 7,846,481 56,131.00 7.650% 109 109
86 Industrial Warehouse 7,596,362 54,815.43 7.820% 120 119
90 Silverside-Carr Corporate Center 7,131,086 50,413.73 7.600% 120 118
95 West Ashley Shoppes Shopping Center 6,700,000 48,463.44 7.850% 120 120
99 Skyline Apartments 6,449,163 44,297.38 7.240% 120 109
103 Batavia Wood Medical Center 5,943,783 44,784.05 8.270% 120 118
124 El Monte Shopping Center 5,246,806 35,246.28 7.090% 120 119
125 Casa Real Apartments 5,211,823 34,226.07 6.800% 120 111
128 Beechnut Village Shopping Center 5,075,000 37,806.16 8.160% 120 120
135 Tradewinds Apartments 4,797,522 33,891.59 7.600% 120 119
141 La Salle Crossing Apartments 4,224,857 29,075.95 7.260% 120 109
142 Wynnewood Greens Apartments 4,137,687 29,188.10 7.560% 120 116
145 Weis Plaza 3,985,770 27,941.20 7.490% 120 115
151 HealthSouth Medical Plaza 3,789,173 27,290.29 7.800% 120 119
155 West Knoll Apartments 3,539,842 26,860.80 7.770% 120 117
157 Parkway Shopping Center 3,496,484 25,095.65 7.160% 120 119
164 Old Florida Plaza 3,298,443 23,892.94 7.860% 120 119
165 Arrowhead Creekside Center 3,296,149 23,892.94 7.860% 120 118
166 Holiday Inn - Clovis 3,294,731 27,310.33 8.830% 120 118
177 129-133 West 29th Street 3,000,000 23,253.94 8.050% 120 120
182 The Treasury Center 2,847,836 22,680.72 8.360% 120 119
185 Cottonwood Medical & Dental Center 2,796,894 20,643.09 8.050% 120 118
189 Colima Plaza 2,685,530 20,340.73 7.720% 120 115
192 Ohio Valley Nursing Home 2,641,125 20,874.27 8.230% 120 116
199 Regent Place Office Building 2,497,315 18,641.25 8.170% 120 118
201 Woodside Apartments 2,463,812 17,005.86 7.290% 120 109
215 Broussard Village Shopping Center 2,243,880 16,005.96 7.700% 120 119
218 Jeffco Plaza 2,142,990 16,455.50 8.450% 120 114
219 Ramada Inn - Chatsworth 2,139,190 16,722.44 8.090% 120 115
241 Corona Industrial Center 1,799,171 13,120.03 7.930% 120 119
248 Kingsley Business Center 1,763,753 13,148.40 8.130% 120 114
271 CTC II Building 1,348,498 9,943.49 8.040% 120 118
Original Remaining
Property Name Maturity Date Amortization Amortization ARD Date
------------- ------------- ------------ ------------ --------
<S> <C> <C> <C> <C>
21 Two University Plaza 06/01/09 360 360
22 800-900 Lanidex Plaza 06/01/09 360 360
23 140 Littleton Road 06/01/09 360 360
30 Crossroads at Buckland Hills 06/01/09 360 360
31 Deerbrook Crossing Shopping Center 06/01/09 360 360
38 Bell Run Plaza 01/01/09 360 355
44 Mountain View Mobile Home Park 02/01/09 360 356
46 211 South Gulph Road 03/01/09 360 357
47 Pinewood Apartments 08/01/08 360 350
53 Diamond Bar Towne Center 04/01/09 360 358
60 The Shadowbrook Apartments 07/01/08 360 349
61 Delta Fair Shopping Center 04/01/09 360 358
74 Tetra - Chase Texas Bank Center 04/01/09 360 358
81 Summit Square Shopping Center 09/01/18 240 231
82 Park Ridge Apartments 07/01/08 349 349
86 Industrial Warehouse 05/01/09 360 359
90 Silverside-Carr Corporate Center 04/01/09 360 358
95 West Ashley Shoppes Shopping Center 06/01/09 360 360
99 Skyline Apartments 07/01/08 360 349
103 Batavia Wood Medical Center 04/01/09 360 358
124 El Monte Shopping Center 05/01/09 360 359
125 Casa Real Apartments 09/01/08 360 351
128 Beechnut Village Shopping Center 06/01/09 360 360
135 Tradewinds Apartments 05/01/09 360 359
141 La Salle Crossing Apartments 07/01/08 360 349
142 Wynnewood Greens Apartments 02/01/09 360 356
145 Weis Plaza 01/01/09 360 355
151 HealthSouth Medical Plaza 05/01/09 360 359
155 West Knoll Apartments 03/01/09 300 297
157 Parkway Shopping Center 05/01/09 300 299
164 Old Florida Plaza 05/01/09 360 359
165 Arrowhead Creekside Center 04/01/09 360 358
166 Holiday Inn - Clovis 04/01/09 300 298
177 129-133 West 29th Street 06/01/09 300 300
182 The Treasury Center 05/01/09 300 299
185 Cottonwood Medical & Dental Center 04/01/09 360 358
189 Colima Plaza 01/01/09 300 295
192 Ohio Valley Nursing Home 02/01/09 300 296
199 Regent Place Office Building 04/01/09 360 358
201 Woodside Apartments 07/01/08 360 349
215 Broussard Village Shopping Center 05/01/09 360 359
218 Jeffco Plaza 12/01/08 360 354
219 Ramada Inn - Chatsworth 01/01/09 300 295
241 Corona Industrial Center 05/01/09 360 359
248 Kingsley Business Center 12/01/08 360 354
271 CTC II Building 04/01/09 360 358
<CAPTION>
Property Name Prepayment Provision Defeasance (Yes/No/Both) Fee/Leasehold
------------- -------------------- ------------------------ -------------
<S> <C> <C> <C>
21 Two University Plaza L (9.67), O (0.33) Yes Fee
22 800-900 Lanidex Plaza L (9.67), O (0.33) Yes Fee
23 140 Littleton Road L (9.67), O (0.33) Yes Fee
30 Crossroads at Buckland Hills L (9.67), O (0.33) Yes Fee
31 Deerbrook Crossing Shopping Center L (9.67), O (0.33) Yes Fee
38 Bell Run Plaza L (9.67), O (0.33) Yes Fee
44 Mountain View Mobile Home Park L (9.67), O (0.33) Yes Fee
46 211 South Gulph Road L (9.67), O (0.33) Yes Fee
47 Pinewood Apartments L (3.92), YM 1% (5.5), O (0.58) Both Fee
53 Diamond Bar Towne Center L (9.67), O (0.33) Yes Fee
60 The Shadowbrook Apartments L (3.92), YM 1% (5), O (1.08) Both Fee
61 Delta Fair Shopping Center L (9.67), O (0.33) Yes Fee
74 Tetra - Chase Texas Bank Center L (9.67), O (0.33) Yes Fee
81 Summit Square Shopping Center L (19.67), O (0.33) Yes Fee
82 Park Ridge Apartments L (8.92), O (0.17) Yes Fee
86 Industrial Warehouse L (9.67), O (0.33) Yes Fee
90 Silverside-Carr Corporate Center L (9.67), O (0.33) Yes Fee
95 West Ashley Shoppes Shopping Center L (9.67), O (0.33) Yes Fee
99 Skyline Apartments L (9.83), O (0.17) Yes Fee
103 Batavia Wood Medical Center L (9.67), O (0.33) Yes Fee
124 El Monte Shopping Center L (9.67), O (0.33) Yes Fee
125 Casa Real Apartments L (3.92), YM 1% (5.5), O (0.58) Both Fee
128 Beechnut Village Shopping Center L (9.67), O (0.33) Yes Fee
135 Tradewinds Apartments L (9.67), O (0.33) Yes Fee
141 La Salle Crossing Apartments L (9.83), O (0.17) Yes Fee
142 Wynnewood Greens Apartments L (9.67), O (0.33) Yes Fee
145 Weis Plaza L (9.67), O (0.33) Yes Fee
151 HealthSouth Medical Plaza L (9.67), O (0.33) Yes Leasehold
155 West Knoll Apartments L (9.67), O (0.33) Yes Fee
157 Parkway Shopping Center L (9.67), O (0.33) Yes Fee
164 Old Florida Plaza L (9.67), O (0.33) Yes Fee
165 Arrowhead Creekside Center L (9.67), O (0.33) Yes Fee
166 Holiday Inn - Clovis L (9.67), O (0.33) Yes Fee
177 129-133 West 29th Street L (9.67), O (0.33) Yes Fee
182 The Treasury Center L (9.67), O (0.33) Yes Fee
185 Cottonwood Medical & Dental Center L (9.67), O (0.33) Yes Fee
189 Colima Plaza L (9.67), O (0.33) Yes Fee
192 Ohio Valley Nursing Home L (9.67), O (0.33) Yes Fee
199 Regent Place Office Building L (9.67), O (0.33) Yes Fee
201 Woodside Apartments L (9.67), O (0.33) Yes Fee
215 Broussard Village Shopping Center L (9.67), O (0.33) Yes Fee
218 Jeffco Plaza L (9.42), O (0.58) Yes Fee
219 Ramada Inn - Chatsworth L (9.67), O (0.33) Yes Fee
241 Corona Industrial Center L (9.67), O (0.33) Yes Fee
248 Kingsley Business Center L (9.67), O (0.33) Yes Fee
271 CTC II Building L (9.67), O (0.33) Yes Fee
<CAPTION>
Property Name Interest Calculation
------------- --------------------
<S> <C>
21 Two University Plaza Actual/360
22 800-900 Lanidex Plaza Actual/360
23 140 Littleton Road Actual/360
30 Crossroads at Buckland Hills Actual/360
31 Deerbrook Crossing Shopping Center Actual/360
38 Bell Run Plaza Actual/360
44 Mountain View Mobile Home Park Actual/360
46 211 South Gulph Road Actual/360
47 Pinewood Apartments Actual/360
53 Diamond Bar Towne Center Actual/360
60 The Shadowbrook Apartments Actual/360
61 Delta Fair Shopping Center Actual/360
74 Tetra - Chase Texas Bank Center Actual/360
81 Summit Square Shopping Center Actual/360
82 Park Ridge Apartments Actual/360
86 Industrial Warehouse Actual/360
90 Silverside-Carr Corporate Center Actual/360
95 West Ashley Shoppes Shopping Center Actual/360
99 Skyline Apartments Actual/360
103 Batavia Wood Medical Center Actual/360
124 El Monte Shopping Center Actual/360
125 Casa Real Apartments Actual/360
128 Beechnut Village Shopping Center Actual/360
135 Tradewinds Apartments Actual/360
141 La Salle Crossing Apartments Actual/360
142 Wynnewood Greens Apartments Actual/360
145 Weis Plaza Actual/360
151 HealthSouth Medical Plaza Actual/360
155 West Knoll Apartments Actual/360
157 Parkway Shopping Center Actual/360
164 Old Florida Plaza Actual/360
165 Arrowhead Creekside Center Actual/360
166 Holiday Inn - Clovis Actual/360
177 129-133 West 29th Street Actual/360
182 The Treasury Center Actual/360
185 Cottonwood Medical & Dental Center Actual/360
189 Colima Plaza Actual/360
192 Ohio Valley Nursing Home Actual/360
199 Regent Place Office Building Actual/360
201 Woodside Apartments Actual/360
215 Broussard Village Shopping Center Actual/360
218 Jeffco Plaza Actual/360
219 Ramada Inn - Chatsworth Actual/360
241 Corona Industrial Center Actual/360
248 Kingsley Business Center Actual/360
271 CTC II Building Actual/360
</TABLE>
<PAGE>
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS TO
MORTGAGE FILE DELIVERY
<TABLE>
<CAPTION>
Property Name Loan Seller Doc Type Comment
------------- ----------- -------- -------
<S> <C> <C> <C>
Oakwood Plaza GECA Note Endorsement(s) is missing/incorrect
Herald Center Column Note Endorsement(s) is missing/incorrect
211 South Gulph Road GSMC Note Endorsement(s) is missing/incorrect
West Knoll Apartments GSMC Note Endorsement(s) is missing/incorrect
Kessel Food Market-Flushing Column Note Endorsement(s) is missing/incorrect
Texas City Medical Office Building Column Note Endorsement(s) is missing/incorrect
Hollyvale Apartments Column Note Endorsement(s) is missing/incorrect
Iroquois Apartments Column Note Endorsement(s) is missing/incorrect
</TABLE>
B-2-1
<PAGE>
EXHIBIT B-3
FORM OF CUSTODIAL CERTIFICATION
[date]
<TABLE>
<S> <C>
Column Financial Inc. DLJ Commercial Mortgage Corp.
3414 Peachtree Road, N.E. 277 Park Avenue
Suite 1140 New York, New York 10172
Atlanta, Georgia 30326-1113
GE Capital Loan Services, Inc.
Donaldson, Lufkin & Jenrette 363 North Sam Houston Parkway East,
Securities Corporation Suite 1200
277 Park Avenue Houston, Texas 77060
New York, New York 10172
GE Capital Access, Inc.
Goldman, Sachs & Co. 125 Park Avenue, 10th Floor
85 Broad Street New York, New York 10017
New York, New York 10004
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
</TABLE>
Re: DLJ Commercial Mortgage Corp, Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing
Agreement dated as of June 1, 1999 and related to the above-referenced
Certificates (the "Agreement"), Norwest Bank Minnesota, National Association, in
its capacity as trustee (the "Trustee"), hereby certifies as to each Original
Mortgage Loan subject to the Agreement (except as identified in the exception
report attached hereto) that: (i) the original Mortgage Note specified in clause
(i) of the definition of "Mortgage File" in the Agreement, the original or
certified copy of each recorded document specified in clauses (ii) through (v)
of the definition of "Mortgage File" in the Agreement, the original or copy of
the policy of title insurance specified in clause (vii) of the definition of
"Mortgage File" in the Agreement and each document specified in clause (viii) of
the definition of "Mortgage File" in the Agreement (without regard to the
parenthetical in such clause (viii)), is in its possession or the possession of
a Custodian on its behalf; (ii) if the date of this report is after January 1,
2000, the recordation/filing contemplated by Section 2.01(e) has been completed
(based solely on receipt by
B-3-1
<PAGE>
the Trustee of the particular recorded/filed documents); (iii) all documents
received by it or any Custodian with respect to such Mortgage Loan have been
reviewed by it or by such Custodian on its behalf and (A) appear regular on
their face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Borrower), (B) appear to have been executed
and (C) purport to relate to such Mortgage Loan; and (iv) based on the
examinations referred to in Section 2.02(a) and Section 2.02(b) of the Agreement
and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (ii)
(other than the zip code) and (vi)(B) of the definition of "Mortgage Loan
Schedule" in the Agreement accurately reflects the information set forth in the
Mortgage File.
Pursuant to Section 2.02(c) of the Agreement, neither the
Trustee nor the Custodian is under any obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, neither the Trustee nor the Custodian shall have any
responsibility for determining whether the text of any assignment or endorsement
is in proper or recordable form, whether the requisite recording of any document
is in accordance with the requirements of any applicable jurisdiction, or
whether a blanket assignment is permitted in any applicable jurisdiction.
Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to them in the Agreement.
Respectfully,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:
----------------------------
Name:
Title:
B-3-2
<PAGE>
EXHIBIT C
LETTER OF REPRESENTATIONS AMONG DEPOSITOR,
TRUSTEE AND INITIAL DEPOSITORY
C-1
<PAGE>
[LOGO]
BOOK-ENTRY-ONLY COLLATERALIZED MORTGAGE OBLIGATIONS (CMOs)
(WITHOUT OWNER OPTION TO REDEEM)
OTHER ASSET-BACKED SECURITIES/AND PASS-THROUGH CERTIFICATES
Letter of Representations
[To be Completed by Issuer and Agent]
DLJ Commercial Mortgage Corp.
[Name of Issuer]
Norwest Bank Minnesota, National Association
[Name of Agent]
June 21, 1999
[Date]
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street; 49th Floor
New York, NY 10041-0099
Re: DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2, Class S, Class A-lA, Class A-1B,
Class A-2, Class A-3, Class A-4, Class B-1 and Class B-2
[Issue Description]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the above-referenced issue (the "Securities"). Agent will act as
trustee, paying agent, fiscal agent, or other such agent of Issuer with respect
to the Securities pursuant to the Pooling and Servicing Agreement, or other such
document dated June 1, 1999 (the "Document"). DLJSC(1) and Goldman, Sachs & Co.
is distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
1. Prior to closing on the Securities on June 22, 1999, there shall be
deposited with DTC one Security certificate registered in the name of DTC's
nominee, Cede & Co., or for each
- ----------
(1) Donaldson, Lufkin & Jenrette Securities Corporation
<PAGE>
stated maturity of the Securities in the face amounts set forth on Schedule A
hereto, the total of which represents 100% of the principal amount of such
Securities. If, however, the aggregate principal amount of any maturity exceeds
$200 million, one certificate will be issued with respect to each $200 million
of principal amount and an additional certificate will be issued with respect to
any remaining principal amount. Each Security certificate shall bear the
following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by holders
of the Securities, Issuer or Agent shall establish a record date for such
purposes (with no provision for revocation of consents or votes by subsequent
holders) and shall, to the extent possible, send notice of such record date to
DTC not less than 15 calendar days in advance of such record date. Notices to
DTC pursuant to this Paragraph by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-6896 or (212) 709-6897, and receipt of such notices
shall be confirmed by telephoning (212) 709-6870. Notices to DTC pursuant to
this Paragraph by mail or by any other means shall be sent to DTC's
Reorganization Department as indicated in Paragraph 5.
4. In the event of a full or partial redemption, Issuer or Agent shall send
a notice to DTC specifying: (a) the amount of the redemption or refunding; (b)
in the case of a refunding. the maturity date(s) established under the
refunding; and (c) the date such notice is to be mailed to Security holders or
published (the "Publication Date"). Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be not less
than 30 days nor more than 60 days prior to the redemption date or, in the case
of an advance refunding, the date that the proceeds are deposited in escrow.
Notices to DTC pursuant to this Paragraph by telecopy shall be sent to DTC's
Call Notification Department at (516) 227-4039 or (516) 227-4190. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (516) 227-4070. Notices
to DTC pursuant to this Paragraph by mail or by any other means shall be sent
to:
Manager; Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
<PAGE>
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders specifing the terms of the tender and the Publication Date of
such notice shall be sent to DTC by a secure means in the manner set forth in
the preceding Paragraph. Notices to DTC pursuant to this Paragraph and notices
of other corporate actions by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-1093 or (212) 709-1094, and receipt of such notices
shall be confirmed by telephoning (212) 709-6884. Notices to DTC pursuant to the
above by mail or by any other means shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004-2695
6. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
7. Issuer or Agent shall send DTC written notice with respect to the dollar
amount per $1,000 original face value (or other minimum authorized denomination
if less than $1,000 face value) payable on each payment date allocated as to the
interest and principal portions thereof preferably 5, but not less than 2,
business days prior to such payment date. Such notices, which shall also contain
the current pool factor, any special adjustments to principal/interest rates
(e.g., adjustments due to deferred interest or shortfall), and Agent contact's
name and telephone number, shall be sent by telecopy to DTC's Dividend
Department at (212) 709-1723, or if by mail or by any other means to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York, NY 10004-2695
8. [Note: Issuer must represent one of the following, and cross out the
other:] [The interest accrual period is record date to record date.]
9. Issuer or Agent shall provide a written notice of interest payment
information to a standard interest announcement service subscribed to by DTC as
soon as the information is available. In the unlikely event that no such service
exists, Issuer or Agent shall provide such notice directly to DTC
electronically, as previously arranged by Issuer or Agent and DTC, as soon as
the information is available. If electronic transmission is not available,
absent any other arrangements between Issuer or Agent and DTC, such information
should be sent by telecopy to DTC's Dividend Department at (212) 709-1723 or
(212) 709-1686, and receipt of such notices shall be confirmed by telephoning
(212) 709-1270. Notices to DTC pursuant to the above by mail or by any other
means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
<PAGE>
10. Issuer or Agent shall provide CUSIP numbers for each issue for which
payment is being sent, as well as the dollar and cent amount of the payment for
each issue to DTC, no later than noon (Eastern Time) on the payment date.
11. lnterest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., nominee of DTC,
or its registered assigns, in same-day funds no later than 2:30 p.m. (Eastern
Time) on each payment date. Absent any other arrangements between Issuer or
Agent and DTC, such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Dividend Deposit Account # 066-026776
12. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Absent any other arrangements between Issuer or Agent and DTC, such funds
shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Redemption Deposit Account # 066-027306
13. Principal payments (plus accrued interest, if any) as the result of
optional tenders for purchase effected by means of DTC's Repayment Option
Procedures shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the first
payment date. Absent any other arrangements between Issuer or Agent and DTC,
such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Reorganization Deposit Account # 066-027608
14. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
15. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
16. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In
-4-
<PAGE>
such event, Issuer or Agent shall issue, transfer, and exchange certificates in
appropriate amounts, as required by DTC and others.
17. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any DTC Participant having Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
19. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
20. This Letter of Representations is governed by, and shall be construed
in accordance with, the laws of the State of New York.
21. The following riders, attached hereto, are hereby incorporated into
this Letter of Representations:
Rider Amending DTC Letter of Representations, ERISA Rider and "DWAC" Rider.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Notes: Very truly yours,
A. If there is an Agent (as defined in
this Letter of Representations), Agent DLJ Commercial Mortgage Corp.
as well as Issuer must sign this --------------------------------
Letter. If there is no Agent, in (Issuer)
signing this Letter Issuer itself
undertakes to perform all of the By: /s/ N. Dante LaRocca
obligations set forth herein. --------------------------------
(Authorized Officer's Signature)
B. Schedule B contains statements that
DTC believes accurately describe DTC, Norwest Bank Minnesota,
the method of effecting book entry National Association
transfers of securities distributed --------------------------------
through DTC, and certain related (Agent)
matters.
By: /s/ Leslie Gaskill
--------------------------------
(Authorized Officer's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/ Richard B. Jesson
-----------------------------
cc: Underwriter
Underwriter's Counsel
-5-
<PAGE>
SCHEDULE A
DLJ COMMERCIAL MORTGAGE CORP.,
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
CUSIP Principal Maturity Interest
Class Number Amount Date(1) Rate(2)
- ----- ------ ------ ---- ----
Class S-1 23322BFC7 $ 200,000,000 June 10, 2024 0.4577
Class S-2 23322BFC7 $ 200,000,000 June 10, 2024 0.4577
Class S-3 23322BFC7 $ 200,000,000 June 10, 2024 0.4577
Class S-4 23322BFC7 $ 200,000,000 June 10, 2024 0.4577
Class S-5 23322BFC7 $ 200,000,000 June 10, 2024 0.4577
Class S-6 23322BFC7 $ 200,000,000 June 10, 2024 0.4577
Class S-7 23322BFC7 $ 200,000,000 June 10, 2024 0.4577
Class S-8 23322BFC7 $ 150,429,606 June 10, 2024 0.4577
Class A-1A-1 23322BFD5 $ 200,000,000 June 10, 2008 6.8800
Class A-1A-2 23322BFD5 $ 41,610,000 June 10, 2008 6.8800
Class A-1B-1 23322BFE3 $ 200,000,000 June 10, 2009 7.3000
Class A-1B-2 23322BFE3 $ 200,000,000 June 10, 2009 7.3000
Class A-1B-3 23322BFE3 $ 200,000,000 June 10, 2009 7.3000
Class A-1B-4 23322BFE3 $ 200,000,000 June 10, 2009 7.3000
Class A-1B-5 23322BFE3 $ 90,203,000 June 10, 2009 7.3000
Class A-2 23322BFF0 $ 69,769,000 June 10, 2009 7.4500
Class A-3 23322BFG8 $ 81,398,000 June 10, 2009 7.6067
Class A-4 23322BFH6 $ 19,380,000 June 10, 2009 7.6067
Class B-1 23322BFJ2 $ 58,141,000 June 10, 2009 7.6067
Class B-2 23322BFK9 $ 23,257,000 June 10, 2009 7.6067
- ----------
(1) If the stated date is not a business day, the maturity date is the business
day immediately following the stated date.
(2) Approximate. The interest rates shown are the approximate rates applicable
for distributions in April, 1999. The interest rates are variable or otherwise
subject to change.
<PAGE>
SCHEDULE B
SAMPLE OFFICIAL STATEMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). One fully-registered Security certificate will be
issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $200 million, one certificate
will be issued with respect to each $200 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued.
4. To facilitate subsequent transfers, all Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
-i-
<PAGE>
7. Neither DTC nor Cede & Co. will consent or vote with respect to
Securities. Under its usual procedures, DTC mails an Omnibus Proxy to Issuer as
soon as possible after the record date. The Omnibus Proxy assigns Cede & Co's
consenting or voting rights to those Direct Participants to whose accounts the
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
8. Principal and interest payments on the Securities will be made to Cede &
Co., as nominee of DTC. DTC's practice is to credit Direct Participants'
accounts, upon DTC's receipt of funds and corresponding detail information from
Issuer or Agent, on payable date in accordance with their respective holdings
shown on DTC's records. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or registered in
"street name," and will be the responsibility of such Participant and not of
DTC, Agent, or Issuer, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal and interest to Cede &
Co. is the responsibility of Issuer or Agent, disbursement of such payments to
Direct Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to Agent [or Tender/Remarketing
Agent], and shall effect delivery of such Securities by causing the Direct
Participant to transfer the Participant's interest in the Securities, on DTC's
records, to Agent [or Tender/Remarketing Agent]. The requirement for physical
delivery of Securities in connection with an optional tender or a mandatory
purchase will be deemed satisfied when the ownership rights in the Securities
are transferred by Direct Participants on DTC's records and followed by a
book-entry credit of tendered Securities to Agent [or Tender/Remarketing
Agent's] DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
<PAGE>
Rider Amending DTC Letter of Representations -- BEO Collateralized Mortgage
Obligations (CMO) Without Owner Option to Redeem/Other Asset-Backed Securities
/and Pass-Through Certificates
DTC's Reorganization and Dividend Departments have relocated to 55 Water Street.
Following are revisions to the Letter of Representations, including current
addresses, telephone numbers, and telecopy numbers.
Paragraph 3 of the Letter of Representations:
Old Telecopier Numbers: Current Telecopier Numbers:
(212) 709-6896 and (212) 709-6897 (212) 855-5181 and 855-5182
The confirmation number (formerly (212) 709-6870) is now (212) 855-5202.
Paragraph 5 of the Letter of Representations:
Old Telecopier Numbers: Current Telecopier Numbers:
(212) 709-1093 and (212) 709-1094 (212) 855-5278
The confirmation number (formerly (212) 709-6884) is now (212) 855-5280.
The current address is: Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
Paragraph 7 of the Letter of Representations:
Old Telecopier Numbers: Current Telecopier Numbers:
(212) 709-1723 (212) 855-4555
The current address is: Manager; Announcements
Dividend Department
The Depository Trust Company
55 Water Street 25th Floor
New York, NY 10041-0099
Paragraph 9 of the Letter of Representations:
Old Telecopier Numbers: Current Telecopier Numbers:
(212) 709-1723 and (212) 709-1686 (212) 855-4555 and (212) 855-4556
The confirmation number (formerly (212) 709-1270) is now (212) 855-4550.
The current address for Paragraph 9 is the same as that listed above, for
Paragraph 7.
<PAGE>
The following additional text relates to Paragraph 10 of the Letter of
Representations:
Such information shall be conveyed by automated notification. If the
circumstances prevent the funds being paid to Cede & Co., as nominee of DTC, by
2:30 p.m. ET from equaling the dollar amount associated with detail payments by
12:00 noon ET, Issuer or Agent must provide CUSIP-level reconciliation to DTC no
later than 2:30 p.m. ET. Reconciliation may be provided by automated means or
in written format.
The following additional text relates to Paragraph 11 of the Letter of
Representations:
Issuer must remit free funds to Agent by 1:00 p.m. ET on each payment date, or
at such earlier time as required by Agent to guarantee timely credit to the
Dividend Deposit Account of Cede & Co.
The following additional text relates to Paragraph 12 of the Letter of
Representations:
Issuer must remit free funds to Agent by 1:00 p.m. ET on each payment date, or
at such earlier time as required by Agent to guarantee timely credit to the
Redemption Deposit Account of Cede & Co. Issuer or Agent shall deliver
CUSIP-level detail regarding such payments to DTC no later than 2:30 p.m. ET on
each payment date.
The following additional text relates to Paragraph 13 of the Letter of
Representations:
Issuer must remit free funds to Agent by 1:00 p.m. ET on each payment date, or
at such earlier time as required by Agent to guarantee timely credit to the
Reorganization Deposit Account of Cede & Co. Issuer or Agent shall deliver
CUSIP-level detail regarding such payments to DTC no later than 2:30 p.m. ET on
each payment date.
<PAGE>
REPRESENTATIONS FOR ERISA-RESTRICTED SECURITIES
to be included in DTC Letter of Representatios
Issuer and Agent recognize that DTC does not in any way undertake to, and
shall not have any responsibility to, monitor or ascertain whether a transfer of
Securities could give rise to a transaction prohibited or not otherwise
permissible under the Employee Retirement Income Security Act of 1974 or under
Section 4975 of the Internal Revenue Code of 1986. Issuer and Agent acknowledge
that: a) so long as Cede & Co. is the sole record owner of the Securities, it
shall be entitled to all voting rights in respect thereof and to receive the
full amount of all principal, premium, if any, and interest payable with respect
thereto; and b) DTC shall treat any DTC Participant having Securities credited
to its DTC accounts as entitled to the full benefits of ownership of such
Securities even if the crediting of such Securities to the DTC accounts of such
Participant results from transfers or failures to transfer in violation of such
laws. (The treatment by DTC of the effects of the crediting by it of Securities
to the accounts of DTC Participants shall not affect the rights of Issuer or
purchasers, sellers, or holders of Securities against any DTC Participant.)
<PAGE>
REPRESENTATIONS FOR DEPOSIT/WITHDRAWAL AT CUSTODIAN ("DWAC")
to be included in DTC Letter of Representations
The Security certificate(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives an
instruction originated by a Participant through DTC's Deposit/Withdrawal at
Custodian ("DWAC") system to increase the Participant's acount by a specified
number of shares, units, or obligations (a "Deposit Instruction"), Agent shall,
before 6:30 p.m. (Eastern Time) that day, either approve or cancel the Deposit
Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives an
instruction originated by a Participant through the DWAC system to decrease the
Participant's account by a specified number of shares, units, or obilgations (a
"Withdrawal Instruction"), Agent shall, at or before 6:30 p.m. (Eastern Time)
that day, either approve or cancel the Withdrawal Instruction through the DWAC
system.
Agent agrees that its approval of a Deposit or Withdrawal Instruction shall
be deemed to be the receipt by DTC of a new reissued or reregistered
certificated security on registration of transfer to the name of Cede & Co. for
the quantity of securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
1015 10th Avenue, S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2
In connection with the administration of the Mortgage Files
held by or on behalf of you as trustee under a certain Pooling and Servicing
Agreement, dated as of June 1, 1999 (the "Pooling and Servicing Agreement"),
among DLJ Commercial Mortgage Corp. as depositor, the undersigned as master
servicer (in such capacity, the "Master Servicer"), Banc One Mortgage Capital
Markets, LLC as special servicer, you as trustee (in such capacity, the
"Trustee") and REMIC administrator, the undersigned as Master Servicer hereby
requests a release of the Mortgage File (or the portion thereof specified below)
held by or on behalf of you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Property Name:
Address:
Prospectus Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full.
The undersigned hereby certifies that all amounts
received in connection with the Mortgage Loan that
are required to be credited to the Collection Account
pursuant to the Pooling and Servicing Agreement, have
been or will be so credited.
______ 2. Other. (Describe)
D-1-1
<PAGE>
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
GE CAPITAL LOAN SERVICES, INC.
as Master Servicer
By:
-----------------------------
Name:
Title:
D-1-2
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
1015 10th Avenue, S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Pass-Through Certificates,
Series 1999-CG2
In connection with the administration of the Mortgage Files
held by or on behalf of you as trustee under a certain Pooling and Servicing
Agreement, dated as of June 1, 1999 (the "Pooling and Servicing Agreement"),
among DLJ Commercial Mortgage Corp. as depositor, GE Capital Loan Services, Inc.
as master servicer, the undersigned as special servicer (the "Special
Servicer"), you as trustee (in such capacity, the "Trustee") and REMIC
administrator, the undersigned as Special Servicer hereby requests a release of
the Mortgage File (or the portion thereof specified below) held by or on behalf
of you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name:
Address:
Prospectus Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan is being foreclosed, in which case the Mortgage File (or such
portion thereof) will be returned when no longer required by us for such
purpose.
D-2-1
<PAGE>
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
BANC ONE MORTGAGE CAPITAL
MARKETS, LLC
as Special Servicer
By:
---------------------------------------
Name:
Title:
D-2-2
<PAGE>
EXHIBIT E-1
FORM OF TRUSTEE REPORT
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
- --------------------------------------------------------------------------------
TRUSTEE REPORT
Table of Contents
==================================================================
STATEMENT SECTIONS PAGE(s)
- ----------------- -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Ratings Detail 6
Current Mortgage Loan and Property
Stratification Tables 7-9
Mortgage Loan Detail 10
Principal Prepayment Detail 11
Historical Detail 12
Delinquency Loan Detail 13
Specially Serviced Loan Detail 14-15
Modified Loan Detail 16
Liquidated Loan Detail 17
==================================================================
<TABLE>
<CAPTION>
Underwriter Servicer Servicer Special Servicer
============================ ================================= ==================================== =======================
<S> <C> <C> <C>
Donaldson, Lufkin & Jenrette Goldman, Sachs & Co. GE Capital Loan Services Inc. Banc One Mortgage
Securities Corporation 85 Broad Street 363 North Sam Houston Parkway, East Capital Markets, LLC
277 Park Avenue New York, New York 10004 Suite 1200 1717 Main Street,
New York, NY 10172 Houston, TX 77060 14th Floor
Dallas, TX 75201
Contact: N. Dante LaRocca Contact: Dan Sparks Contact: Shelly Shrimpton Contact: Paul G. Smyth
Phone Number: (212) 892-3000 Phone Number: (212) 902-2914 Phone Number: (281) 405-7087 Phone Number:
(214) 237-2010
============================ ================================= ==================================== =======================
</TABLE>
This report has been compiled from information provided to Norwest by various
third parties, which may include the Servicer, Master Servicer, Special Servicer
and others. Norwest has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. Norwest
expressly disclaims any responsibility for the accuracy or completeness of
information furnished by third parties.
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 1 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Certificate Distribution Detail
<TABLE>
<CAPTION>
=========================================================================================================================
Pass-Through Original Beginning Principal Interest
Class CUSIP Rate Balance Balance Distribution Distribution
=========================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
A-1A 0.000000% 0.00 0.00 0.00 0.00
A-1B 0.000000% 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00
B-1 0.000000% 0.00 0.00 0.00 0.00
B-2 0.000000% 0.00 0.00 0.00 0.00
B-3 0.000000% 0.00 0.00 0.00 0.00
B-4 0.000000% 0.00 0.00 0.00 0.00
B-5 0.000000% 0.00 0.00 0.00 0.00
B-6 0.000000% 0.00 0.00 0.00 0.00
B-7 0.000000% 0.00 0.00 0.00 0.00
B-8 0.000000% 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00
D-1 0.000000% 0.00 0.00 0.00 0.00
D-2 0.000000% 0.00 0.00 0.00 0.00
R-I 0.000000% 0.00 0.00 0.00 0.00
R-II 0.000000% 0.00 0.00 0.00 0.00
R-III 0.000000% 0.00 0.00 0.00 0.00
=========================================================================================================================
Totals 0.00 0.00 0.00 0.00
=========================================================================================================================
<CAPTION>
===========================================================================================================
Realized Loss/ Current
Prepayment Additional Trust Total Ending Subordination
Class Penalties Fund Expenses Distribution Balance Level (1)
===========================================================================================================
<S> <C> <C> <C> <C> <C>
A-1A 0.00 0.00 0.00 0.00 0.00%
A-1B 0.00 0.00 0.00 0.00 0.00%
A-2 0.00 0.00 0.00 0.00 0.00%
A-3 0.00 0.00 0.00 0.00 0.00%
A-4 0.00 0.00 0.00 0.00 0.00%
B-1 0.00 0.00 0.00 0.00 0.00%
B-2 0.00 0.00 0.00 0.00 0.00%
B-3 0.00 0.00 0.00 0.00 0.00%
B-4 0.00 0.00 0.00 0.00 0.00%
B-5 0.00 0.00 0.00 0.00 0.00%
B-6 0.00 0.00 0.00 0.00 0.00%
B-7 0.00 0.00 0.00 0.00 0.00%
B-8 0.00 0.00 0.00 0.00 0.00%
C 0.00 0.00 0.00 0.00 0.00%
D-1 0.00 0.00 0.00 0.00 0.00%
D-2 0.00 0.00 0.00 0.00 0.00%
R-I 0.00 0.00 0.00 0.00 0.00%
R-II 0.00 0.00 0.00 0.00 0.00%
R-III 0.00 0.00 0.00 0.00 0.00%
===========================================================================================================
Totals 0.00 0.00 0.00 0.00
===========================================================================================================
</TABLE>
<TABLE>
<CAPTION>
====================================================================================================================================
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Penalties Distribution Amount
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
S 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
====================================================================================================================================
</TABLE>
(1) Calculated by taking (A) the sum of the ending certificate balance of all
classes less (B) the sum of (i) the ending certificate balance of the designated
class and (ii) the ending certificate balance of all classes which are not
subordinate to the designated class and dividing the result by (A).
Copyright 1997, Norwest Bank Minnesota, N.A. Page 2 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Certificate Factor Detail
<TABLE>
<CAPTION>
====================================================================================================================
Realized Loss/
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Penalties Fund Expenses Balance
====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
A-1A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-5 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-6 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-7 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-8 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-I 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-II 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-III 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
====================================================================================================================
</TABLE>
===============================================================================
Beginning Ending
Class CUSIP National Interest Prepayment Notional
Amount Distribution Penalties Amount
===============================================================================
S 0.00000000 0.00000000 0.00000000 0.00000000
===============================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 3 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Reconciliation Detail
<TABLE>
<CAPTION>
Advance Summary Servicing Fee Breakdowns
<S> <C> <C> <C>
P & I Advances Outstanding 0.00 Current Period Accrued Master Servicing Fees 0.00
Servicing Advances Outstanding 0.00 Less Delinquent Master Servicing Fees 0.00
Less Reductions to Master Servicing Fees 0.00
Reimbursement for Interest on Advances 0.00 Plus Master Servicing Fees for Delinquent Payments Received 0.00
Paid from general collections Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
</TABLE>
<TABLE>
<CAPTION>
Certificate Interest Reconciliation
====================================================================================================================================
Accrued Net Aggregate Distributable Distributable Additional Remaining Unpaid
Certificate Prepayment Certificate Certificate Interest Trust Fund Interest Distributable
Class Interest Interest Shortfall Interest Adjustment Expenses Distribution Certificate Interest
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
S 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1B 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-5 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-6 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-7 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-8 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D-1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
====================================================================================================================================
Total 0.00 0.00 0.00 0.00 0.00 0.00 0.00
====================================================================================================================================
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 4 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Other Required Information
<TABLE>
<S> <C>
Available Distribution Amount 0.00 Cumulative Realized Losses
Class A-1A 0.00
Class A-1B 0.00
Original Number of Outstanding Loans 0 Class A-2 0.00
Class A-3 0.00
Class A-4 0.00
Aggregate Number of Outstanding Loans 0 Class B-1 0.00
Class B-2 0.00
Aggregate Stated Principal Balance of Loans 0.00 Class B-3 0.00
Class B-4 0.00
Aggregate Unpaid Principal Balance of Loans 0.00 Class B-5 0.00
Class B-6 0.00
Class B-7 0.00
Class B-8 0.00
Aggregate Amount of Master Servicing Fee 0.00 Class C 0.00
Aggregate Amount of Special Servicing Fee 0.00 Appraised Reduction Amount
Aggregate Amount of Trustee Fee 0.00 ============================================================
Appraisal Date Appraisal
Aggregate Trust Fund Expenses 0.00 Loan Reduction Reduction
Number Amount Effected
Interest Reserve Deposit 0.00 ============================================================
Specially Serviced Loans not Delinquent
Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance 0.00 Total
============================================================
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 5 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Ratings Detail
<TABLE>
<CAPTION>
====================================================================================================================
Original Ratings Current Ratings (1)
Class CUSIP ----------------------------------- -----------------------------------
DCR Fitch Moody's S & P DCR Fitch Moody's S & P
====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
S
A-1A
A-1B
A-2
A-3
A-4
B-1
B-2
B-3
B-4
B-5
B-6
B-7
B-8
C
D-1
D-2
====================================================================================================================
</TABLE>
NR - Designates that the class was not rated by the above agency at the time of
original issuance.
X - Designates that the above rating agency did not rate any classes in this
transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular
rating agency, no request has been made subsequent to issuance to obtain rating
information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date
listed above. The ratings may have changed since they were obtained. Because the
ratings may have changed, you may want to obtain current ratings directly from
the rating agencies.
<TABLE>
<S> <C> <C> <C>
Duff & Phelps Credit Rating Co. Fitch IBCA, Inc. Moody's Investors Service Standard & Poor's Rating Services
55 East Monroe Street One State Street Plaza 99 Church Street 26 Broadway
Chicago, Illinois 60603 New York, New York 10004 New York, New York 10007 New York, New York 10004
(312) 368-3100 (212) 908-0500 (212) 553-0300 (212) 208-8000
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 6 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Current Mortgage Loan and Property Stratification Tables
<TABLE>
<CAPTION>
Scheduled Balance State(3)
================================================================= =============================================================
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR(1) State Props. Balance Bal. (2) WAC Avg DSCR(1)
================================================================= =============================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
================================================================= ============================================================
Totals Totals
================================================================= ============================================================
</TABLE>
See footnotes on last page of this section.
Copyright 1997, Norwest Bank Minnesota, N.A. Page 7 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Current Mortgage Loan and Property Stratification Tables
Debt Service Coverage Ratio
================================================================================
% of
Debt Service # of Scheduled Agg. WAM Weighted
Coverage Ratio Loans Balance Bal. (2) WAC Avg DSCR(1)
================================================================================
================================================================================
Totals
================================================================================
Property Type(3)
================================================================================
% of
Property # of Scheduled Agg. WAM Weighted
Type Props. Balance Bal. (2) WAC Avg DSCR(1)
================================================================================
================================================================================
Totals
================================================================================
Note Rate
================================================================================
% of
Note # of Scheduled Agg. WAM Weighted
Rate Loans Balance Bal. (2) WAC Avg DSCR(1)
================================================================================
================================================================================
Totals
================================================================================
Seasoning
================================================================================
% of
# of Scheduled Agg. WAM Weighted
Seasoning Loans Balance Bal. (2) WAC Avg DSCR(1)
================================================================================
================================================================================
Totals
================================================================================
See footnotes on last page of this section.
Copyright 1997, Norwest Bank Minnesota, N.A. Page 8 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Current Mortgage Loan and Property Stratification Tables
<TABLE>
<CAPTION>
Anticipated Remaining Term (ARD and Balloon Loans)
==========================================================================================================
% of
Anticipated Remaining # of Scheduled Agg. WAM Weighted
Term(2) Loans Balance Bal. (2) WAC Avg DSCR(1)
==========================================================================================================
<S> <C> <C> <C> <C> <C> <C>
==========================================================================================================
Totals
==========================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Remaining Stated Term (Fully Amortizing Loans)
==========================================================================================================
% of
Remaining Stated # of Scheduled Agg. WAM Weighted
Term Loans Balance Bal. (2) WAC Avg DSCR(1)
==========================================================================================================
<S> <C> <C> <C> <C> <C> <C>
==========================================================================================================
Totals
==========================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Remaining Amortization Term (ARD and Balloon Loans)
==========================================================================================================
% of
Remaining Amortization # of Scheduled Agg. WAM Weighted
Term Loans Balance Bal. (2) WAC Avg DSCR (1)
==========================================================================================================
<S> <C> <C> <C> <C> <C> <C>
==========================================================================================================
Totals
==========================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Age of Most Recent NOI
==========================================================================================================
% of
Age of Most # of Scheduled Agg. WAM Weighted
Recent NOI Loans Balance Bal. (2) WAC Avg DSCR(1)
==========================================================================================================
<S> <C> <C> <C> <C> <C> <C>
==========================================================================================================
Totals
==========================================================================================================
</TABLE>
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures
become available from borrowers on an asset level. In all cases the most current
DSCR provided by the Servicer is used. To the extent that no DSCR is provided by
the Servicer, information from the offering document is used. The Trustee makes
no representations as to the accuracy of the data provided by the borrower for
this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term
from the current month to the earlier of the Anticipated Repayment Date, if
applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date Balance of the related
mortgage loan as disclosed in the offering document.
Note: (i) "Scheduled Balance" has the meaning assigned thereto in the CSSA
Standard Information Package.
Copyright 1997, Norwest Bank Minnesota, N.A. Page 9 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Mortgage Loan Detail
<TABLE>
<CAPTION>
===========================================================================================================================
Anticipated
Loan Property Interest Principal Gross Repayment Maturity
Number ODCR Type(1) City State Payment Payment Coupon Date Date
===========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
===========================================================================================================================
Totals
===========================================================================================================================
<CAPTION>
===========================================================================================================================
Neg. Beginning Ending Paid Appraisal Appraisal Res. Mod.
Loan Amount Scheduled Scheduled Thru Reduction Reduction Strat. Code
Number (Y/N) Balance Balance Date Date Amount (2) (3)
===========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
===========================================================================================================================
Totals
===========================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
(1) Property Type Code (2) Resolution Strategy Code (3) Modification Code
---------------------- ---------------------------- ---------------------
<S> <C> <C> <C> <C>
MF - Multi-Family OF - Office 1 - Modification 7 - REO 1 - Maturity Date Extension
RT - Retail MU - Mixed Use 2 - Foreclosure 8 - Resolved 2 - Amortization Change
HC - Health Care LO - Lodging 3 - Bankruptcy 9 - Pending Return 3 - Principal Write-Off
IN - Industrial SS - Self Storage 4 - Extension to Master Servicer 4 - Combination
WH - Warehouse OT - Other 5 - Note Sale 10 - Deed in Lieu Of
MH - Mobile Home Park 6 - DPO Foreclosure
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 10 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Principal Prepayment Detail
<TABLE>
<CAPTION>
============================================================================================================================
Principal Prepayment Amount Prepayment Penalities
Offering Document ----------------------------------- -----------------------------------------------
Loan Number Cross-Reference Payoff Amount Curtailment Amount Prepayment Premium Yield Maintenance Premium
============================================================================================================================
<S> <C> <C> <C> <C> <C>
============================================================================================================================
Totals
============================================================================================================================
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 11 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Historical Detail
<TABLE>
<CAPTION>
====================================================================================================================================
Delinquencies Prepayments Rate and Maturities
- ----------------------------------------------------------------------------------------- ------------------- ----------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance # Balance # Balance # Balance # Balance # Amount Amount Coupon Remit WAM
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Note: Foreclosure and REO Totals are excluded from the delinquencies aging
categories.
Copyright 1997, Norwest Bank Minnesota, N.A. Page 12 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Delinquency Loan Detail
<TABLE>
<CAPTION>
=====================================================================================================================
Offering # of Current Outstanding Status of Resolution
Loan Document Months Paid Through P & I P & I Mortgage Strategy
Number Cross-Reference Delinq. Date Advances Advances Loan(1) Code(2)
=====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
=====================================================================================================================
Totals
=====================================================================================================================
<CAPTION>
=====================================================================================================================
Current Outstanding
Loan Servicing Foreclosure Servicing Servicing REO
Number Transfer Date Date Advances Advances Bankruptcy Date Date
=====================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
=====================================================================================================================
Totals
=====================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
(1) Status of Mortgage Loan (2) Resolution Strategy Code
--------------------------- ----------------------------
<S> <C> <C> <C>
A - Payment Not Received 2 - Two Months Delinquent 1 - Modification 7 - REO
But Still in Grace Period 3 - Three Or More Months Delinquent 2 - Foreclosure 8 - Resolved
B - Late Payment But Less 4 - Assumed Scheduled Payment 3 - Bankruptcy 9 - Pending Return
Than 1 Month Delinquent (Performing Matured Balloon) 4 - Extension to Master Servicer
0 - Current 7 - Foreclosure 5 - Note Sale 10 - Deed in Lieu Of
1 - One Month Delinquent 9 - REO 6 - DPO Foreclosure
</TABLE>
**Outstanding P & I Advances include the current period advance
Copyright 1997, Norwest Bank Minnesota, N.A. Page 13 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Specially Serviced Loan Detail - Part 1
<TABLE>
<CAPTION>
==================================================================================================================================
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest
Date Number Cross-Reference Date Code(1) Balance Type(2) State Rate
==================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
==================================================================================================================================
<CAPTION>
==================================================================================================================================
Net Remaining
Distribution Actual Operating NOI Note Maturity Amortization
Date Balance Income Date DSCR Date Date Term
==================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
==================================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
(1) Resolution Strategy Code (2) Property Type Code
---------------------------- ----------------------
<S> <C> <C> <C>
1 - Modification 7 - REO MF - Multi-Family OF - Office
2 - Foreclosure 8 - Resolved RT - Retail MU - Mixed Use
3 - Bankruptcy 9 - Pending Return HC - Health Care LO - Lodging
4 - Extension to Master Servicer IN - Industrial SS - Self Storage
5 - Note Sale 10 - Deed in Lieu Of WH - Warehouse OT - Other
6 - DPO Foreclosure MH - Mobile Home Park
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 14 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Specially Serviced Loan Detail - Part 2
<TABLE>
<CAPTION>
===================================================================================================================================
Offering Resolution Site
Distribution Loan Document Strategy Inspection
Date Number Cross-Reference Code(1) Date Comment
===================================================================================================================================
<S> <C> <C> <C> <C> <C>
===================================================================================================================================
<CAPTION>
===================================================================================================================================
Distribution Appraisal Appraisal Other REO
Date Phase 1 Date Date Value Property Revenue Comment
===================================================================================================================================
<S> <C> <C> <C> <C> <C>
===================================================================================================================================
</TABLE>
(1) Resolution Strategy Code
----------------------------
1 - Modification 7 - REO
2 - Foreclosure 8 - Resolved
3 - Bankruptcy 9 - Pending Return
4 - Extension to Master Servicer
5 - Note Sale 10 - Deed in Lieu Of
6 - DPO Foreclosure
Copyright 1997, Norwest Bank Minnesota, N.A. Page 15 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Modified Loan Detail
<TABLE>
<CAPTION>
===================================================================================================================================
Offering
Loan Document Pre-Modification Modification
Number Cross-Reference Balance Date Modification Description
===================================================================================================================================
<S> <C> <C> <C> <C>
===================================================================================================================================
Total
===================================================================================================================================
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 16 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 07/12/1999
Record Date: 06/30/1999
Liquidated Loan Detail
<TABLE>
<CAPTION>
=====================================================================================================================
Final Recovery Offering Gross Proceeds
Loan Determination Docuument Appraisal Appraisal Actual Gross as a % of
Number Date Cross-Reference Date Value Balance Proceeds Actual Balance
=====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
=====================================================================================================================
Current Total
=====================================================================================================================
Cumulative Total
=====================================================================================================================
<CAPTION>
===========================================================================================
Aggregate Net Net Proceeds Repurchased
Loan Liquidation Liquidation as a % of Realized by Seller
Number Expenses* Proceeds Actual Balance Loss (Y/N)
===========================================================================================
<S> <C> <C> <C> <C> <C>
===========================================================================================
Current Total
===========================================================================================
Cumulative Total
===========================================================================================
</TABLE>
* Aggregate liquidation expenses also include outstanding P & I advances and
unpaid fees (servicing, trustee, etc.).
Copyright 1997, Norwest Bank Minnesota, N.A. Page 17 of 17
<PAGE>
EXHIBIT E-2A
FORM OF CSSA LOAN PERIODIC UPDATE FILE
E-2A-1
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Specification Description/Comments
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Field Format
Field Name Number Type Example Description/Comments
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each Loan
Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Identification Number Assigned To Each
Collateral Item In A Pool
Prospectus Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Current Beginning Scheduled Balance 6 Numeric 100000.00 Outstanding Sched Prin Bal at Beginning of current
period that is part of the trust
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Sched Prin Bal at End of current period
that is part of the trust
Paid To Date 8 AN YYYYMMDD Date the loan is paid through. One month less than
the date the loan is due for next payment
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The Current
Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To Calculate The
Current Period Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Net Rate 18 Numeric 0.0897 Annualized Interest Rate Applicable To Calculate The
Current Period Remittance Int.
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next
Period Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To Calc Of
The Next Period Sch. Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next Scheduled To Change
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Field Format
Field Name Number Type Example Description/Comments
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The Current
Period that goes to the trust
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The Current
Period that goes to the trust
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal & Interest Payment Due For
Current Period for the trust
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount Due
For The Current Period
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During
The Related Collection Period
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The Related
Collection Period
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To
Prepayment Of Loan Prior To Maturity
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00 Scheduled Gross Interest Applicable To The
Prepayment Amount
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ASER $ 33 Numeric 1000.00 Excess Of The Principal Balance Over The Defined
Appraisal Percentage
Most Recent ASER Date 34 AN YYYYMMDD Date ASER Amount Applied To Loan
Cumulative ASER $ 35 Numeric 1000.00 Cumulative ASER Amount
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End Of
The Current Period
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current
Period
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End Of
The Current Period
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The Current
Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy
"Y", Else "N")
Foreclosure Date 42 AN YYYYMMDD Date Of Foreclosure (Multi-properties leave blank
unless all the same)
REO Date 43 AN YYYYMMDD Date Of REO (Multi-properties leave blank unless all
the same)
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
Net Proceeds Received on Liquidation 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be Remitted To
The Tr Per The Tr Doc'n
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be Netted From
The Tr Per The Tr Doc'n
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation Proceeds
Received
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year Revenue 52 Numeric 1000.00 Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses 53 Numeric 1000.00 Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI 54 Numeric 1000.00 Preceding Fiscal Year Net Op Income
Preceding Fiscal Year Debt Svc Amt. 55 Numeric 1000.00 Preceding Fiscal Year Debt Svc Amount
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 Preceding Fiscal Yr Debt Svc Cvrge Ratio using NOI
All Financial Update Fields Are
Calculated and/or Presented In
The Manner Described In The
Associated Trust Documentation.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Field Format
Field Name Number Type Example Description/Comments
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Preceding Fiscal Yr Physical Occ'y 57 Numeric 0.85 Preceding Fiscal Year Physical Occupancy
Preceding FY Financial As of Date 58 AN YYYYMMDD Preceding Fiscal Year Financial As Of Date
Second Preceding FY Revenue 59 Numeric 1000.00 Second Preceding Fiscal Year Revenue
Second Preceding FY Expenses 60 Numeric 1000.00 Second Preceding Fiscal Year Expenses
Second Preceding FY NOI 61 Numeric 1000.00 Second Preceding Fiscal Year Net Operating Income
Second Preceding FY Debt Service 62 Numeric 1000.00 Second Preceding Fiscal Year Debt Service
Second Preceding FY DSCR (NOI) 63 Numeric 2.55 Second Preceding Fiscal Year Debt Svc Cvrge Ratio
using NOI
Sec Preceding FY Physical Occ'y 64 Numeric 0.85 Second Preceding Fiscal Year Physical Occupancy
Sec Preceding FY Fin'l As of Date 65 AN YYYYMMDD Second Preceding Fiscal Year Financial As Of Date
Most Recent Revenue 66 Numeric 1000.00 Most Recent Revenue
Most Recent Expenses 67 Numeric 1000.00 Most Recent Expenses
Most Recent NOI 68 Numeric 1000.00 Most Recent Net Operating Income
Most Recent Debt Service 69 Numeric 1000.00 Most Recent Debt Service
Most Recent DSCR (NOI) 70 Numeric 2.55 Most Recent Debt Service Coverage Ratio using NOI
Most Recent Phys. Occ. 71 Numeric 0.85 Most Recent Physical Occupancy
Most Recent Start Date 72 AN YYYYMMDD Most Recent Start Date
Most Recent End Date 73 AN YYYYMMDD Most Recent End Date
Most Recent Appraisal Date 74 AN YYYYMMDD The Date Of The Latest Available Appraisal For The
Property
Most Recent Appraisal Value 75 Numeric 100000.00 The Latest Available Appraisal Value For The Property
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Spec Svc Transfer Date 77 AN YYYYMMDD Date Transferred To The Special Servicer
Most Recent Master Svc Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer or Sub-Servicer
Date Asset Expected to Be Resolved or FCL 79 AN YYYYMMDD If in FCL Expected Date of FCL and If REO Expected
REO date (Multi-prop leave blank)
Blank 80 AN Blank Left blank on purpose
Most Recent Figures Are From The Last
Financials Processed By the Servicer
Pursuant to the terms Of The Trust
Document, And Cover The Period From The
Start Date To The End Date.
New Fields to be added:
Current hyper amortizing Date 81 AN YYYYMMDD Date will be the same as setup file unless the loan
is modified and a new date assigned
Most Recent Financial Indicator Trailing 82 YTD AN T or Y T= Trailing 12 months Y = Year to Date, Check Start
12 or YT & End Date Applies to field 66 to 73
Last Setup Change Date 83 AN YYYYMMDD Distribution Date that information changed last in
the setup file
Last Loan Contribution Date 84 AN YYYYMMDD Date the loan was contributed
Last Property Contribution Date 85 AN YYYYMMDD Date the latest property or properties were
contributed
Number of Properties 86 Numeric 13 Number of properties currently attached to the loan
Preceding Year DSCR Roll up indicator 87 AN Text Flag used to explain how the DSCR was calculated
when there are multiple properties
Second Preceding Year DSCR Roll up 88 AN Text Flag used to explain how the DSCR was calculated
indicator when there are multiple properties
Most Recent DSCR Roll up indicator 89 AN Text Flag used to explain how the DSCR was calculated
when there are multiple properties
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow was calculated
should be the same for each year
Date of assumption 91 AN YYYYMMDD Date the loan last assumed by a new borrower- blank
if never assumed
Preceding Fiscal Year NCF 92 Numeric 1000.00 Preceding Fiscal Year Net Cash Flow
Preceding Fiscal Year DSCR (NCF) 93 Numeric 2.55 Preceding Fiscal Yr Debt Service Coverage Ratio
using NCF
Second Preceding FY NCF 94 Numeric 1000.00 Second Preceding Fiscal Year Net Cash Flow
Second Preceding FY DSCR (NCF) 95 Numeric 2.55 Second Preceding Fiscal Year Debt Service Coverage
Ratio using Net Cash Flow
Most Recent NCF 96 Numeric 1000.00 Most Recent Net Operating Income
Most Recent DSCR (NCF) 97 Numeric 1000.00 Most Recent Debt Service Coverage Ratio using Net
Cash Flow
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 3 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
- -----------------------------------------------------------------------------
Liquidation/Prepayment Code
Legend
- -----------------------------------------------------------------------------
1 Partial Liq'n (Curtailment)
2 Payoff Prior To Maturity
3 Disposition
4 Repurchase/ Substitution
5 Full Payoff At Maturity
6 DPO
7 Liquidation
8 Payoff w/ penalty
9 Payoff w/ yield Maintenance
10 Curtailment w/ Penalty
11 Curtailment w/ Yield Maintenance
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
Modification Code
Legend
- -----------------------------------------------------------------------------
1 Maturity Date Extension
2 Amortization Change
3 Principal Write-Off
4 Combination
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
DSCR Indicator*
Legend
- -----------------------------------------------------------------------------
P Partial but reporting to zero
A Average
F All Statements Collected
W Worst Case
N None Collected
C Consolidated
- -----------------------------------------------------------------------------
*Fields defined in detail in glossary
- -----------------------------------------------------------------------------
Status of Mortgage Loan
Legend
- -----------------------------------------------------------------------------
A Payment Not Received But Still In Grace Period
B Late Payment But Less Than 1 Month Delinquent
0 Current
1 30-59 Days Delinquent
2 60-89 Days Delinquent
3 90+ Days Delinquent
4 Assumed Sched Payment (Performing Matured Ball'n)
5 Defeasance
7 Foreclosure
9 REO
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
Workout Strategy Code
Legend
- -----------------------------------------------------------------------------
1 Modification
2 Foreclosure
3 Bankruptcy
4 Extension
5 Note Sale
6 DPO
7 REO
8 Resolved
9 Pending Return to Master Servicer
10 Deed In Lieu Of Foreclosure
11 Full Payoff
12 Reps and warranties
13 Other or TBD
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
NOI/NCF Indicator
Legend
- -----------------------------------------------------------------------------
CSSA Calculated using CSSA standard
PSA Calculated using a defination given in the PSA
U/W Calculated using the underwriting method
- -----------------------------------------------------------------------------
Page 4 of 4
<PAGE>
EXHIBIT E-2B
FORM OF CSSA PROPERTY FILE
E-2B-1
<PAGE>
Commercial Real Estate Secondary Market Contribution Association
CSSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
- ----------------------------------------- --------------------------------
Field Format
Field Name Number Type Example
- ----------------------------------------- --------------------------------
<S> <C> <C> <C>
Transaction ID 1 AN XXX97001
Loan ID 2 AN XXX9701A
Prospectus Loan ID 3 AN 00000000012345
Property ID 4 AN 1001-001
Distribution Date 5 AN YYYYMMDD
Cross-Collateralized Loan Grouping 6 AN Text
Property Name 7 AN Text
Property Address 8 AN Text
Property City 9 AN Text
Property State 10 AN FL
Property Zip Code 11 AN 30303
Property County 12 AN Text
Property Type Code 13 AN MF
Year Built 14 AN YYYY
Year Last Renovated 15 AN YYYY
Net Square Feet At Contribution 16 Numeric 25000
# Of Units/Beds/Rooms At Contribution 17 Numeric 75
Property Status 18 AN 1
Allocated Percentage of Loan at Contribution 19 Numeric 0.75
Current Allocated Percentage 20 Numeric 0.75
Current Allocated Sched Loan Amount 21 Numeric 5900900
Ground Lease (Y/S/N) 22 AN N
Total Reserve Balance 23 Numeric 25000
Most Recent Appraisal Date 24 AN YYYYMMDD
Most Recent Appraisal Value 25 Numeric 1000000
Date Asset is Expected to Be Resolved 26 AN YYYYMMDD
- ----------------------------------------- --------------------------------
<CAPTION>
- ----------------------------------------- ----------------------------------------------------------------------------------
Field Name Description/Comments
- ----------------------------------------- ----------------------------------------------------------------------------------
<S> <C>
Transaction ID
Loan ID
Prospectus Loan ID From Offering Document
Property ID Should contain Prospectus ID and property identifier, e.g., 1001-001, 1000-002
Distribution Date
Cross-Collateralized Loan Grouping All Loans With The Same Value Are Crossed
Property Name
Property Address
Property City
Property State
Property Zip Code
Property County
Property Type Code
Year Built
Year Last Renovated
Net Square Feet At Contribution RT, IN, WH, OF, MU, SS, OT = SF
# Of Units/Beds/Rooms At Contribution MF, MHP, LO, HC = Units
Property Status 1=FCL, 2=REO, 3=Defeased, 4=Partial Release, 5=Released, 6=Same as at Contribution
Allocated Percentage of Loan at Contribution Issuer to allocate loan % attributable to property for multi-property loans
Current Allocated Percentage Calculation based on Current Allocated Loan Amount and Current SPB for associated loan.
Current Allocated Sched Loan Amount Maintained by servicer. If not given use U/W NOI or NCF to calculate
Ground Lease (Y/S/N) Either Y=Yes, S=Subordinate, N=No ground lease
Total Reserve Balance For Maintenance, Repairs, & Environmental. (Excludes Tax & Insurance Escrows)
Most Recent Appraisal Date
Most Recent Appraisal Value
Date Asset is Expected to Be Resolved Could be different dates for different properties if foreclosing
- ----------------------------------------- ----------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------- ------------
CSSA
Field Name Loan
- ----------------------------------------- ------------
<S> <C>
Transaction ID S1,P1
Loan ID S3,P3
Prospectus Loan ID S4,P4
Property ID
Distribution Date P5
Cross-Collateralized Loan Grouping S75
Property Name S55
Property Address S56
Property City S57
Property State S58
Property Zip Code S59
Property County S60
Property Type Code S61
Year Built S64
Year Last Renovated
Net Square Feet At Contribution S62
# Of Units/Beds/Rooms At Contribution S63
Property Status
Allocated Percentage of Loan at Contribution
Current Allocated Percentage
Current Allocated Sched Loan Amount P7
Ground Lease (Y/S/N) S74
Total Reserve Balance S77
Most Recent Appraisal Date P74
Most Recent Appraisal Value P75
Date Asset is Expected to Be Resolved P79
- ----------------------------------------- ------------
</TABLE>
Page 1 of 6
<PAGE>
Commercial Real Estate Secondary Market Contribution Association
CSSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
- ----------------------------------------- --------------------------------
Field Format
Field Name Number Type Example
- ----------------------------------------- --------------------------------
<S> <C> <C> <C>
Foreclosure Date 27 AN YYYYMMDD
REO Date 28 AN YYYYMMDD
Occupancy % 29 Numeric 0.75
Occupancy Date 30 AN YYYYMMDD
Date Lease Rollover Review 31 AN YYYYMMDD
% Sq. Feet expiring 1-12 months 32 Numeric 0.20
% Sq. Feet expiring 13-24 months 33 Numeric 0.20
% Sq. Feet expiring 25-36 months 34 Numeric 0.20
% Sq. Feet expiring 37-48 months 35 Numeric 0.20
% Sq. Feet expiring 49-60 months 36 Numeric 0.20
Largest Tenant 37 AN Text
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text
Square Feet of 2nd Largest Tenant 40 Numeric 15000
3rd Largest Tenant 41 AN Text
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric 12
Contribution Financials As Of Date 44 AN YYYYMMDD
Revenue At Contribution 45 Numeric 1000000
Operating Expenses At Contribution 46 Numeric 1000000
NOI At Contribution 47 Numeric 1000000
DSCR (NOI) At Contribution 48 Numeric 1.5
Appraisal Value At Contribution 49 Numeric 1000000
Appraisal Date At Contribution 50 AN YYYYMMDD
Physical Occupancy At Contribution 51 Numeric 0.90
Date of Last Inspection 52 AN YYYYMMDD
- ----------------------------------------- --------------------------------
<CAPTION>
- ----------------------------------------- ----------------------------------------------------------------------------------
Field Name Description/Comments
- ----------------------------------------- ----------------------------------------------------------------------------------
<S> <C>
Foreclosure Date
REO Date
Occupancy % Map to "Most Recent Phys. Occ." in CSSA
Occupancy Date No corresponding field in CSSA loan periodic file.
Date Lease Rollover Review Roll over review to be completed every 12 months
% Sq. Feet expiring 1-12 months
% Sq. Feet expiring 13-24 months
% Sq. Feet expiring 25-36 months
% Sq. Feet expiring 37-48 months
% Sq. Feet expiring 49-60 months
Largest Tenant For Office, WH, Retail, Industrial *Only if disclosed in the offering document
Square Feet of Largest Tenant
2nd Largest Tenant For Office, WH, Retail, Industrial *Only if disclosed in the offering document
Square Feet of 2nd Largest Tenant
3rd Largest Tenant For Office, WH, Retail, Industrial *Only if disclosed in the offering document
Square Feet of 3rd Largest Tenant
Fiscal Year End Month Needed to indicate month ending for borrower's Fiscal Year
Contribution Financials As Of Date
Revenue At Contribution
Operating Expenses At Contribution
NOI At Contribution
DSCR (NOI) At Contribution
Appraisal Value At Contribution
Appraisal Date At Contribution
Physical Occupancy At Contribution
Date of Last Inspection Date of last physical site inspection
- ----------------------------------------- ----------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------- ------------
CSSA
Field Name Loan
- ----------------------------------------- ------------
<S> <C>
Foreclosure Date P42
REO Date P43
Occupancy % P71
Occupancy Date
Date Lease Rollover Review
% Sq. Feet expiring 1-12 months
% Sq. Feet expiring 13-24 months
% Sq. Feet expiring 25-36 months
% Sq. Feet expiring 37-48 months
% Sq. Feet expiring 49-60 months
Largest Tenant
Square Feet of Largest Tenant
2nd Largest Tenant
Square Feet of 2nd Largest Tenant
3rd Largest Tenant
Square Feet of 3rd Largest Tenant
Fiscal Year End Month
Contribution Financials As Of Date S72
Revenue At Contribution S70
Operating Expenses At Contribution S71
NOI At Contribution S65
DSCR (NOI) At Contribution S66
Appraisal Value At Contribution S67
Appraisal Date At Contribution S68
Physical Occupancy At Contribution S69
Date of Last Inspection
- ----------------------------------------- ------------
</TABLE>
Page 2 of 6
<PAGE>
Commercial Real Estate Secondary Market Contribution Association
CSSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
- ----------------------------------------- --------------------------------
Field Format
Field Name Number Type Example
- ----------------------------------------- --------------------------------
<S> <C> <C> <C>
Preceding FY Financial As of Date 53 AN YYYYMMDD
Preceding Fiscal Year Revenue 54 Numeric 1000000
Preceding Fiscal Year Expenses 55 Numeric 1000000
Preceding Fiscal Year NOI 56 Numeric 1000000
Preceding Fiscal Yr Debt Service Amt. 57 Numeric 1000000
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.30
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.90
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD
Second Preceding FY Revenue 61 Numeric 1000000
Second Preceding FY Expenses 62 Numeric 1000000
Second Preceding FY NOI 63 Numeric 1000000
Snd Preceding FY Debt Service Amt. 64 Numeric 1000000
Snd Preceding FY DSCR (NOI) 65 Numeric 1.30
Sec Preceding FY Physical Occupancy 66 Numeric 0.90
- ----------------------------------------- --------------------------------
New fields to be added:
Contribution Date 67 AN YYYYMMDD
- ----------------- -- -- --------
Most Recent Revenue 68 Numeric 1000
- ------------------- -- ------- ----
Most Recent Expenses 69 Numeric 1000
- -------------------- -- ------- ----
Most Recent NOI 70 Numeric 1000
- --------------- -- ------- ----
Most Recent Debt Service Amt. 71 Numeric 1000
- ----------------------------- -- ------- ----
Most Recent DSCR (NOI) 72 Numeric 2.55
- ---------------------- -- ------- ----
Most Recent Phys. Occ. 73 Numeric 0.85
- ---------------------- -- ------- ----
Most Recent Start Date 74 AN YYYYMMDD
- ---------------------- -- -- --------
Most Recent End Date 75 AN YYYYMMDD
- -------------------- -- -- --------
Most Recent Financial Indicator 76 AN Text
- ------------------------------- -- -- ----
NCF At Contribution 77 Numeric 1000000
- ------------------- -- ------- -------
DSCR (NCF) At Contribution 78 Numeric 1.5
- -------------------------- -- ------- ---
Preceding Fiscal Year NCF 79 Numeric 1000000
- ------------------------- -- ------- -------
Preceding Fiscal Year DSCR (NCF) 80 Numeric 2.55
- -------------------------------- -- ------- ----
Second Preceding FY NCF 81 Numeric 1000.00
- ----------------------- -- ------- -------
Second Preceding FY DSCR (NCF) 82 Numeric 2.55
- ------------------------------ -- ------- ----
Most Recent NCF 83 Numeric 1000.00
- --------------- -- ------- -------
Most Recent DSCR (NCF) 84 Numeric 1000.00
- ---------------------- -- ------- -------
<CAPTION>
- ----------------------------------------- ----------------------------------------------------------------------------------
Field Name Description/Comments
- ----------------------------------------- ----------------------------------------------------------------------------------
<S> <C>
Preceding FY Financial As of Date
Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI
Preceding Fiscal Yr Debt Service Amt. Calculate using P20(percentage) to get the allocated amount for each property
Preceding Fiscal Year DSCR (NOI) Uses the property NOI and the allocated debt service amount
Preceding Fiscal Year Physical Occupancy
Sec Preceding FY Financial As of Date
Second Preceding FY Revenue
Second Preceding FY Expenses
Second Preceding FY NOI
Snd Preceding FY Debt Service Amt. Calculate using P20(percentage) to get the allocated amount for each property
Snd Preceding FY DSCR (NOI) Uses the property NOI and the allocated debt service amount
Sec Preceding FY Physical Occupancy
- ----------------------------------------- ----------------------------------------------------------------------------------
New fields to be added:
Contribution Date Property Substitution Date
- ----------------- --------------------------
Most Recent Revenue Most Recent Revenue
- ------------------- -------------------
Most Recent Expenses Most Recent Expenses
- -------------------- --------------------
Most Recent NOI Most Recent Net Operating Income
- --------------- --------------------------------
Most Recent Debt Service Amt. Calculate using P20(percentage) to get the allocated amount for each property
- ----------------------------- -----------------------------------------------------------------------------
Most Recent DSCR (NOI) Uses the property NOI and the allocated debt service amount
- ---------------------- -----------------------------------------------------------
Most Recent Phys. Occ. Most Recent Physical Occupancy
- ---------------------- ------------------------------
Most Recent Start Date Start date used to calculate Most Recent information either YTD or trailing 12 months
- ---------------------- -------------------------------------------------------------------------------------
Most Recent End Date End date used to calculate Most Recent information either YTD or trailing 12 months
- -------------------- -----------------------------------------------------------------------------------
Most Recent Financial Indicator T12=Trailing 12 or YTD=Year to Date
- ------------------------------- -----------------------------------
NCF At Contribution Net Cash Flow At Contribution
- ------------------- -----------------------------
DSCR (NCF) At Contribution DSCR At Contribution using NCF to calculate
- -------------------------- -------------------------------------------
Preceding Fiscal Year NCF Preceding Fiscal Year Net Cash Flow
- ------------------------- -----------------------------------
Preceding Fiscal Year DSCR (NCF) Preceding Fiscal Yr Debt Service Coverage Ratio using NCF
- -------------------------------- ---------------------------------------------------------
Second Preceding FY NCF Second Preceding Fiscal Year Net Cash Flow
- ----------------------- ------------------------------------------
Second Preceding FY DSCR (NCF) Second Preceding Fiscal Year Debt Service Coverage Ratio using Net Cash Flow
- ------------------------------ ----------------------------------------------------------------------------
Most Recent NCF Most Recent Net Operating Income
- --------------- --------------------------------
Most Recent DSCR (NCF) Most Recent Debt Service Coverage Ratio using Net Cash Flow
- ---------------------- -----------------------------------------------------------
<CAPTION>
- ----------------------------------------- ------------
CSSA
Field Name Loan
- ----------------------------------------- ------------
<S> <C>
Preceding FY Financial As of Date P58
Preceding Fiscal Year Revenue P52
Preceding Fiscal Year Expenses P53
Preceding Fiscal Year NOI P54
Preceding Fiscal Yr Debt Service Amt. P55
Preceding Fiscal Year DSCR (NOI) P56
Preceding Fiscal Year Physical Occupancy P57
Sec Preceding FY Financial As of Date P65
Second Preceding FY Revenue P59
Second Preceding FY Expenses P60
Second Preceding FY NOI P61
Snd Preceding FY Debt Service Amt. P62
Snd Preceding FY DSCR (NOI) P63
Sec Preceding FY Physical Occupancy P64
- ----------------------------------------- ------------
New fields to be added:
Contribution Date P66
- ----------------- ---
Most Recent Revenue P67
- ------------------- ---
Most Recent Expenses P68
- -------------------- ---
Most Recent NOI P69
- --------------- ---
Most Recent Debt Service Amt. P70
- ----------------------------- ---
Most Recent DSCR (NOI) P71
- ---------------------- ---
Most Recent Phys. Occ. P72
- ---------------------- ---
Most Recent Start Date P73
- ---------------------- ---
Most Recent End Date P74
- -------------------- ---
Most Recent Financial Indicator P82
- ------------------------------- ---
NCF At Contribution
- -------------------
DSCR (NCF) At Contribution
- --------------------------
Preceding Fiscal Year NCF
- -------------------------
Preceding Fiscal Year DSCR (NCF) P92
- -------------------------------- ---
Second Preceding FY NCF P93
- ----------------------- ---
Second Preceding FY DSCR (NCF) P94
- ------------------------------ ---
Most Recent NCF P95
- --------------- ---
Most Recent DSCR (NCF) P96
- ---------------------- ---
</TABLE>
Page 3 of 6
<PAGE>
Commercial Real Estate Secondary Market Contribution Association
CSSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
- ----------------------------------------- ------ -----------------------------------------------------------------------------
Field
Field Name Number Relationship to Corresponding CSSA Loan File
- ----------------------------------------- ------ -----------------------------------------------------------------------------
<S> <C> <C>
Transaction ID 1 Same as CSSA Loan File
Loan ID 2 Same as CSSA Loan File
Prospectus Loan ID 3 Same as CSSA Loan File
Property ID 4
Distribution Date 5 Same as CSSA Loan File
Cross-Collateralized Loan Grouping 6
Property Name 7 If Multi-Prop, no rollup to CSSA Loan File. Populate S55 with"Various."
Property Address 8 If Multi-Prop, no rollup to CSSA Loan File. Populate S56 with"Various."
Property City 9 If Multi-Prop, and all same then populate S57 with City, otherwise, "Various".
Missing info= "incomplete"
Property State 10 If Multi-Prop, and all same then populate S58 with State, otherwise,
"Various". Missing info= "incomplete"
Property Zip Code 11 If Multi-Prop, and all same then populate S59 with Zip, otherwise, "Various".
Missing info= "incomplete"
Property County 12 If Multi-Prop, and all same then populate S60 with County, otherwise,
"Various". Missing info= "incomplete"
Property Type Code 13 If Multi-Prop and all same then populate S61 with property
type otherwise "Various". Missing Info ="incomplete"
Year Built 14 If Multi-Prop, and all same then populate S64 with year otherwise, "0"
Year Last Renovated 15 If Multi-Prop, and all same then populate P80 with year otherwise, "00000000".
Net Square Feet At Contribution 16 Roll-up to loan file if populated & all the same property type. If missing one
or more than populate with "0"
# Of Units/Beds/Rooms At Contribution 17 Roll-up to loan file if populated & all the same property type. If missing one
or more than populate with "0"
Property Status 18 If multi-prop and all same than populate CSSA Loan file with property, status,
otherwise various.
Allocated Percentage of Loan at Contribution 19 No field needed in Cssa Loan file
Current Allocated Percentage 20 No field needed in Cssa Loan file
Current Allocated Sched Loan Amount 21 Roll-up to Current Ending SPB (P7)
Ground Lease (Y/S/N) 22 If any property is Y, or S then S74=Y
Total Reserve Balance 23 If any property populated, then S77=Y
Most Recent Appraisal Date 24 If Multi-Prop, and all same then populate P74 with date, otherwise,
"00000000".
Most Recent Appraisal Value 25 Roll-up to CSSA Loan File if populated. If missing any appraisal value, than
populate P75 with "00000000)
Date Asset is Expected to Be Resolved 26 If Multi-Prop, latest date from affiliated properties for P79.
- ----------------------------------------- ------ ------------------------------------------------------------------------------
</TABLE>
Page 4 of 6
<PAGE>
Commercial Real Estate Secondary Market Contribution Association
CSSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
- ----------------------------------------- -------- ------------------------------------------------------------------------------
Field
Field Name Number Relationship to Corresponding CSSA Loan File
- ----------------------------------------- -------- ------------------------------------------------------------------------------
<S> <C> <C>
Foreclosure Date 27 If Multi-Prop, and all same then populate P42 with date, otherwise,
"00000000".
REO Date 28 If Multi-Prop, and all same then populate P43 with date, otherwise,
"00000000".
Occupancy % 29 [Wgt Avg] =Sum((Curr. Allocated % Prop A) *(Occ Prop A)...(Curr. Allocated %
Prop Z) * (Occ Prop Z)). If missing one, then, "0"
Occupancy Date 30 If Multi-Prop, and all same then populate with date, otherwise, "various".
Date Lease Rollover Review 31 No Roll up to the CSSA loan format.
% Sq. Feet expiring 1-12 months 32 No Roll up to the CSSA loan format.
% Sq. Feet expiring 13-24 months 33 No Roll up to the CSSA loan format.
% Sq. Feet expiring 25-36 months 34 No Roll up to the CSSA loan format.
% Sq. Feet expiring 37-48 months 35 No Roll up to the CSSA loan format.
% Sq. Feet expiring 49-60 months 36 No Roll up to the CSSA loan format.
Largest Tenant 37 No Roll up to the CSSA loan format.
Square Feet of Largest Tenant 38 No Roll up to the CSSA loan format.
2nd Largest Tenant 39 No Roll up to the CSSA loan format.
Square Feet of 2nd Largest Tenant 40 No Roll up to the CSSA loan format.
3rd Largest Tenant 41 No Roll up to the CSSA loan format.
Square Feet of 3rd Largest Tenant 42 No Roll up to the CSSA loan format.
Fiscal Year End Month 43 No Roll up to the CSSA loan format.
Contribution Financials As Of Date 44 If Multi-Prop, and all same then populate S72 with date, otherwise,
"00000000".
Revenue At Contribution 45 Roll up to "CSSA Setup File" total revenue on all properties if given on all
properties (should match the prospectus) if missing any input 0
Operating Expenses At Contribution 46 Roll up to "CSSA Setup File" total expenses on all properties if received on
all properties (should match the prospectus) if missing any input 0
NOI At Contribution 47 Roll up to "CSSA Setup file" total NOI or Net Cash Flow on all props if
received on all properties (should match the prospectus) if missing any
input 0
DSCR (NOI) At Contribution 48 The DSCR that is used in the "CSSA Setup file" Should match the prospectus
Appraisal Value At Contribution 49 Roll up to the "CSSA Setup File", if missing any properties populate S70
with "0"
Appraisal Date At Contribution 50 If Multi-Prop, and all same then populate S68 with date, otherwise,
"00000000".
Physical Occupancy At Contribution 51 Use a weighted average of all properties if received on all properties
otherwise "0"
Date of Last Inspection 52
- ----------------------------------------- -------- ------------------------------------------------------------------------------
</TABLE>
Page 5 of 6
<PAGE>
Commercial Real Estate Secondary Market Contribution Association
CSSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
- ----------------------------------------- -------- ------------------------------------------------------------------------------
Field
Field Name Number Relationship to Corresponding CSSA Loan File
- ----------------------------------------- -------- ------------------------------------------------------------------------------
<S> <C> <C>
Preceding FY Financial As of Date 53 If all information on all properties is received roll up giving the date as of
otherwise, "00000000"
Preceding Fiscal Year Revenue 54 Roll up total revenue on all properties if received on all properties, if
missing any input 0
Preceding Fiscal Year Expenses 55 Roll up total expenses on all properties if received on all properties, if
missing any input 0
Preceding Fiscal Year NOI 56 Roll up total NOI or Net Cash Flow on all properties if received on all
properties, if missing any input 0
Preceding Fiscal Yr Debt Service Amt. 57 Disclose total debt service owed for the preceding year as calculated by the
servicer.
Preceding Fiscal Year DSCR (NOI) 58 Roll up DSCR and indicate the method used in the Loan Periodic using the
"Preceding Year DSCR Roll up indicator"
Preceding Fiscal Year Physical Occupancy 59 Use a weighted average of all properties if received on all properties
otherwise "0"
Sec Preceding FY Financial As of Date 60 If all information on all properties is received roll up giving the date as
of otherwise, "00000000"
Second Preceding FY Expenses 62 Roll up total expenses on all properties if received on all properties, if
missing any input 0
Second Preceding FY NOI 63 Roll up total NOI or Net Cash Flow on all properties if received on all
properties, if missing any input 0
Snd Preceding FY Debt Service Amt. 64 Disclose total debt service owed for the preceding year as calculated by the
servicer
Snd Preceding FY DSCR (NOI) 65 Roll up DSCR and indicate the method used in the Loan Periodic using the
"Preceding Year DSCR Roll up indicator"
Sec Preceding FY Physical Occupancy 66 Use a weighted average of all properties if received on all properties
- ----------------------------------------- -------- ------------------------------------------------------------------------------
New fields to be added:
Contribution Date 67 Roll up the latest date a property was substituted
- ----------------- -- --------------------------------------------------
Most Recent Revenue 68 Roll up total revenue on all properties if received on all properties
- ------------------- -- ---------------------------------------------------------------------
Most Recent Expenses 69 Roll up total expenses on all properties if received on all properties
- -------------------- -- ----------------------------------------------------------------------
Most Recent NOI 70 Roll up total NOI on all properties if received on all properties
- --------------- -- -----------------------------------------------------------------
Most Recent Debt Service Amt. 71 Disclose total debt service owed for the preceding year as calculated by the
- ----------------------------- -- -----------------------------------------------------------------------------
servicer
--------
Most Recent DSCR (NOI) 72 Roll up DSCR and indicate the method used in the Loan Periodic using the
- ---------------------- -- ------------------------------------------------------------------------
"Preceding Year DSCR Roll up indicator" P88
-------------------------------------------
Most Recent Phys. Occ. 73 Use a weighted average occupancy for all properties if received on all
- ---------------------- -- ----------------------------------------------------------------------
properties
----------
Most Recent Start Date 74 If all properties do not have the same start and end date roll up "00000000"
- ---------------------- -- ----------------------------------------------------------------------------
Most Recent End Date 75 If all properties do not have the same start and end date roll up "00000000"
- -------------------- -- ----------------------------------------------------------------------------
Most Recent Financial Indicator 76
- -------------------------------- --
NCF At Contribution 77 Roll up to "CSSA Setup file" total Net Cash Flow on all props if received on
- ------------------- -- ----------------------------------------------------------------------------
all properties (should match the prospectus) if missing any input 0
-------------------------------------------------------------------
DSCR (NCF) At Contribution 78 The DSCR that is used in the "CSSA Setup file" Should match the prospectus
- -------------------------- -- --------------------------------------------------------------------------
Preceding Fiscal Year NCF 79 Roll up total Net Cash Flow on all properties if received on all properties,
- ------------------------- -- ----------------------------------------------------------------------------
if missing any input 0
----------------------
Preceding Fiscal Year DSCR (NCF) 80 Disclose total debt service owed for the preceding year as calculated by the
- -------------------------------- -- ----------------------------------------------------------------------------
servicer using NCF
------------------
Second Preceding FY NCF 81 Roll up total Net Cash Flow on all properties if received on all properties,
- ----------------------- -- ----------------------------------------------------------------------------
if missing any input 0
----------------------
Second Preceding FY DSCR (NCF) 82 Disclose total debt service owed for the preceding year as calculated by the
- ------------------------------ -- ----------------------------------------------------------------------------
servicer using NCF
------------------
Most Recent NCF 83 Roll up total Net Cash Flow on all properties if received on all properties,
- --------------- -- ----------------------------------------------------------------------------
if missing any input 0
----------------------
Most Recent DSCR (NCF) 84 Disclose total debt service owed for the preceding year as calculated by the
- ---------------------- -- ----------------------------------------------------------------------------
servicer using NCF
------------------
</TABLE>
Page 6 of 6
<PAGE>
EXHIBIT E-2C
FORM OF CSSA LOAN SET-UP FILE
E-2C-1
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Date Record Layout)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Specification Description/Comments
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch);
Blocking Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Field Format
Field Name Number Type Example Description/Comments
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To Each Loan Group
Within An Issue
Loan Id 3 AN 00000000012345 Unique Indentification Number Assigned To Each Collateral
Item In A Pool
Offering Document Loan Id 4 AN 123 Unique Indentification Number Assigned To Each Collateral
Item In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is Permitted To
Remit Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual,
5=Actual/366, 6=Simple, 7=78'S
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Yield
Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Penalty
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Date Record Layout)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Field Format
Field Name Number Type Example Description/Comments
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Prepayment Terms Description 21 AN Text Should reflect the information in Annex A or use
LO(36), YM(28), 7(12), Open(3)
ARM Index Code 22 AN A See Arm Index Code Legend
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination Of The Gross
Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On An Arm Loan Per
The Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay On An Arm Loan Per
The Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate Allowed Per
The Loan Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Increase To The Note Rate Allowed Per
The Loan Agreement
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Max Periodic % Increase To The P&I Payment Allowed Per
The Loan Agreement
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Max Periodic Dollar Increase To The P&I Payment Allowed
Per The Loan Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rate Reset Frequency 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually,
365=Daily
Pay Reset Frequency 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually,
365=Daily
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin (See Rounding
Code Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To Adjustment Date
Negative Amortization Allowed (Y/N) 38 AN Y Y=Yes, N=No
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Max Lifetime % Increase To The Original Balance Allowed Per
The Loan Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Max Lifetime Dollar Increase To The Original Balance
Allowed Per The Loan Agreement
Remaining Term At Contribution 41 Numeric 240 Remaining Number Of Months Until Maturity Of Loan At Cutoff
Remaining Amor-Tm At Securitiz'n 42 Numeric 360 Remaining Number Of Months Loan Amortized Over At Cutoff
Maturity Date At Contribution 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan
At Contribution
Sched Prin Bal At Contribution 44 Numeric 1000000.00 The Scheduled Principal Balance Of The Mortgage Loan At
Contribution
Note Rate At Contribution 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate Applicable To The
Calculation Of Scheduled Interest
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer And Trustee
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note
Rate To Determine the
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Net Rate
Fee Rate / Strip Rate 3 49 Numeric 0.00001 (Same Description for Field 47 to 51)
Fee Rate / Strip Rate 4 50 Numeric 0.00001
Fee Rate / Strip Rate 5 51 Numeric 0.00001
Net Rate At Contribution 52 Numeric 0.0947 Cutoff Annualized Interest Rate Applicable To The Calculation
Of Remittance Interest
Periodic P&I Payment At Contribution 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest Payment
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Date Record Layout)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Field Format
Field Name Number Type Example Description/Comments
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
# Of Properties at Contribution 54 Numeric 13 The Number Of Properties Underlying The Mortgage Loan
Property Name 55 AN Text Single Property use P7 If Multi-Prop, no rollup to CSSA
Loan File. "Various."
Property Address 56 AN Text Single Property use P8 If Multi-Prop, no rollup to CSSA
Loan File. "Various."
Property City 57 AN Text If Multi-Prop, all the same then P9 (City), otherwise,
"Various". Missing info= "incomplete"
Property State 58 AN Text If Multi-Prop all the same then P10 (State), otherwise,
"Various". Missing info= "incomplete"
Property Zip Code 59 AN Text If Multi-Prop all the same then P11 (zip code), otherwise,
"Various". Missing info= "incomplete"
Property County 60 AN Text If Multi-Prop all the same then P12 (county), otherwise,
"Various". Missing info= "incomplete"
Property Type Code 61 AN MF If Multi-Prop all the same then P13(Prop Type) otherwise
"Various" (See Prop Type Code Legend)
Net Square Feet At Contribution 62 Numeric 25000 Use P16 to rollup if populated. If missing 1 or more or
multi-prop with different property types then "0"
# Of Units/Beds/Rms At Contribution 63 Numeric 75 Use P17 to rollup if populated. If missing 1 or more or
multi-prop with different property types then "0"
Year Built 64 AN 1990 If Multi-Prop, and all same then populate with P14(year
built) otherwise, "0"
NOI At Contribution 65 Numeric 100000.00 Net Operating Income At Contribution
DSCR (NOI) At Contribution 66 Numeric 2.11 DSCR At Contribution
Appraisal Value At Contribution 67 Numeric 1000000.00 Appraisal Value At Contribution
Appraisal Date At Contribution 68 AN YYYYMMDD Appraisal Date At Contribution
Physical Occupancy At Contribution 69 Numeric 0.88 Physical Occupancy At Contribution
Revenue At Contribution 70 Numeric 100000.00 Revenue At Contribution
Operating Expenses At Contribution 71 Numeric 100000.00 Expenses At Contribution
Contribution Financials As Of Date 72 AN YYYYMMDD Contribution Financials As Of Date
Recourse (Y/N) 73 AN Y Y=Yes, N=No
Ground Lease (Y/S/N) 74 AN Y Y=Yes, S=Subordinate, N= No ground lease, If any property
is Y or S rollup from prop file "Y"
Cross-Collateralized Loan Grouping 75 AN Text All Loans With The Same Value Are Crossed
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, N=No
Lien Position At Contribution 78 Numeric 1 1=First, 2=Second...
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
New Fields to be added:
<S> <C> <C> <C> <C>
Hyper Amortizing Begin Date 79 AN YYYYMMDD Date used to track ARD Loans
Defeasance Option Start Date 80 AN YYYYMMDD Date loan can start defeasance
Defeasance Option End Date 81 AN YYYYMMDD Date that defeasance ends
Last Change to Loan Date 82 AN YYYYMMDD Date the information was updated because of a change to
the information
NCF At Contribution 83 Numeric 100000 Net Cash Flow At Contribution
DSCR (NCF) AT Contribution 84 Numeric 2.11 DSCR At Contribution NCF to Calculate
</TABLE>
Page 3 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Date Record Layout)
- ---------------------------------------------------
Payment Type Code
Legend
- ---------------------------------------------------
1 Fully Amortizing
2 Amortizing Balloon
3 Interest Only / Balloon
4 Interest Only / Amortizing
5 Interest Only / Amortizing / Balloon
6 Principal Only
7 Hyper-Amortization
9 Other
- ---------------------------------------------------
- -----------------------------------------------------
ARM Index Code
Legend
- -----------------------------------------------------
A 11 FHLB COFI (1 Month)
B 11 FHLB COFI (6 Month)
C 1 Year CMT Weekly Average Treasury
D 3 Year CMT Weekly Average Treasury
E 5 Year CMT Weekly Average Treasury
F Wall Street Journal Prime Rate
G 1 Month LIBOR
H 3 Month LIBOR
I 6 Month LIBOR
J National Mortgage Index Rate
All Others Use Short Text Description
- -----------------------------------------------------
- -----------------------------------------------------
Property Types Code
Legend
- -----------------------------------------------------
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
- -----------------------------------------------------
- ----------------------------------------------------
Rounding Code
Legend
- ----------------------------------------------------
1 Unrounded
2 Nearest Percentage Increment
3 Up To Nearest Percentage Increment
4 Down To Nearest Percentage Increment
- ----------------------------------------------------
Page 4 of 4
<PAGE>
EXHIBIT E-3
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
E-3-1
<PAGE>
<TABLE>
<CAPTION>
Comparative Financial Status Report
as of
- -----------------------------------------------------------------------------------------------------------------------------------
Last
Property Paid Annual
Prospectus Inspection Scheduled Thru Debt
ID Name City State Date Loan Balance Date Service
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Total:
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Original Underwriting Information 2nd Preceding Annual Operating Information
Basis Year as of
Financial Financial
Prospectus Info as of % Total $ Info as of % Total $
ID Date Occupied Revenue NOI DSCR Date Occupied Revenue NOI DSCR
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Total:
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Preceding Annual Operating Information Trailing Financial or YTD Information
as of Normalized Actual
Financial
Prospectus Info as of % Total $ FS Start FS End Total $
ID Date Occupied Revenue NOI DSCR Date Date Revenue NOI DSCR
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Total:
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------
Net Change
Preceding & Basis
%
Prospectus % Total
ID Occupied Revenue DSCR
- ------------------------------------------------------------
<S> <C> <C> <C>
Total:
- ------------------------------------------------------------
</TABLE>
E-3
<PAGE>
EXHIBIT E-4
FORM OF DELINQUENT LOAN STATUS REPORT
E-4-1
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Scheduled
Property Sq. Ft. or Paid Thru Loan
Prospectus ID Name Type City State Units Date Balance
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
90+ Days Delinquent
60+ Days Delinquent
30+ Days Delinquent
Current & Special Servicer
<CAPTION>
Other
Total P&I Total Advances
Advances to Expenses to (Taxes & Total Current Current Maturity
Prospectus ID Date Date Escrow) Exposure Monthly P&I Interest Rate Date
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
90+ Days Delinquent
60+ Days Delinquent
30+ Days Delinquent
Current & Special Servicer
<CAPTION>
Appraisal
Value using BPO or
LTM NOI *** Cap Rate NOI & Cap Valuation Internal
Prospectus ID Date LTM NOI LTM DSCR Assigned Rate Date Value**
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
90+ Days Delinquent
60+ Days Delinquent
30+ Days Delinquent
Current & Special Servicer
<CAPTION>
Total
Loss using Appraisal
90% Appr. or Estimated Reduction Transfer Resolution FCL Start
Prospectus ID BPO Recovery % Realized Date Date Date
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
90+ Days Delinquent
60+ Days Delinquent
30+ Days Delinquent
Current & Special Servicer
<CAPTION>
Expected
FCL Sale Workout
Prospectus ID Date Strategy Comments
- -------------------------------------------------------------------------
<S> <C> <C> <C>
90+ Days Delinquent
60+ Days Delinquent
30+ Days Delinquent
Current & Special Servicer
</TABLE>
FCL - Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12 months
* Workout Strategy should match the CSSA Loan file using abbreviated words in
place of a code number such as (FCL - In Foreclosure, MOD - Modification,
DPO - Discount Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payment Plan
TBD - To Be Determined
It is possible to combine the status codes if the loan is going in more than
one direction. (ie. FCL/MOD, BK/MOD, BK/FCL/DPO)
** App - Appraisal, BPO - Broker Opinion, Int. - Internal Value
*** How to determine the cap rate is agreed upon by Underwriter and Servicers -
to be provided by third party.
E-4
<PAGE>
EXHIBIT E-5
FORM OF HISTORICAL LOAN MODIFICATION REPORT
E-5-1
<PAGE>
<TABLE>
<CAPTION>
Historical Loan Modification Report
as of
- ------------------------------------------------------------------------------------------------------------------------------------
Balance
MOD/ When Sent Balance at the # Mths
Prospectus Extension Effective to Special Effective Date of for Rate
ID City State Flag Date Servicer Rehabilitation Old Rate Change
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Total# (2) Est.
Mths for (1) Realized Future
Prospectus New Old New Change of Loss to Interest Loss
ID Rate Old P&I New P&I Maturity Maturity MOD Trust to Trust Comment
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
- --------------------------------------------------------------------------------
Total for All Loans:
Total For Loans in Current Month:
# of Loans $ Balance
Modifications: 0 0.00
Maturity Date Extensions: 0 0.00
---------------------------------------
Total: 0 0.00
(1) Actual principal loss taken by bonds
(2) Expected future loss due to a rate reduction. This is just an estimate at
the time of the modification.
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT E-6
FORM OF HISTORICAL LOSS ESTIMATE REPORT
E-6-1
<PAGE>
<TABLE>
<CAPTION>
Hist. Loss Estimate Report(REO-Sold or Disc. Payoff)
as of
- ------------------------------------------------------------------------------------------------------------------------------------
Last
% Appraisal or Effect Net Amt
Prospectus Property Received Brokers Date of Received
ID Name Type City State From Sale Opinion Sale Sales Price from Sale
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Total all Loans: $0.00
Current Month Only: $0.00
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Date Loss
Prospectus Scheduled Total P&I Total Servicing Fees Actual Losses Passed Minor Adj to
ID Balance Advanced Expenses Expenses Net Proceeds Passed Thru Thru Trust
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Total all Loans: $0.00
Current Month Only: $0.00
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------
Minor Adj Loss % of
Prospectus Passed Total Loss with Scheduled
ID Thru Adjustments Balance
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
- --------------------------------------------------------------------------------
<S> <C>
Total all Loans: $0.00
Current Month Only: $0.00
- --------------------------------------------------------------------------------
</TABLE>
E-6
<PAGE>
EXHIBIT E-7
FORM OF NO1 ADJUSTMENT WORKSHEET
E-7-1
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
PROPERTY OVERVIEW
Prospectus Number
GE Loan Number
Asset Name
Property Type:
Property Address:
#REF!
Year Built/ Year Renovated:
Occupancy Rate *
Average Rental Income Borrower Adjustment Normalized
INCOME: * Occupancy rates are year end or the ending date of the financial statement for
Number of Months Annualized the period.
Rental Income 1998
Percentage Rents Borrower
Expense Recoveries Actual Adjustment Normalized
Other Income $0 $0 $0
Less: Vacancies $0 $0 $0
$0 $0 $0
Effective Gross Income $0 $0 $0
$0 $0 $0
$0 $0 $0
OPERATING EXPENSES: Normalized - Full year financial statements that have been reviewed by the
Real Estate Taxes underwriter or the Servicer
Property Insurance ** Servicer will not be expected to "Normalize" these YTD numbers
Utilities
General & Administration $0 $0 $0
Repairs and Maintenance $0 $0 $0
Management Fees $0 $0 $0
Payroll & Benefits Expense $0 $0 $0
Advertising & Marketing $0 $0 $0
Professional Fees $0 $0 $0
Other Expenses $0 $0 $0
Ground Rent $0 $0 $0
Total Operating Expenses $0 $0 $0
$0 $0 $0
Operating Expense Ratio $0 $0 $0
$0 $0 $0
Net Operating Income
Leasing Commissions
Tenant Improvements $0 $0 $0
Replacement Reserve
Total Capital Items $0 $0 $0
$0 $0 $0
N.O.I. After Capital Items $0 $0 $0
$0 $0 $0
Debt Service (per Servicer)
Cash Flow after Debt Service $0 $0 $0
DSCR: (NOI/Debt Service) $0 $0 $0
$0 $0 $0
DSCR: (after Reserves\Capital EXP.)
Source of Financial Data:
(ie. operating statements, financial statements, tax return, other)
</TABLE>
Notes and Assumptions:
- --------------------------------------------------------------------------------
This report should be completed by the Servicer for any "Normalization" of the
Borrower's numbers
Income:
Expense:
Capital Items:
E-7
<PAGE>
EXHIBIT E-8
FORM OF OPERATING STATEMENT ANALYSIS REPORT
E-8-1
<PAGE>
OPERATING STATEMENT ANALYSIS
<TABLE>
<S> <C> <C> <C>
PROPERTY OVERVIEW
Prospectus Number
GE Loan Number
Property Name
Property Type:
Property Address, City, State:
Net Rentable Square Feet or # of Units:
Year Built/ Year Renovated:
Year of Operations Underwriting 1998 YTD
Occupancy Rate *
Average Rental Income
<CAPTION>
----------------------------------------------------------------------------------
* Occupancy rates are year end or the ending date of the financial statement for
the period.
INCOME: No. of Mos.
-----------
Number of Months 3rd Prior Year 2nd Prior Year Prior Year Current Year 0
----------------------------------------------------------------------------------
Period Ended Underwriting 1998
Statement Classification Base Line Normalized Normalized Normalized Normalized
----------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Rental Income $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Percentage Rents $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Expense Recoveries $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Other Income $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Less: Vacancies $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
EFFECTIVE GROSS INCOME $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
<CAPTION>
-------------------
Current Current
Period Ended to Base to prior
Statement Classification Variance Variance
-------------------
<S> <C> <C>
Rental Income
-------------------
Percentage Rents
-------------------
Expense Recoveries
-------------------
Other Income
-------------------
Less: Vacancies
-------------------
EFFECTIVE GROSS INCOME
-------------------
<CAPTION>
Normalized - Full year financial statements that have been reviewed by the
underwriter or the Servicer
** Servicer will not be expected to "Normalize" these YTD numbers
OPERATING EXPENSES:
----------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Real Estate Taxes $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Property Insurance $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Utilities $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
General & Administation $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Repairs and Maintenance $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Management Fees $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Payroll & Benefits Expense $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Advertising & Marketing $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Professional Fees $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Other Expenses $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Ground Rent $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
TOTAL OPERATING EXPENSES $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
----------------------------------------------------------------------------------
NET OPERATING INCOME $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Leasing Commissions $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Tenant Improvements $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
Replacement Reserve $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
N.O.I. AFTER CAPITAL ITEMS $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER) $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
CASH FLOW AFTER DEBT SERVICE $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------
DSCR: (NOI/DEBT SERVICE)
---------------------------------------------------------------------------
DSCR: (AFTER RESERVES\CAPITAL EXP.)
---------------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
---------------------------------------------------------------------------
</TABLE>
OPERATING EXPENSES:
-------------------
Real Estate Taxes
-------------------
Property Insurance
-------------------
Utilities
-------------------
General & Administation
-------------------
Repairs and Maintenance
-------------------
Management Fees
-------------------
Payroll & 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
-------------------
N.O.I. AFTER CAPITAL ITEMS
-------------------
DEBT SERVICE (PER SERVICER)
-------------------
CASH FLOW AFTER DEBT SERVICE
-------------------
DSCR: (NOI/DEBT SERVICE)
DSCR: (AFTER RESERVES\CAPITAL EXP.)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
NOTES AND ASSUMPTIONS:
- --------------------------------------------------------------------------------
The years shown above will roll always showing a three year history. @ Base line
operating information is YTD as of:
INCOME:
EXPENSE:
CAPITAL ITEMS:
E-8
<PAGE>
EXHIBIT E-9
FORM OF REO STATUS REPORT
E-9-1
<PAGE>
<TABLE>
<CAPTION> REO Status Report
as of
- ------------------------------------------------------------------------------------------------------------------------------------
Property Sq. Ft. or Paid Thru
Prospectus ID Name Type City State Units Date
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Other
Scheduled Total P&I Total Advances Current
Loan Advances to Expenses (Taxes & Total Monthly Maturity
Prospectus ID Balance Date To Date Escrow) Exposure P&I Date
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Value Appraisal
LTM LTM Cap Rate using NOI BPO or Loss using
NOI NOI/ Assign Valuation & Cap Internal 92% Appr. Estimated
Prospectus ID Date DSC *** Date Rate Value** or BPO Recovery %
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Total
Appraisal REO Pending
Reduction Transfer Acquisition Resolution
Prospectus ID Realized Date Date Date Comments
- --------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C>
</TABLE>
App. - Appraisal, BPO - Brokers Opinion, Int - Internal
*** How to determine the cap rate is agreed upon by Underwriting and servicers
- to be provided by third party.
<PAGE>
EXHIBIT E-10
FORM OF WATCH LIST
E-10-1
<PAGE>
Servicer Watch List Report
as of
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Paid
Property Scheduled Thru Maturity
Prospectus ID Name Type City State Loan Balance Date Date
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- --------------------------------------------------------------------------------
Prospectus ID LTM* DSCR Comment/Reason on Watch List
- --------------------------------------------------------------------------------
<S> <C> <C>
</TABLE>
Total
* LTM - Last 12 months either trailing or last annual.
Exhibit E-10 Watchlist
<PAGE>
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG2, Class
______ Certificates having an initial aggregate
Certificate Principal Balance as of June 22, 1999
(the "Closing Date") of $__________ [evidencing a
____% Percentage Interest in the related Class]
(the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates")
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 1999, among DLJ Commercial
Mortgage Corp., as Depositor, GE Capital Loan Services, Inc. as Master
Servicer, Banc One Mortgage Capital Markets, LLC, as Special Servicer, and
Norwest Bank Minnesota, National Association, as Trustee and REMIC
Administrator. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from any
and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf
has (a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer to
buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security from any person in any manner, (c) otherwise approached or negotiated
with respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security with any person in any manner, (d)
made any general solicitation with respect to any Transferred Certificate, any
interest in a Transferred
F-1A-1
<PAGE>
Certificate or any other similar security by means of general advertising or
in any other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"Securities Act"), or would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state
securities laws.
3. The Transferor and any person acting on behalf of the
Transferor in this matter reasonably believe that the Transferee is a
"qualified institutional buyer" as that term is defined in Rule 144A ("Rule
144A") under the Securities Act (a "Qualified Institutional Buyer") purchasing
for its own account or for the account of another person that is itself a
Qualified Institutional Buyer. In determining whether the Transferee is a
Qualified Institutional Buyer, the Transferor and any person acting on behalf
of the Transferor in this matter has relied upon the following method(s) of
establishing the Transferee's ownership and discretionary investments of
securities (check one or more):
___ (a) The Transferee's most recent publicly available
financial statements, which statements present the
information as of a date within 16 months preceding the date
of sale of the Transferred Certificates in the case of a
U.S. purchaser and within 18 months preceding such date of
sale in the case of a foreign purchaser; or
___ (b) The most recent publicly available information appearing
in documents filed by the Transferee with the Securities and
Exchange Commission or another United States federal, state,
or local governmental agency or self-regulatory organization,
or with a foreign governmental agency or self-regulatory
organization, which information is as of a date within 16
months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18
months preceding such date of sale in the case of a foreign
purchaser; or
___ (c) The most recent publicly available information appearing
in a recognized securities manual, which information is as
of a date within 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. purchaser and
within 18 months preceding such date of sale in the case of
a foreign purchaser; or
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive
officer of the Transferee, specifying the amount of
securities owned and invested on a discretionary basis by
the Transferee as of a specific date on or since the close
of the Transferee's most recent fiscal year, or, in the case
of a Transferee that is a member of a "family of investment
companies", as that term is defined in Rule 144A, a
certification by an executive officer of the investment
adviser specifying the amount of securities owned by the
"family of investment companies" as of a specific date on or
since the close of the Transferee's most recent fiscal year.
F-1A-2
<PAGE>
___ (e) Other. (Please specify brief description of method)
________________________________________________________
________________________________________________________
________________________________________________________
________________________________________________________
4. The Transferor and any person acting on behalf of the
Transferor understand that in determining the aggregate amount of securities
owned and invested on a discretionary basis by an entity for purposes of
establishing whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with such entity;
securities that are part of an unsold allotment to or subscription by
such entity, if such entity is a dealer; securities of issuers that
are part of such entity's "family of investment companies", if such
entity is a registered investment company; bank deposit notes and
certificates of deposit; loan participations; repurchase agreements;
securities owned but subject to a repurchase agreement; and currency,
interest rate and commodity swaps;
(b) the aggregate value of the securities shall be the cost of such
securities, except where the entity reports its securities holdings
in its financial statements on the basis of their market value, and
no current information with respect to the cost of those securities
has been published, in which case the securities may be valued at
market; and
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in
accordance with generally accepted accounting principles may be
included if the investments of such subsidiaries are managed under
the direction of the entity, except that, unless the entity is a
reporting company under Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, securities owned by such
subsidiaries may not be included if the entity itself is a
majority-owned subsidiary that would be included in the consolidated
financial statements of another enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the Transferor is
relying on the exemption from the provisions of Section 5 of the Securities
Act provided by Rule 144A.
F-1A-3
<PAGE>
6. The Transferor or a person acting on its behalf has
furnished, or caused to be furnished, to the Transferee all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement, and (e) all related
matters, that the Transferee has requested.
Very truly yours,
_____________________________________
(Transferor)
By: ________________________________
Name: _______________________________
Title: ______________________________
F-1A-4
<PAGE>
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG2, Class ______
Certificates having an initial aggregate Certificate
Principal Balance as of June 22, 1999 (the "Closing Date")
of $__________ [evidencing a ____% Percentage Interest in
the related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the captioned Certificates, (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 1999, among DLJ Commercial
Mortgage Corp., as Depositor, GE Capital Loan Services, Inc., as Master
Servicer, Banc One Mortgage Capital Markets, LLC, as Special Servicer, and
Norwest Bank Minnesota, National Association, as Trustee and REMIC
Administrator. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from any
and all claims and encumbrances whatsoever.
F-1B-1
<PAGE>
2. Neither the Transferor nor anyone acting on its behalf
has (a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer to
buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security from any person in any manner, (c) otherwise approached or negotiated
with respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security with any person in any manner, (d)
made any general solicitation with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security by means
of general advertising or in any other manner, or (e) taken any other action
with respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security, which (in the case of any of the
acts described in clauses (a) through (e) hereof) would constitute a
distribution of the Transferred Certificates under the Securities Act of 1933,
as amended (the "Securities Act"), would render the disposition of the
Transferred Certificates a violation of Section 5 of the Securities Act or any
state securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state
securities laws.
Very truly yours,
____________________________________
(Transferor)
By: ________________________________
Name: ______________________________
Title: _____________________________
F-1B-2
<PAGE>
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG2, Class
______ Certificates having an initial aggregate
Certificate Principal Balance as of June 22, 1999
(the "Closing Date") of $__________ [evidencing a
____% Percentage Interest in the related Class]
(the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates")
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 1999, among DLJ Commercial
Mortgage Corp., as Depositor, GE Capital Loan Services, Inc., as Master
Servicer, Banc One Mortgage Capital Markets, LLC, as Special Servicer, and
Norwest Bank Minnesota, National Association, as Trustee and REMIC
Administrator. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A ("Rule
144A") under the Securities Act of 1933, as amended (the "Securities Act"),
and has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it is
being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases for
its own account or for the account of another Qualified Institutional Buyer
and to whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the Securities Act.
F-2A-1
<PAGE>
2. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement and the Trust Fund
created pursuant thereto, and (e) all related matters, that it has requested.
3. If the Transferee proposes that the Transferred
Certificates be registered in the name of a nominee, such nominee has
completed the Nominee Acknowledgment below.
Very truly yours,
____________________________________
(Transferee)
By: ________________________________
Name: ______________________________
Title: _____________________________
F-2A-2
<PAGE>
Nominee Acknowledgment
----------------------
The undersigned hereby acknowledges and agrees that as to
the Transferred Certificates being registered in its name, the sole beneficial
owner thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
____________________________________
(Nominee)
By: ________________________________
Name: ______________________________
Title: _____________________________
F-2A-1
<PAGE>
ANNEX 1 TO EXHIBIT F-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Certificate Registrar], as
Certificate Registrar, with respect to the mortgage pass-through certificates
being transferred (the "Transferred Certificates") as described in the
Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief
financial officer, a person fulfilling an equivalent function, or other
executive officer of the entity purchasing the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A") because (i) the Transferee [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by
the state or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy of which is attached hereto, as of a date not more than
16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than
18 months preceding such date of sale in the case of a
foreign bank or equivalent institution.
- --------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or
any such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on
a discretionary basis at least $10,000,000 in securities.
F-2A-2
<PAGE>
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which is
supervised and examined by a state or federal authority
having supervision over any such institutions or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date
not more than 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. savings and
loan association, and not more than 18 months preceding such
date of sale in the case of a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks underwritten
by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or
agency of a State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established
and maintained by a State, its political subdivisions, or
any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of
Rule 144A.
___ Other. (Please supply a brief description of the entity and
a cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it
qualifies. Note that registered investment companies should
complete Annex 2 rather than this Annex 1.) ________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
F-2A-3
<PAGE>
3. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated with
such Person, (ii) securities that are part of an unsold allotment to or
subscription by such Person, if such Person is a dealer, (iii) bank deposit
notes and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such Person
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of
those securities has been published, in which case the securities were valued
at market. Further, in determining such aggregate amount, the Transferee may
have included securities owned by subsidiaries of such Person, but only if
such subsidiaries are consolidated with such Person in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under such
Person's direction. However, such securities were not included if such Person
is a majority-owned, consolidated subsidiary of another enterprise and such
Person is not itself a reporting company under the Securities Exchange Act of
1934, as amended.
5. The Transferee is familiar with Rule 144A and understands
that the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein because
one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its
own, such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by the
Transferee through one or more of the appropriate methods contemplated by Rule
144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this certification
as of the date of such purchase. In addition, if the Transferee is a bank or
savings and loan as provided above, the Transferee agrees that it will furnish
to such parties any updated annual financial statements that become available
on or before the date of such purchase, promptly after they become available.
F-2A-4
<PAGE>
8. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Pooling and Servicing Agreement
pursuant to which the Transferred Certificates were issued.
___________________________________
Print Name of Transferee
By: _______________________________
Name: _____________________________
Title: ____________________________
Date: _____________________________
F-2A-5
<PAGE>
ANNEX 2 TO EXHIBIT F-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Certificate Registrar], as
Certificate Registrar, with respect to the mortgage pass-through certificates
(the "Transferred Certificates") described in the Transferee certificate to
which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief
financial officer, a person fulfilling an equivalent function, or other
executive officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A") because the Transferee is part of a Family of Investment
Companies (as defined below), is an executive officer of the investment
adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, and (ii) as marked below,
the Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year. For purposes of determining
the amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies,
as the case may be, reports its securities holdings in its financial
statements on the basis of their market value, and no current information with
respect to the cost of those securities has been published, in which case the
securities of such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
F-2A-6
<PAGE>
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of
the Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps. For purposes of determining
the aggregate amount of securities owned and/or invested on a discretionary
basis by the Transferee, or owned by the Transferee's Family of Investment
Companies, the securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein because
one or more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing
Yes No the Transferred 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, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
F-2A-7
<PAGE>
8. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Pooling and Servicing Agreement
pursuant to which the Transferred Certificates were issued.
_____________________________________
Print Name of Transferee or Adviser
By: _________________________________
Name:
Title:
IF AN ADVISER:
_____________________________________
Print Name of Transferee
Date: _______________________________
F-2A-8
<PAGE>
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-
Through Certificates, Series 1999-CG2, Class ___ Certificates
having an initial aggregate Certificate Principal Balance as
of June 22, 1999 (the "Closing Date") of $__________
[evidencing a ____% Percentage Interest in the related Class]
(the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _______________________ (the "Transferor") to
_______________________________ (the "Transferee") of the captioned
Certificates (the "Transferred Certificates") pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of June 1, 1999, among DLJ Commercial Mortgage Corp., as Depositor, GE
Capital Loan Services, Inc., as Master Servicer, Banc One Mortgage Capital
Markets, LLC, as Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee and REMIC Administrator. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth
in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you, as Certificate Registrar, that:
1. Transferee is acquiring the Transferred Certificates for
its own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
F-2B-1
<PAGE>
2. Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the Securities Act
or registered or qualified under any applicable state securities laws, (b)
neither the Depositor nor the Trustee is obligated so to register or qualify
the Transferred Certificates, and (c) neither the Transferred Certificates nor
any security issued in exchange therefor or in lieu thereof may be resold or
transferred unless it is (i) registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities laws or
(ii) sold or transferred in a transaction which is exempt from such
registration and qualification and the Certificate Registrar has received (A)
a certificate from the prospective transferor substantially in the form
attached as Exhibit F-1A to the Pooling and Servicing Agreement; (B) a
certificate from the prospective transferor substantially in the form attached
as Exhibit F-1B to the Pooling and Servicing Agreement; and a certificate from
the prospective transferee substantially in the form attached either as
Exhibit F-2A or as Exhibit F-2B to the Pooling and Servicing Agreement; or (C)
an Opinion of Counsel satisfactory to the Certificate Registrar that the
transfer may be made without registration under the Securities Act, together
with the written certification(s) as to the facts surrounding the transfer
from the prospective transferor and/or prospective transferee upon which such
Opinion of Counsel is based.
3. The Transferee understands that it may not sell or
otherwise transfer the Transferred Certificates, any security issued in
exchange therefor or in lieu thereof or any interest in the foregoing except
in compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that the
Transferred Certificates will bear legends substantially to the following
effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY 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 SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF
ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
F-2B-2
<PAGE>
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS
NOT BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT").
ACCORDINGLY, THIS CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT TO (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF
REGULATION D UNDER THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE
EQUITY OWNERS CONSTITUTE ENTITIES DESCRIBED IN SUCH PARAGRAPHS.
4. Neither the Transferee nor anyone acting on its behalf
has (a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer to
buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security from any person in any manner, (c) otherwise approached or negotiated
with respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security with any person in any manner, (d)
made any general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, that (in the case of any of the acts
described in clauses (a) through (e) above) would constitute a distribution of
the Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Transferred Certificates pursuant thereto. The Transferee
will not act, nor has it authorized nor will it authorize any person to act,
in any manner set forth in the foregoing sentence with respect to the
Transferred Certificates, any interest in the Transferred Certificates or any
other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) nature, performance and servicing of the Mortgage
Loans, (d) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto and (e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" within the
meaning of paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities
Act or an entity in which all the equity owners come within such paragraphs
and has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the
Transferred Certificates; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such an
investment and can afford a complete loss of such investment.
F-2B-3
<PAGE>
7. If the Transferee proposes that the Transferred
Certificates be registered in the name of a nominee, such nominee has
completed the Nominee Acknowledgment below.
Very truly yours,
___________________________________
(Transferee)
By: _______________________________
Name: _____________________________
Title: ____________________________
Date: _____________________________
F-2B-4
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to
the Transferred Certificates being registered in its name, the sole beneficial
owner thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
__________________________________
(Nominee)
By: ______________________________
Name: __________________________
Title: _________________________
F-2B-5
<PAGE>
EXHIBIT G
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(DEFINITIVE SUBORDINATED CERTIFICATES)
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2, Class ______ Certificates
[having an initial Certificate Principal Balance as of June
22, 1999 (the "Closing Date") of $________] [evidencing
a _____% Percentage Interest in the related Class] (the
"Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the Transferred Certificates pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of June 1, 1999, among DLJ Commercial Mortgage Corp., as Depositor, GE
Capital Loan Services, Inc., as Master Servicer, Banc One Mortgage Capital
Markets, LLC, as Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee and REMIC administrator. All capitalized terms used
but not otherwise defined herein shall have the respective meanings set forth
in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you as Certificate Registrar, as follows (check the
applicable paragraph):
___ The Transferee is neither (A) a retirement plan or other employee
benefit plan or arrangement, including an individual retirement
account or annuity, a Keogh plan or a collective investment fund or
separate account in which such plans, accounts or arrangements are
invested, including an insurance company general account, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), nor
(B) a Person who is directly or indirectly purchasing the Transferred
Certificates on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan; or
G-1
<PAGE>
___ The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the
purchase and holding of such Certificates by such Person is exempt
from the prohibited transaction provisions of Section 406 of ERISA
and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60.
Very truly yours,
_________________________________
(Transferee)
By: ______________________________
Name:
Title:
G-2
<PAGE>
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF RESIDUAL INTEREST CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and
says that:
1. He/She is the ____________________ of
____________________ (the prospective transferee (the "Transferee") of DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates,
Series 1999-CG2, Class [R-I] [R-II] [R-III], evidencing a __% Percentage
Interest in such Class (the "Residual Interest Certificates")), a
_________________ duly organized and validly existing under the laws of
____________________, on behalf of which he/she makes this affidavit. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement pursuant
to which the Residual Interest Certificates were issued (the "Pooling and
Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer
will be, a Permitted Transferee and will endeavor to remain a Permitted
Transferee for so long as it holds the Residual Interest Certificates, and
(ii) is acquiring the Residual Interest Certificates for its own account or
for the account of another prospective transferee from which it has received
an affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any Person other than a "Disqualified Organization" or a
"non-United States Person", but in addition, if such Person is classified as a
partnership under the Code, such Person can only be a "Permitted Transferee"
if all of its beneficial owners are United States Persons. 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. A
"non-United States Person" is any Person other than a "United States Person".
A "United States Person" is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States or
a trust as to which (i) a court in the United States is able to exercise
primary supervision over the administration of the trust and (ii) one or more
United States fiduciaries have the right to control all substantial decisions
of the trust.
H-1-1
<PAGE>
3. The Transferee is aware (i) of the tax that would be
imposed under the Code on transfers of the Residual Interest Certificates to
non-Permitted Transferees; (ii) that such tax would be on the transferor or,
if such transfer is through an agent (which Person includes a broker, nominee
or middleman) for a non-Permitted Transferee, on the agent; (iii) that the
Person otherwise liable for the tax shall be relieved of liability for the tax
if the transferee furnishes to such Person an affidavit that the transferee is
a Permitted Transferee and, at the time of transfer, such Person does not have
actual knowledge that the affidavit is false; and (iv) that the Residual
Interest Certificates may be a "noneconomic residual interest" within the
meaning of Treasury regulation Section 1.860E- 1(c) and that the transferor of
a noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to enable the transferor to impede the assessment or
collection of tax.
4. The Transferee is aware of the tax imposed on a
"pass-through entity" holding the Residual Interest Certificates if at any
time during the taxable year of the pass-through entity a non-Permitted
Transferee is the record holder of an interest in such entity. (For this
purpose, a "pass-through entity" includes a regulated investment company, a
real estate investment trust or common trust fund, a partnership, trust or
estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar
will not register any transfer of the Residual Interest Certificates by the
Transferee unless the Transferee's transferee, or such transferee's agent,
delivers to the Certificate Registrar, among other things, an affidavit and
agreement in substantially the same form as this affidavit and agreement. The
Transferee expressly agrees that it will not consummate any such transfer if
it knows or believes that any representation contained in such affidavit and
agreement is false. In addition, the Transferee is aware the Certificate
Registrar will not register any transfer of the Residual Interest Certificates
to an entity classified as a partnership under the Code unless at the time of
transfer, all of the beneficial owners of such entity are "United States
Persons".
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Residual Interest
Certificates will only be owned, directly or indirectly, by a Permitted
Transferee.
7. The Transferee's taxpayer identification number is
_________________.
8. The Transferee has reviewed the provisions of Section
5.02(d) of the Pooling and Servicing Agreement, a description of which
provisions is set forth in the Residual Interest Certificates (in particular,
clause (ii)(A) of Section 5.02(d) which authorizes the Trustee to deliver
payments on the Residual Interest Certificates to a Person other than the
Transferee and clause (ii)(B) of Section 5.02(d) which authorizes the Trustee
to negotiate a mandatory sale of the Residual Interest Certificates, in either
case, in the event that the Transferee holds such Residual Interest
Certificates in violation of Section 5.02(d)); and the Transferee expressly
agrees to be bound by and to comply with such provisions.
H-1-2
<PAGE>
9. No purpose of the Transferee relating to its purchase or
any sale of the Residual Interest Certificates is or will be to impede the
assessment or collection of any tax.
10. The Transferee hereby represents to and for the benefit
of the transferor that the Transferee intends to pay any taxes associated with
holding the Residual Interest Certificates as they become due, fully
understanding that it may incur tax liabilities in excess of any cash flows
generated by the Residual Interest Certificates.
11. The Transferee will, in connection with any transfer
that it makes of the Residual Interest Certificates, deliver to the
Certificate Registrar a representation letter substantially in the form of
Exhibit H-2 to the Pooling and Servicing Agreement in which it will represent
and warrant, among other things, that it is not transferring the Residual
Interest Certificates to impede 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 (or its current
beneficial owners if such Transferee is classified as a partnership under the
Code) as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and has
satisfied the requirements of such provision.
H-1-3
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this
instrument to be executed on its behalf, pursuant to the authority of its
Board of Directors, by its ____________________ and its corporate seal to be
hereunto attached, attested by its [Assistant] Secretary, this ______ day of
______________.
[NAME OF TRANSFEREE]
By: ______________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
_______________________________
[Assistant] Secretary
Personally appeared before me the above-named
____________________, known or proved to me to be the same person who executed
the foregoing instrument and to be the ____________________ of the Transferee,
and acknowledged to me that he/she executed the same as his/her free act and
deed and the free act and deed of the Transferee
Subscribed and sworn before me this ______ day of ___________
________.
_____________________________
NOTARY PUBLIC
COUNTY OF _______________
STATE OF ________________
My Commission expires the
_________ day of
___________, 19__.
H-1-4
<PAGE>
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
RESIDUAL INTEREST CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2, Class [R-I] [R-II] [R-III]
Certificates, evidencing a ____% Percentage Interest in such
Class (the "Residual Interest Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of the Residual Interest Certificates, pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), among DLJ Commercial Mortgage Corp., as Depositor, GE Capital
Loan Services, Inc., as Master Servicer, Banc One Mortgage Capital Markets,
LLC, as Special Servicer, and Norwest Bank Minnesota, National Association, as
Trustee and REMIC Administrator. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants
to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Interest Certificates by the Transferor to the Transferee is or
will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached to
the Pooling and Servicing Agreement as Exhibit H-1. The Transferor does not
know or believe that any representation contained therein is false.
H-2-1
<PAGE>
3. The Transferor has at the time of this transfer conducted
a reasonable investigation of the financial condition of the Transferee (or
the beneficial owners of the Transferee if the Transferee is classified as a
partnership under the Code) as contemplated by Treasury regulation Section
1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has
determined that the Transferee has historically paid its debts as they became
due and has found no significant evidence to indicate that the Transferee will
not continue to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Interest Certificates may not be
respected for United States income tax purposes (and the Transferor may
continue to be liable for United States income taxes associated therewith)
unless the Transferor has conducted such an investigation.
Very truly yours,
__________________________________
(Transferor)
By: ______________________________
Name: ____________________________
Title: ___________________________
H-2-2
<PAGE>
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Commercial MBS Monitoring Department
[Facsimile No. (212) 553-0300]
Fitch IBCA, Inc.
One State Street Plaza--31st Floor
New York, NY 10004
Re: DLJ Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.06 of
the Pooling and Servicing Agreement, dated as of June 1, 1999, and relating to
DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates,
Series 1999-CG2 (the "Agreement"). Capitalized terms used but not otherwise
defined herein shall have respective meanings assigned to them in the
Agreement.
Notice is hereby given that the Holders of Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class
have designated Banc One Mortgage Capital Markets, LLC to serve as the Special
Servicer under the Agreement.
The designation of Banc One Mortgage Capital Markets, LLC as
Special Servicer will become final if certain conditions are met and each
Rating Agency delivers to Norwest Bank Minnesota, National Association, the
trustee under the Agreement (the "Trustee"), written confirmation that if the
person designated to become the Special Servicer were to serve as such, such
event would not result in the qualification, downgrade or withdrawal of the
rating or ratings assigned to one or more Classes of the Certificates.
Accordingly, such confirmation is hereby requested as soon as possible.
I-1-1
<PAGE>
Please acknowledge receipt of this notice by signing the
enclosed copy of this notice where indicated below and returning it to the
Trustee, in the enclosed stamped self-addressed envelope.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:
--------------------------------
Name:
Title:
Receipt acknowledged:
MOODY'S INVESTORS SERVICE, INC.
By:
--------------------------------------------------
Name:
Title:
Date:
FITCH IBCA, INC.
By:
--------------------------------------------------
Name:
Title:
Date:
I-1-2
<PAGE>
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[SPECIAL SERVICER]
[DEPOSITOR]
[REMIC ADMINISTRATOR]
Re: DLJ Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1999-CG2
Ladies and Gentlemen:
Pursuant to Section 6.06 of the Pooling and Servicing
Agreement, dated as of June 1, 1999, relating to DLJ Commercial Mortgage
Corp., Commercial Mortgage Pass-Through Certificates, Series 1999-CG2 (the
"Agreement"), the undersigned hereby agrees with all the other parties to the
Agreement that the undersigned shall serve as Special Servicer under, and as
defined in, the Agreement. The undersigned hereby acknowledges that, as of the
date hereof, it is and shall be a party to the Agreement and bound thereby to
the full extent indicated therein in the capacity of Special Servicer. The
undersigned hereby makes, as of the date hereof, the representations and
warranties set forth in Section 2.06 of the Agreement, with the following
corrections with respect to type of entity and jurisdiction of organization:
____________________.
---------------------------------
By:
------------------------------
Name:
Title:
I-2-1
<PAGE>
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
Debtor:
DLJ Commercial Mortgage Corp.
277 Park Avenue
New York, NY 10172
Secured Party:
Norwest Bank Minnesota, National Association
3 New York Plaza
New York, New York 10004
Text:
See Exhibit 1 Attached Hereto
J-1-1
<PAGE>
EXHIBIT 1 to EXHIBIT J
This Exhibit 1 is attached to and incorporated in a
financing statement pertaining to DLJ Commercial Mortgage Corp. as depositor
(referred to as the "Debtor" for the purpose of this financing statement
only), and Norwest Bank Minnesota, National Association as trustee for the
holders of the Series 1999-CG2 Certificates (referred to as the "Secured
Party" for purposes of this financing statement only), under that certain
Pooling and Servicing Agreement, dated as of June 1, 1999 (the "Pooling and
Servicing Agreement"), among the Debtor as depositor, the Secured Party as
trustee and REMIC administrator, GE Capital Loan Services, Inc., as master
servicer (in such capacity, the "Master Servicer") and Banc One Mortgage
Capital Markets, LLC, as special servicer (in such capacity, the "Special
Servicer"), relating to the issuance of the Debtor's Commercial Mortgage
Pass-Through Certificates, Series 1999-CG2 (collectively, the "Series 1999-CG2
Certificates"). Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement. The
attached financing statement covers all of the Debtor's right (including the
power to convey title thereto), title and interest in and to the Trust Fund
created pursuant to the Pooling and Servicing Agreement, consisting of the
following:
1. The mortgage notes or other evidence of
indebtedness of a borrower (the "Mortgage Notes")
with respect to the mortgage loans (the "Mortgage
Loans") listed on the Mortgage Loan Schedule to the
Pooling and Servicing Agreement, which Mortgage
Loan Schedule is attached hereto as Exhibit A;
2. The related mortgages, deeds of trust or other
similar instruments securing such Mortgage Notes
(the "Mortgages");
3. With respect to each Mortgage Note and each
Mortgage, each other legal, credit and servicing
document related to such Mortgage Note and Mortgage
(collectively, with such related Mortgage Note and
Mortgage, the "Mortgage Loan Documents");
4. (a) the Collection Account maintained by the Master
Servicer pursuant to the Pooling and Servicing
Agreement, (b) all funds from time to time on
deposit in the Collection Account, (c) the
investments of any such funds consisting of
securities, instruments or other obligations, and
(d) the general intangibles consisting of the
contractual right to payment, including, without
limitation, the right to payments of principal and
interest and the right to enforce the related
payment obligations, arising from or under any such
investments;
5. All REO Property;
J-1-2
<PAGE>
6. (a) the REO Account required to be maintained by the
Special Servicer pursuant to the Pooling and
Servicing Agreement, (b) all funds from time to time
on deposit in the REO Account, (c) the investments
of any such funds consisting of securities,
instruments or other obligations, and (d) the
general intangibles consisting of the contractual
right to payment, including, without limitation, the
right to payments of principal and interest and the
right to enforce the related payment obligations,
arising from or under any such investments;
7. (a) the Servicing Account(s) and Reserve Account(s)
required to be maintained by the Master Servicer or
Special Servicer pursuant to the Pooling and
Servicing Agreement, and (b) all funds from time to
time on deposit in the Servicing Account(s) and
Reserve Account(s);
8. (a) the Distribution Account required to be
maintained by the Secured Party pursuant to the
Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the Distribution Account,
(c) the investments of any such funds consisting of
securities, instruments or other obligations, and
(d) the general intangibles consisting of the
contractual right to payment, including, without
limitation, the right to payments of principal and
interest and the right to enforce the related
payment obligations, arising from or under any such
investments;
9. All insurance policies, including the right to
payments thereunder, with respect to the Mortgage
Loans required to be maintained pursuant to the
Mortgage Loan Documents and the Pooling and
Servicing Agreement, transferred to the Trust and
to be serviced by the Master Servicer or Special
Servicer; and
10. All income, payments, products and proceeds of any
of the foregoing, together with any additions
thereto or substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER MORTGAGE LOAN DOCUMENTS,
AND THIS FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT
OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF
THE UNIFORM COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE
OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE,
MORTGAGE OR OTHER MORTGAGE LOAN DOCUMENT. IN ADDITION, THE REFERENCES HEREIN
TO SECURITIES, INSTRUMENTS AND OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN
INSTRUMENT, A CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN THE
J-1-3
<PAGE>
MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE
JURISDICTION, NOR SHOULD THIS FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION
THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF
THE SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT
LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO
ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH
SECURITY, INSTRUMENT OR OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY
PERMITTED INVESTMENT). WITH RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY
IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
J-1-4
<PAGE>
Exhibit A
MORTGAGE LOAN SCHEDULE
J-1-5
<PAGE>
EXHIBIT K
CALCULATION OF NET OPERATING INCOME
With respect to any Mortgaged Property, "Net Operating
Income" shall mean for each fiscal year or portion thereof, (i) the related
Operating Income allocable to such period, less (ii) the related Operating
Expenses allocable to such period, and less (iii) any Contractual Recurring
Replacement Reserve for such Mortgaged Property as indicated in the Prospectus
Supplement dated June 11, 1999 relating to DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1999-CG2 (the amounts
described in this clause (iii) to be prorated if "Net Operating Income" is
being calculated for less than a full fiscal year).
With respect to any Mortgaged Property "Operating Income"
shall mean, for each fiscal year or portion thereof, all revenue derived by
the related Mortgagor arising from the Mortgaged Property, including, without
limitation, rental revenues (whether denominated as basic rent, additional
rent, percentage rent, escalation payments, electrical payments or otherwise)
and other fees and charges payable pursuant to leases or otherwise in
connection with the Mortgaged Property, and rent insurance proceeds. Operating
Income shall not include (a) insurance proceeds (other than proceeds of
business interruption or other similar insurance allocable to the applicable
period) and condemnation awards (other than awards arising from a temporary
taking or the use and occupancy of all or part of the applicable Mortgaged
Property allocable to the applicable period), or interest accrued on such
proceeds or awards, (b) proceeds of any financing, (c) proceeds of any sale,
exchange or transfer of the Mortgaged Property or any part thereof or interest
therein, (d) capital contributions or loans to the Mortgagor or an Affiliate
of the Mortgagor, (e) any item of income otherwise includible in Operating
Income but paid directly by any tenant to a Person other than the Mortgagor
except for real estate taxes paid directly to any taxing authority by any
tenant, (f) any other extraordinary, non-recurring revenues, (g) rent paid by
or on behalf of any lessee under space lease which is the subject of any
proceeding or action relating to its bankruptcy, reorganization or other
arrangement pursuant to federal bankruptcy law or any similar federal or state
law or which has been adjudicated a bankrupt or insolvent, unless such space
lease has been affirmed by the trustee in such proceeding or action, or (h)
rent paid by or on behalf of any lessee under a space lease the demised
premises of which are not occupied either by such lessee or by a sublessee
thereof.
With respect to any Mortgaged Property "Operating Expenses"
shall mean, for each fiscal year or portion thereof, all expenses directly
attributable to the operation, repair and/or maintenance of the Mortgaged
Property, including, without limitation, impositions, insurance premiums,
management fees, payments to third party suppliers, and costs attributable to
the operation, repair and maintenance of the systems for heating, ventilating
and air conditioning, and actually paid for by the Mortgagor. Operating
Expenses shall not include interest, principal and premium, if any, due under
the Mortgage Note or otherwise in connection with any other secured
indebtedness, income taxes, extraordinary capital improvements costs, or any
non-cash charge or expense such as depreciation.
K-1
<PAGE>
EXHIBIT L-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
Norwest Bank Minnesota, National Association
3 New York Plaza, 15th Floor
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG2
In accordance with Section [4.02(a)] [8.12(b)] of the
Pooling and Servicing Agreement, dated as of June 1, 1999 (the "Pooling and
Servicing Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the
"Depositor"), GE Capital Loan Services, Inc., as master servicer, Banc One
Mortgage Capital Markets, LLC, as special servicer, and Norwest Bank
Minnesota, National Association as trustee (in such capacity, the "Trustee")
and REMIC administrator, with respect to the DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates, Series 1999-CG2 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial holder of
$___________ aggregate [Certificate Principal
Balance/Certificate Notional Amount] of the Class
____ Certificates.
2. The undersigned is requesting [access to the
information on the Trustee's Internet Website
pursuant to Section 4.02(a)] -or- [the information
identified on the schedule attached hereto pursuant
to Section 8.12(b)] of the Pooling and Servicing
Agreement (the "Information").
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will
keep the Information confidential (except from such
outside persons as are assisting it in evaluating
the Information), and such Information will not,
without the prior written consent of the Trustee, be
disclosed by the undersigned or by its officers,
directors, partners employees, agents or
representatives (collectively, the
"Representatives") in any manner whatsoever, in
whole or in part; provided that the undersigned may
provide all or any part of the Information to any
other person or entity that holds or is
contemplating the purchase of any Certificate or
interest
L-1-1
<PAGE>
therein, but only if such person or entity confirms
in writing such ownership interest or prospective
ownership interest and agrees to keep it
confidential; and provided that the undersigned may
provide all or any part of the Information to its
auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the
Information in any manner which could result in a
violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or
would require registration of any Non-Registered
Certificate (as defined in the Pooling and
Servicing Agreement) pursuant to Section 5 of the
Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to
be signed hereto by its duly authorized officer, as of the day and year
written above.
-------------------------------------
[BENEFICIAL HOLDER OF A
CERTIFICATE]
By:
----------------------------------
Name:
Title:
L-1-2
<PAGE>
EXHIBIT L-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
Norwest Bank Minnesota, National Association
3 New York Plaza, 15th Floor
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG2
In accordance with Section [4.02(a)] [8.12(b)] of the
Pooling and Servicing Agreement, dated as of June 1, 1999 (the "Pooling and
Servicing Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the
"Depositor"), GE Capital Loan Services, Inc., as master servicer, Banc One
Mortgage Capital Markets, LLC, as special servicer, and Norwest Bank
Minnesota, National Association as trustee (in such capacity, the "Trustee")
and REMIC administrator, with respect to the DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates, Series 1999-CG2 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in
the Class ____ Certificates.
2. The undersigned is requesting [access to the
information on the Trustee's Internet Website
pursuant to Section 4.02(a)] -or- [the information
identified on the schedule attached hereto pursuant
to Section 8.12(b)] of the Pooling and Servicing
Agreement (the "Information") for use in evaluating
such possible investment.
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will
keep the Information confidential (except from such
outside persons as are assisting it in making the
investment decision described in paragraphs 1 and
2), and such Information will not, without the prior
written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners
employees, agents or representatives (collectively,
the "Representatives") in any manner whatsoever, in
whole or in part; provided that in the event the
undersigned purchases any Certificate or any
interest in any Certificate, the undersigned may
provide all or any part of the Information to any
other person or entity that holds or is
contemplating the purchase of any Certificate or
interest therein, but only if such person or entity
L-2-1
<PAGE>
confirms in writing such ownership interest or
prospective ownership interest and agrees to keep
it confidential; and provided that the undersigned
may provide all or any part of the Information to
its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the
Information in any manner which could result in a
violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or
would require registration of any Non-Registered
Certificate (as defined in the Pooling and
Servicing Agreement) pursuant to Section 5 of the
Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to
be signed hereto by its duly authorized officer, as of the day and year
written above.
--------------------------------
[PROSPECTIVE PURCHASER]
By:
----------------------------
Name:
Title:
L-2-2
<PAGE>
EXHIBIT M-1
FORM OF COLUMN MORTGAGE LOAN PURCHASE
AND SALE AGREEMENT
M-1-1
<PAGE>
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of
June 11, 1999 (this "Agreement"), is between DLJ Commercial Mortgage Corp., a
Delaware corporation (the "Purchaser"), and Column Financial, Inc., a Delaware
corporation (the "Seller").
The Seller intends to sell, assign, transfer, set over and
otherwise convey to the Purchaser, without recourse, subject to the terms and
conditions set forth below, certain multifamily and commercial mortgage loans
(collectively, the "Mortgage Loans") identified and more particularly
described on Schedule 1 attached hereto (the "Mortgage Loan Schedule"). Unless
otherwise indicated on the Mortgage Loan Schedule, the Mortgage Loans were
originated by the Seller. With respect to those Mortgage Loans, if any,
identified on the Mortgage Loan Schedule as having been originated by a party
other than the Seller (any such other party, a "Third Party Originator"; and
any such Mortgage Loan, a "Third Party Mortgage Loan"), the Seller is the
beneficiary, either directly or by way of assignment, of certain
representations and warranties made by the Third Party Originator(s) with
respect to its (their) respective Third Party Mortgage Loan(s) pursuant to the
agreement(s) identified on Schedule 2 hereto (each agreement so identified, a
"Third Party Originator Agreement"). The Seller also intends to assign to the
Purchaser all of its right, title and interest in, to and under each Third
Party Originator Agreement, as and to the extent set forth in Section 2 below.
Reference is made to the Pooling and Servicing Agreement,
dated as of June 1, 1999 (the "Pooling and Servicing Agreement"), among the
Purchaser, as depositor, GE Capital Loan Services, Inc. as master servicer
(the "Master Servicer") Banc One Mortgage Capital Markets, LLC, as special
servicer (the "Special Servicer"), and Norwest Bank Minnesota, National
Association as trustee (in such capacity, the "Trustee") and as REMIC
administrator (in such capacity, the "REMIC Administrator"), relating to the
issuance of the Purchaser's Commercial Mortgage Pass-Through Certificates,
Series 1999-CG2 (the "Certificates"). Capitalized terms used without
definition herein shall have the respective meanings assigned to them in the
Pooling and Servicing Agreement as in full force and effect on the Closing
Date (as defined below). The Seller acknowledges that the Purchaser intends to
transfer the Mortgage Loans, together with certain other multifamily and
commercial mortgage loans (the "Other Loans") acquired from certain other loan
sellers (the "Other Loan Sellers") to the Trustee in exchange for the
Certificates. The Purchaser has entered into an Underwriting Agreement, dated
the date hereof (the "Underwriting Agreement"), with Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC") and Goldman, Sachs & Co. ("Goldman
Sachs"; and, together with DLJSC in such capacity, the "Underwriters"),
pursuant to which the Purchaser will sell to the Underwriters all of the
Certificates that are to be registered under the Securities Act of 1933, as
amended (the "Securities Act"; and such Certificates, the "Registered
Certificates"). The Purchaser has also entered into a Certificate Purchase
Agreement, dated the date hereof (the
M-1-2
<PAGE>
"Certificate Purchase Agreement"), with DLJSC and Goldman Sachs (together in
such capacity, the "Initial Non-Registered Certificate Purchasers"), whereby
the Purchaser will sell to the Initial Purchasers all of the remaining
Certificates (the "Non-Registered Certificates").
1. Agreement to Purchase. Subject to the terms and
conditions set forth herein, the Seller agrees to sell, assign, transfer, set
over and otherwise convey (without recourse), and the Purchaser agrees to
purchase, the Mortgage Loans. The purchase and sale of the Mortgage Loans
shall take place on June 22, 1999 or such other date as shall be mutually
acceptable to the parties hereto (the "Closing Date"). The Mortgage Loans will
have an aggregate Cut-off Date Balance of approximately $552,068,611.55 (the
"Aggregate Cut-off Date Balance"). The purchase price for the Mortgage Loans
shall be equal to 100% of the Aggregate Cut-off Date Balance, plus accrued
interest thereon at the weighted average of the Mortgage Rates for the
Mortgage Loans from June 1, 1999 (the "Cut-off Date") to but not including the
Closing Date (net of related Master Servicing Fees and Trustee's Fees), and
such purchase price shall be paid to the Seller on the Closing Date by wire
transfer in immediately available funds or by such other method as shall be
mutually acceptable to the parties hereto.
2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to
receipt of the purchase price referred to in Section 1 above, the Seller does
hereby sell, assign, transfer, set over and otherwise convey (without
recourse) to the Purchaser all the Seller's right, title and interest in and
to the Mortgage Loans, including all interest and principal received on or
with respect to the Mortgage Loans after the Cut-off Date (other than
scheduled payments of interest and principal due on or before the Cut-off
Date), together with all of the Seller's right, title and interest in and to
the proceeds of any related title, hazard or other insurance policies and any
escrow, reserve or other comparable accounts related to the Mortgage Loans,
and all of the Seller's right, title and interest in, to and under the Third
Party Originator Agreements; provided, however, that the Seller's rights under
the Third Party Originator Agreements, as assignee, and the rights the Seller
is conveying hereunder, do not include any rights of its assignor to
indemnification under Section 4 of any such agreement. On the Closing Date,
the Seller shall transfer or cause to be transferred to the Master Servicer
the funds in such escrow, reserve or other comparable accounts related to the
Mortgage Loans, together with an amount equal to all collections on the
Mortgage Loans received prior to the Closing Date that represent scheduled
payments of principal and interest due and principal prepayments received
after the Cut-off Date.
(b) In connection with such transfer and assignment, the
Purchaser hereby directs the Seller to, and the Seller hereby agrees to,
deliver to, and deposit with, the Trustee (or a custodian appointed thereby (a
"Custodian")) the documents and/or instruments described on Exhibit A hereto
with respect to each Mortgage Loan (collectively as to each Mortgage Loan, the
"Mortgage File"); provided that if, as to any Mortgage Loan, the related
lender's title insurance policy has not yet been issued, the Seller agrees
that its delivery obligation shall be deemed to be satisfied as to such
missing title insurance policy, and such missing title insurance policy shall
be deemed to have been included in the related Mortgage File, so long as (i)
the Seller delivers to the Trustee on or before the Closing Date a commitment
for title insurance "marked-up" at the closing of such Mortgage Loan, (ii) the
M-1-3
<PAGE>
Seller delivers to the Trustee, promptly following the receipt thereof, the
original related lender's title insurance policy (or a copy thereof), and
(iii) as of the date that is 180 days following the Closing Date, the Seller
has delivered to the Trustee the original related lender's title insurance
policy. In addition, the Purchaser hereby directs the Seller to, and the
Seller hereby agrees to, deliver to, and deposit with, the Master Servicer all
of the documents and other items referred to in Section 2.01(f) of the Pooling
and Servicing Agreement with respect to the Mortgage Loans (collectively as to
each Mortgage Loan, the "Servicing File"), together with any and all unapplied
escrows and reserves in respect of the Mortgage Loans.
If the Seller cannot deliver on the Closing Date any
original or certified recorded document or original policy of title insurance
described on Exhibit A solely because the Seller is delayed in making such
delivery by reason of the fact that such original or certified recorded
document has not been returned by the appropriate recording office or such
original policy of title insurance has not yet been issued, then the Seller
shall notify the Purchaser, the Trustee and, if applicable, the Custodian in
writing of such delay and shall deliver such documents to the Trustee or
Custodian, as the case may be, promptly upon the Seller's receipt thereof.
3. Representations and Warranties.
(a) The Seller hereby makes, as of the Closing Date, to and
for the benefit of the Purchaser and its successors and assigns (including,
without limitation, the Trustee for the benefit of the Certificateholders),
each of the representations and warranties set forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as
of such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser and its successors and
assigns (including, without limitation, the Trustee for the benefit of the
Certificateholders), each of the representations and warranties set forth in
Exhibit C.
(c) The Seller hereby represents and warrants, as of the
Closing Date, to and for the benefit of the Purchaser only, that the Seller
has not dealt with any broker, investment banker, agent or other person (other
than the Purchaser and the Underwriters) who may be entitled to any commission
or compensation in connection with the sale to the Purchaser of the Mortgage
Loans.
(d) The Seller hereby agrees that it shall be deemed to make
to and for the benefit of the Purchaser and its successors and assigns
(including, without limitation, the Trustee for the benefit of the
Certificateholders), as of the date of substitution, with respect to any
replacement mortgage loan (a "Replacement Mortgage Loan") that is substituted
for a Defective Mortgage Loan (as defined in Section 4(a) hereof), whether by
the Seller pursuant to Section 4(a) or by a Third Party Originator pursuant to
the related Third Party Originator Agreement, each of the representations and
warranties set forth in Exhibit B and Exhibit C (other than, in the case of a
Replacement Mortgage Loan substituted by a Third Party Originator, the
representations and warranties set forth in Paragraph (d) of Exhibit B and
Paragraph 2 of Exhibit C). From and after the date of substitution, each
Replacement Mortgage Loan, if any, shall be deemed to constitute a "Mortgage
Loan" hereunder for all purposes.
M-1-4
<PAGE>
4. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within 90 days of the earlier of discovery or receipt of
notice by the Seller that there has been a breach of any of the
representations and warranties set forth in Exhibit B or Exhibit C and made by
the Seller pursuant to Section 3(a), Section 3(b) or Section 3(d), as the case
may be, which breach materially and adversely affects the value of any
Mortgage Loan or the interests of the legal and/or beneficial owner(s) thereof
(any such breach, a "Material Breach"), the Seller shall, subject to
subsection (b) below, (i) cure such Material Breach in all material respects
or (ii) repurchase each affected Mortgage Loan (each, a "Defective Mortgage
Loan") at the related Purchase Price in accordance with the directions of the
owner(s) of such Defective Mortgage Loan(s); provided that if (i) such
Material Breach does not relate to whether the Defective Mortgage Loan was, as
of the Closing Date, a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) such Material Breach is
capable of being cured but not within such 90-day period, (iii) the Seller has
commenced and is diligently proceeding with the cure of such Material Breach
within such 90-day period, and (iv) the Seller shall have delivered to the
owner(s) of the Defective Mortgage Loan a certification executed on behalf of
the Seller by an officer thereof setting forth the reason that such Material
Breach is not capable of being cured within the initial 90-day period and what
actions the Seller is pursuing in connection with the cure thereof and stating
that the Seller anticipates that such Material Breach will be cured within an
additional period not to exceed 90 more days, then the Seller (except with
respect to Third Party Mortgage Loans as provided in Section 4(b)) shall have
up to an additional 90 days to complete such cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, that if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach arises within the three-month period commencing on the Closing
Date (or within the two-year period commencing on the Closing Date if the
Defective Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), the Seller may, at its option, in lieu of repurchasing such
Defective Mortgage Loan (but, in any event, no later than such repurchase
would have to have been completed), (a) replace such Defective Mortgage Loan
with one or more substitute mortgage loans that individually and collectively
satisfy the requirements of the definition of "Qualifying Substitute Mortgage
Loan" set forth in the Pooling and Servicing Agreement, and (b) pay any
corresponding Substitution Shortfall Amount, such substitution and payment to
be effected in accordance with the terms of the Pooling and Servicing
Agreement (or, if the Defective Mortgage Loan is no longer subject thereto, in
accordance with the reasonable instructions of the owner(s) thereof). Any such
repurchase or replacement of a Defective Mortgage Loan shall be on a whole
loan, servicing released basis. The Seller shall have no obligation to monitor
the Mortgage Loans regarding the existence of a Material Breach, but if the
Seller discovers a Material Breach with respect to a Mortgage Loan, it will
notify the Purchaser.
Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan as contemplated by this Section 4(a), the Seller (i)
shall deliver the related Mortgage File for each such substitute mortgage loan
to the owner(s) of the Defective Mortgage Loan, (ii) certify that such
substitute mortgage loan satisfies or such substitute mortgage loans satisfy,
as the case may be, all of the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement and
(iii) send such certification to such owner(s). No mortgage loan may be
substituted for a Defective Mortgage Loan as contemplated by this Section 4(a)
if the
M-1-5
<PAGE>
Defective Mortgage Loan to be replaced was itself a Replacement Mortgage Loan.
Monthly Payments due with respect to each Replacement Mortgage Loan (if any)
after the related date of substitution, and Monthly Payments due with respect
to each Defective Mortgage Loan (if any) after the Cut-off Date and on or
prior to the related date of repurchase or substitution, shall belong to the
Purchaser and its successors and assigns. Monthly Payments due with respect to
each Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or substitution, shall
belong to the Seller (or, in the case of a Defective Mortgage Loan that is
repurchased or replaced by a Third Party Originator, to such Third Party
Originator).
If any Defective Mortgage Loan is to be repurchased or
replaced as contemplated by this Section 4(a), the Seller shall amend the
Mortgage Loan Schedule to reflect the removal of the Defective Mortgage Loan
and, if applicable, the substitution of the related Replacement Mortgage
Loan(s) and shall forward such amended schedule to the owner(s) of such
Defective Mortgage Loan.
Except as set forth in Section 8, it is understood and
agreed that the obligations of the Seller set forth in this Section 4(a) to
cure a Material Breach or repurchase or replace the related Defective Mortgage
Loan(s), constitute the sole remedies available to the Purchaser or any
assignee respecting a breach of the representations and warranties set forth
on Exhibits B and C and made by the Seller pursuant to Sections 3(a), 3(b) and
3(d), respectively.
(b) It is hereby acknowledged that with respect to the Third
Party Mortgage Loans, if any, the rights of the Seller in respect of those
certain representations and warranties made by the Third Party Originators
pursuant to the Third Party Originator Agreements and assigned by the Seller
to the Purchaser pursuant hereto will, in turn, be assigned by the Purchaser
to the Trustee, as trustee under the Pooling and Servicing Agreement, for the
benefit of the Certificateholders. Accordingly, it is hereby agreed that if,
with respect to any such Third Party Mortgage Loan, there exists a breach of
any of the related Third Party Originator's representations and warranties for
which such Third Party Originator could be required to repurchase or (at its
option, to the extent of its substitution rights and subject to the Seller's
right to approve any Replacement Mortgage Loan delivered thereunder) replace
such Third Party Mortgage Loan, then notwithstanding that such Third Party
Mortgage Loan may also constitute a Defective Mortgage Loan for purposes of
Section 4(a) by reason of a Material Breach of any of the Seller's
representations and warranties set forth in Exhibits B and C made pursuant to
Sections 3(a), 3(b) and 3(d), respectively, the Seller shall be deemed not to
have notice of such Material Breach (and, correspondingly, not to be obligated
to proceed with the cure of such Material Breach or the repurchase of or
substitution for such Third Party Mortgage Loan) unless and until the related
Third Party Originator shall have failed to cure such Material Breach or
repurchase or replace such Third Party Mortgage Loan during the cure period
for the breach of its representations and warranties set forth in the related
Third Party Originator Agreement; provided that this sentence shall not apply
in the event of a Material Breach that relates to whether the Defective
Mortgage Loan was, as of the Closing Date, a Qualified Mortgage; and,
provided, further, that, if, as a result of the failure of a Third Party
Originator to cure a Material Breach on the part of the Seller with respect to
a Third Party Mortgage Loan or repurchase or replace such Third Party Mortgage
Loan during the applicable cure period, the Seller is obligated to cure such
Material Breach on its part or repurchase or replace such Third Party
M-1-6
<PAGE>
Mortgage Loan, the Seller shall be obligated to do so within 90 days following
the end of the cure/repurchase/substitution period for the related Third Party
Originator and the Seller shall not be entitled to the additional 90-day cure
period that is provided for in Section 4(a) with respect to Mortgage Loans
that are not Third Party Mortgage Loans. In addition, if the price at which
any Third Party Mortgage Loan is required to be repurchased by the related
Third Party Originator, or the additional cash amount to be paid together with
the delivery of one or more Replacement Mortgage Loans substituted by the
related Third Party Originator for any Third Party Mortgage Loan, in either
case in connection with a breach of such Third Party Originator's
representations and warranties as contemplated above, is less than the
applicable Purchase Price or Substitution Shortfall Amount, as the case may
be, the Seller shall make-up the difference out of its own funds (payment of
such difference to be made in accordance with the directions of the owner(s)
of such Third Party Mortgage Loan at the time it is repurchased or replaced by
such Third Party Originator).
(c) It shall be a condition to any repurchase of or
substitution for a Defective Mortgage Loan by the Seller pursuant to Section
4(a) that the Trustee as assignee of the Purchaser shall have executed and
delivered such instruments of transfer or assignment then presented to it by
the Seller, in each case without recourse, as shall be necessary to vest in
the Seller (i) the legal and beneficial ownership of such Defective Mortgage
Loan (including any property acquired in respect thereof or proceeds of any
insurance policy with respect thereto), to the extent that such ownership
interest was transferred to the Trustee under the Pooling and Servicing
Agreement, and (ii) in the case of a Third Party Mortgage Loan, the rights in
respect of such Third Party Mortgage Loan under the related Third Party
Originator Agreement that were assigned to the Trustee under the Pooling and
Servicing Agreement.
(d) The Seller hereby acknowledges and consents to the
assignment by the Purchaser to the Trustee, as trustee under the Pooling and
Servicing Agreement, for the benefit of the Certificateholders, of (i) the
representations and warranties set forth in Exhibits B and C and made by the
Seller pursuant to Sections 3(a), 3(b) and 3(d), respectively, (ii) the
obligation of the Seller to repurchase or replace a Defective Mortgage Loan in
connection with a Material Breach pursuant to Section 4(a), and (iii) the
obligation of the Seller to deliver certain documentation, funds and other
assets relating to the Mortgage Loans pursuant to Section 2. The Trustee or
its designee may enforce such obligations as provided in Section 11(a) hereof
or as assignee.
5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Sidley & Austin, 875 Third
Avenue, New York, New York 10022 at 10:00 a.m., New York City time (or at such
other place and time as may be determined by the Purchaser), on the Closing
Date.
The Closing shall be subject to each of the following
conditions:
(i) All of the representations and warranties of the
Seller made pursuant to Section 3 of this Agreement
shall be true and correct as of the Closing Date;
M-1-7
<PAGE>
(ii) All documents specified in Section 6 of this
Agreement (the "Closing Documents"), in such forms
as are agreed upon and acceptable to the Purchaser,
shall be duly executed and delivered by all
signatories as required pursuant to the respective
terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee or a Custodian and to the Master Servicer,
respectively, all documents, funds and other assets
required to be delivered thereto pursuant to
Section 2 of this Agreement;
(iv) All other terms and conditions of this Agreement
required to be complied with on or before the
Closing Date shall have been complied with, and the
Seller shall have the ability to comply with all
terms and conditions and perform all duties and
obligations required to be complied with or
performed after the Closing Date; and
(v) The Seller shall have paid all fees and expenses
payable by it to the Purchaser or otherwise
pursuant to this Agreement.
Both parties agree to use their best efforts to perform
their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
6. Closing Documents. The Closing Documents shall consist of
the following:
(i) This Agreement duly executed by the Purchaser and the
Seller;
(ii) An Officer's Certificate substantially in the form of
Exhibit D-1 hereto, executed by an executive officer
of the Seller, in his or her individual capacity,
and dated the Closing Date, and upon which the
Purchaser, DLJSC, Goldman Sachs, the Trustee and the
Certificateholders (collectively, for purposes of
this Section 6, the "Interested Parties") may rely,
attaching thereto as exhibits (A) the resolutions of
the board of directors of the Seller authorizing the
Seller's entering into the transactions contemplated
by this Agreement, and (B) the certificate of
incorporation and by-laws of the Seller;
(iii) A certificate of good standing of the Seller issued
by the Secretary of State of the State of Delaware
not earlier than 10 days prior to the Closing Date,
and upon which the Interested Parties may rely;
(iv) A Certificate of the Seller substantially in the
form of Exhibit D-2 hereto, executed by an
executive officer of the Seller and dated the
Closing Date, and upon which the Interested Parties
may rely;
M-1-8
<PAGE>
(v) A written opinion of Long Aldridge & Norman, counsel
for the Seller, substantially in the form of Exhibit
D-3 hereto, with any modifications required by any
rating agency (each, a "Rating Agency") identified
in the Prospectus Supplement or the Memorandum (each
as defined in Section 8), --------- dated the
Closing Date and addressed to the Purchaser, DLJSC,
Goldman Sachs, the Trustee and, if requested
thereby, each Rating Agency, together with such
other written opinions as may be required by any
Rating Agency; and
(vi) Such further certificates, opinions and documents
as the Purchaser may reasonably request.
7. Costs. All costs and expenses incidental to the
transactions contemplated by this Agreement, including without limitation, any
recording fees or fees for title policy endorsements and continuations and
fees and expenses of its counsel, shall be paid and payable in accordance with
the Term Sheet for the Joint Conduit Securitization dated as of April 26, 1999
(the "Term Sheet"), among DLJSC, GE Capital Access, Inc. and Goldman Sachs
Mortgage Company.
8. Indemnification.
(a) The Seller shall indemnify and hold harmless the
Purchaser, DLJSC, Goldman Sachs, GE Capital Access, Inc. ("GECA"), their
respective officers and directors, and each person, if any, who controls the
Purchaser, DLJSC, Goldman Sachs or GECA within the meaning of either Section
15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (the Purchaser, DLJSC, Goldman Sachs, GECA,
their respective officers and directors and any such controlling persons,
collectively, for purposes of this Section 8, the "Indemnified Parties"),
against any and all losses, claims, damages, liabilities, costs and expenses,
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities, costs or expenses (or actions in respect thereof) (i)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in (A) the Prospectus Supplement
(including, without limitation, Exhibit A-1 and Exhibit A-2 thereto and the
Diskette) or any preliminary version thereof (any such preliminary version
thereof, a "Preliminary Prospectus Supplement"), the Memorandum (including,
without limitation, the Prospectus Supplement as attached as Exhibit A
thereto) or, insofar as they are required to be filed as part of the
Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or
in any revision or amendment of or supplement to any of the foregoing
documents, or (B) any items similar to Computational Materials and/or ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates,
or (ii) arise out of or are based upon the omission or alleged omission (in
the case of an omission or alleged omission in the ABS Term Sheets and the
Computational Materials relating to the Registered Certificates, when read in
conjunction with the Prospectus and, in the case of an omission or alleged
omission in items similar to Computational Materials and ABS Term Sheets
furnished to prospective investors in the Non-Registered Certificates, when
read in conjunction with the Memorandum and, in the case of an omission or
alleged omission in the Memorandum, when read
M-1-9
<PAGE>
together with other information made available for review by investors in the
Non-Registered Certificates) to state in any of the printed materials
described in the immediately preceding clause (i) (collectively, the
"Disclosure Documents") a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; but, in the case of clauses (i) and (ii), only if and to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission (I) arises out of or is based upon an untrue statement or
omission with respect to the information regarding the Mortgage Loans, the
related Borrowers or the related Mortgaged Properties contained in the Master
Tape (it being acknowledged that the Master Tape was used to prepare the
Prospectus Supplement (including, without limitation, Exhibit A-1 and Exhibit
A-2 thereto and the Diskette) and any Preliminary Prospectus Supplement, the
Memorandum, the Computational Materials and ABS Term Sheets with respect to
the Registered Certificates and any items similar to Computational Materials
and ABS Term Sheets forwarded to prospective investors in the Non-Registered
Certificates), (II) arises out of an untrue statement or alleged untrue
statement or omission or alleged omission made in any of the Disclosure
Documents in reliance upon and in conformity with any other information
concerning the characteristics of the Mortgage Loans, the related Borrowers or
the related Mortgaged Properties furnished to the Company or the Underwriters
by the Seller, (III) is contained in the information regarding the Mortgage
Loans, the related Borrowers, the related Mortgaged Properties or the Seller
set forth in the Prospectus Supplement, any Preliminary Prospectus Supplement
and the Memorandum under the headings "Summary of Prospectus Supplement--The
Mortgage Loans and the Mortgaged Properties", "Risk Factors" and "Description
of the Mortgage Pool" or on Exhibit A-1 to the Prospectus Supplement or on the
Diskette, or (IV) arises out of or is based upon a breach of the
representations and warranties of the Seller set forth in or made pursuant to
Section 3 (such representations and warranties, together with the information
described in the preceding clauses (I), (II) and (III), the "Seller
Information"); provided that the indemnification provided by this Section 8
shall not apply to the extent that such untrue statement or omission was made
as a result of an error in (x) the manipulation of, or (y) any calculations
based upon, or (z) any aggregation (other than an aggregation made in the
Master Tape by the Seller) of, the information regarding the Mortgage Loans,
the related Borrowers, the related Mortgaged Properties or the Seller,
including without limitation the aggregation of such information with
comparable information relating to the Other Loans; and, provided, further,
that the provisions of this Section 8 shall not apply for the purposes of
indemnifying or holding harmless any Indemnified Party (other than the
Purchaser) for any liability (through an obligation to indemnify or otherwise)
that such party might have to the Other Loan Sellers or their respective
officers, directors and affiliates. Notwithstanding the foregoing, the
indemnity provided for in the preceding sentence with respect to any loss,
claim, damage, liability, cost or expense referred to therein and arising out
of or based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus Supplement, any
Computational Materials or ABS Term Sheets with respect to the Registered
Certificates or any items similar to Computational Materials or ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates,
or any revision or amendment of or supplement to any such document, shall not
inure to the benefit of any Underwriter or Initial Non-Registered Certificate
Purchaser (or any officer, director or controlling person in respect thereof)
from whom the person asserting such loss, claim, damage, liability, cost or
expense purchased the Certificates which are the subject thereof if: (i) in
the case of any Preliminary Prospectus Supplement (or any revision or
amendment thereof or supplement thereto), such Underwriter did not deliver to
such person a copy of the Prospectus Supplement (or the Prospectus
M-1-10
<PAGE>
Supplement as most recently amended or supplemented) at or prior to the
confirmation of the sale of the subject Certificates to such person in any
case where such delivery is required by the Securities Act, the Purchaser has
previously furnished to such Underwriter copies thereof in sufficient quantity
and the untrue statement or alleged untrue statement or omission or alleged
omission made in such Preliminary Prospectus Supplement was corrected in the
Prospectus Supplement (or the Prospectus Supplement as most recently amended
or supplemented) and such correction would have cured the defect giving rise
to any such loss, claim, damage, liability, cost or expense; and (ii) in the
case of any Computational Materials or ABS Term Sheets with respect to the
Registered Certificates or any items similar to Computational Materials or ABS
Term Sheets forwarded to prospective investors in the Non-Registered
Certificates (or any revision or amendment of or supplement to any such
document), the Seller notified such Underwriter or Initial Non-Registered
Certificate Purchaser, as the case may be, in writing of the Collateral Error
that gave rise to the untrue statement or alleged untrue statement or omission
or alleged omission or provided in written or electronic format information
superseding or correcting such Collateral Error prior to the time of
confirmation of sale of the subject Certificates to such person, and such
Underwriter or Initial Non-Registered Certificate Purchaser, as the case may
be, failed to deliver to such person corrected materials (or, if the
superseding or correcting information was contained in the Prospectus
Supplement or Memorandum, failed to deliver to such person the Prospectus
Supplement or Memorandum, as the case may be) at or prior to confirmation of
such sale to such person.
The Seller acknowledges that the Purchaser, DLJSC and
Goldman Sachs will enter into the Underwriting Agreement and Certificate
Purchase Agreement, and the Purchaser and GECA will enter into a mortgage loan
purchase and sale agreement, in each case in reliance upon the indemnity
agreement of the Seller provided for in the preceding paragraph. Such
indemnity agreement will be in addition to any liability which the Seller may
otherwise have.
For purposes of this Agreement, "Registration Statement"
shall mean the registration statement No. 333-59167 filed by the Purchaser on
Form S-3, including, without limitation, all exhibits thereto and information
incorporated therein by reference; "Prospectus" shall mean the prospectus
dated June 3, 1999, as supplemented by the prospectus supplement dated June
11, 1999 (the "Prospectus Supplement"), relating to the Registered
Certificates, including, without limitation, all annexes and exhibits thereto
and the Diskette; "Memorandum" shall mean the private placement memorandum
dated June 11, 1999, relating to certain classes of the Non-Registered
Certificates, including, without limitation, all annexes and exhibits thereto;
"Computational Materials" shall have the meaning assigned thereto in the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to
Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated,
and Kidder Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Kidder Letters"); "ABS Term
Sheets" shall have the meaning assigned thereto in the no-action letter dated
February 17, 1995 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (the "PSA Letter" and,
together with the Kidder Letters, the "No-Action Letters"); "Diskette" shall
mean the diskette attached to the Prospectus Supplement, any Preliminary
Prospectus Supplement and the Memorandum; "Master Tape" shall mean the
compilation of underlying information and data regarding the Mortgage Loans
and the Other Loans covered by the Independent
M-1-11
<PAGE>
Accountants Report on Applying Agreed Upon Procedures dated June 3, 1999, as
supplemented to the Closing Date, and rendered by Arthur Andersen LLP; and
"Collateral Error" shall mean any error in the information regarding the
Seller, the Mortgage Loans, the related Mortgaged Properties or the related
Borrowers contained in the Master Tape or any other information supplied by
the Seller to the Purchaser, DLJSC or Goldman Sachs or any breach of the
representations and warranties made by the Seller in or pursuant to Section 3.
(b) In case any proceeding (including any governmental
investigation) shall be instituted involving any Indemnified Party, the
Indemnified Party shall promptly notify the Seller in writing, and the Seller,
upon request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party and
any other Indemnified Parties the Seller may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel relating to
such proceeding. In any such proceeding, any Indemnified Party shall have the
right to select its own counsel, and the reasonable fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the
Seller and such Indemnified Party shall have mutually agreed to the retention
of such separate counsel, (ii) the named parties to any such proceeding
(including, without limitation, any impleaded parties) include both the Seller
and such Indemnified Party, and representation of both such parties by the
same counsel would be inappropriate due to actual or potential differing
interests or differing or additional defenses between or among them, or (iii)
the Seller shall have failed within a reasonable period to retain counsel
reasonably satisfactory to the Indemnified Party in accordance with the
preceding sentence. It is understood that the Seller shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the legal fees and disbursements of more than one legal counsel for all
the Indemnified Parties. The Seller may, at its option, at any time upon
written notice to the Indemnified Party assume the defense of any proceeding
and may designate counsel satisfactory to the Indemnified Party in connection
therewith provided that the counsel so designated would have no actual or
potential conflict of interest in connection with such representation. Unless
it shall assume the defense of any proceeding, the Seller shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the Seller agrees to indemnify the Indemnified Party from and
against any loss or liability by reason of such settlement or judgment. If the
Seller assumes the defense of any proceeding, the Seller shall be entitled to
settle such proceeding with the written consent of the Indemnified Party in
connection with all claims which have been asserted against the Indemnified
Party in such proceeding by the other parties to such settlement, and the
Seller shall be entitled to settle such proceeding without the written consent
of the Indemnified Party, provided that the Indemnified Party receives a full
and unconditional release of all claims asserted against such Indemnified
Party from all liability arising out of such litigation, investigation,
proceeding or claim and such release does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of such
Indemnified Party.
(c) If the indemnification provided for in Section 8(a) is
unavailable to an Indemnified Party or insufficient to hold it harmless in
respect of any losses, claims, damages, liabilities, costs or expenses
referred to in and intended to be covered under Section 8(a), then the Seller
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages, liabilities, costs or expenses, in
such proportion as is appropriate to reflect
M-1-12
<PAGE>
the relative fault of the Seller and the Indemnified Party in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Indemnified Party and the Seller shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such parties.
(d) The parties hereto agree that it would not be just and
equitable if contribution pursuant to Section 8(c) above were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in Section 8(c) above. The
amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages, liabilities, costs or expenses referred to above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Party in connection
with investigating or defending any such action or claim (except where the
Indemnified Party is required to bear such expenses pursuant to this Section
8), which expenses the Seller shall pay as and when incurred, at the request
of the Indemnified Party, and to the extent that the Seller will be ultimately
obligated to pay such expenses. If and to the extent that any expenses so paid
by the Seller are subsequently determined to not be required to be borne by
the Seller hereunder, the Indemnified Party which received such payment shall
promptly refund the amount so paid to the Seller. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in
this Section 8 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any of the Indemnified Parties, and (iii) acceptance of and payment
for the Mortgage Loans.
9. Notices. All communications hereunder shall be in writing
and effective only upon receipt and, if sent to the Purchaser, will be sent by
regular prepaid U.S. Mail or prepaid reputable overnight courier or delivered
by hand and confirmed to it at 277 Park Avenue, 9th Floor, New York, New York
10172, Attention: N. Dante LaRocca, or such other address as may be designated
by the Purchaser to the Seller and DLJ Mortgage Capital, Inc. (the Additional
Party") in writing, or, if sent to the Seller, will be sent by regular prepaid
U.S. Mail or prepaid reliable overnight courier or delivered by hand and
confirmed to it at 3414 Peachtree Road, N.E., Suite 1140, Atlanta, Georgia
30326-1113, Attention: President, or such other address as may be designated
by the Seller to the Purchaser in writing, or, if sent to the Additional
Party, will be sent by regular prepaid U.S. Mail or prepaid reputable
overnight courier or delivered by hand and confirmed to it at 277 Park Avenue,
New York, New York 10172, Attention: N. Dante LaRocca, or such other address
as may be designated by the Additional Party to the Purchaser in writing.
M-1-13
<PAGE>
10. Miscellaneous. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought. This Agreement may not be changed in any manner
which would have a material adverse effect on Holders of the Certificates
without the prior written consent of the Trustee. This Agreement also may not
be changed in any manner which would have a material adverse effect on any
other third party beneficiary hereof without the prior written consent of that
person. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which
shall together constitute but one and the same instrument. This Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns, and no other person will have any right or
obligation hereunder, other than as provided in Section 11 hereof.
11. Third Party Beneficiaries.
(a) The Trustee and the Certificateholders are intended
third party beneficiaries of the representations, warranties and covenants
made by the Seller in Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and, to the
extent relevant to the foregoing, in Sections 9, 10, 13, 14, 15, 16, 17 and
19) of this Agreement. It is acknowledged that such representations,
warranties and covenants of the Seller may be enforced by the Trustee against
the Seller, on behalf of itself and the Certificateholders, to the same extent
as if they were parties hereto.
(b) Each of DLJSC and Goldman Sachs is an intended third
party beneficiary of the representations, warranties and covenants of the
Seller set forth in Sections 3(a), 5, 6 and 8 and the covenants of the
Additional Party set forth in Section 20 (and, to the extent relevant to the
foregoing, in Sections 10, 13, 14, 15, 16 and 17) of this Agreement. It is
acknowledged and agreed that such representations, warranties and covenants
may be enforced by or on behalf of either DLJSC or Goldman Sachs against the
Seller and, with respect to Section 20, the Additional Party to the same
extent as if it was a party hereto.
(c) GECA and each of the officers, directors and controlling
persons of each of the Purchaser, DLJSC, Goldman Sachs and GECA referred to in
Sections 8 and 20 hereof is an intended third party beneficiary of the
representations, warranties, covenants and indemnities of the Seller set forth
in Section 8 and the covenants of the Additional Party set forth in Section 20
(and, to the extent relevant to the foregoing, in Sections 10, 13, 14, 15, 16
and 17) of this Agreement. It is acknowledged and agreed that such
representations, warranties, covenants and indemnities may be enforced by or
on behalf of any such person or entity against the Seller and, with respect to
Section 20, the Additional Party to the same extent as if such person or
entity was a party hereto.
12. Characterization. It is the express intent of the
parties hereto that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans. Furthermore, it is not the
intention of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Seller to secure a debt or other obligation of the
Seller. However, in the event that, notwithstanding the intent of the parties,
the Mortgage Loans are held to continue to be property of the Seller then: (a)
this Agreement shall also be deemed to be a security agreement under
applicable law; (b) the transfer
M-1-14
<PAGE>
of the Mortgage Loans provided for herein shall be deemed to be a grant by the
Seller to the Purchaser of a first priority security interest in all of the
Seller's right, title and interest in and to the Mortgage Loans and all
amounts payable to the holder(s) of the Mortgage Loans in accordance with the
terms thereof (other than scheduled payments of interest and principal due on
or before the Cutoff Date) and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the assignments by the Purchaser to the Trustee of its interests
in the Mortgage Loans as contemplated by Section 4(d) hereof shall be deemed
to be an assignment of any security interest created hereunder; (d) the
possession by the Purchaser or any successor thereto of the related Mortgage
Notes and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-305 of the Georgia Uniform Commercial Code, the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; and (e) notifications to, and acknowledgments, receipts or
confirmations from, persons or entities holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the Purchaser
or any successor thereto for the purpose of perfecting such security interest
under applicable law. The Seller and the Purchaser shall, to the extent
consistent with this Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in
the Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement.
13. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates
of officers of the Seller delivered pursuant hereto, shall remain operative
and in full force and effect and shall survive delivery of the Mortgage Loans
by the Seller to the Purchaser (and by the Purchaser to the Trustee),
notwithstanding any restrictive or qualified endorsement or assignment in
respect of any Mortgage Loan.
14. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
is held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable
law, the parties hereto waive any provision of law which prohibits or renders
void or unenforceable any provision hereof.
15. Governing Law; Consent to Jurisdiction. This Agreement
will be governed by and construed in accordance with the substantive laws of
the State of New York, applicable to agreements made and to be performed
entirely in said state. To the fullest extent permitted under applicable law,
the Seller hereby irrevocably (i) submits to the jurisdiction of any New York
State and federal courts sitting in New York City with respect to matters
arising out of
M-1-15
<PAGE>
or relating to this Agreement; (ii) agrees that all claims with respect to
such action or proceeding may be heard and determined in such New York State
or federal courts; (iii) waives, to the fullest possible extent, the defense
of an inconvenient forum; and (iv) agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
16. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
17. Successors and Assigns. The rights and obligations of
the Seller and the Additional Party under this Agreement shall not be assigned
by the Seller or the Additional Party, as the case may be, without the prior
written consent of the Purchaser, except that any person into which the Seller
or the Additional Party, as the case may be, may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to
which the Seller or the Additional Party, as the case may be, is a party, or
any person succeeding to all or substantially all of the business of the
Seller, shall be the successor to the Seller or the Additional Party, as the
case may be, hereunder. The Purchaser has the right to assign its interest
under this Agreement, in whole or in part, as contemplated by Section 4(d) or
as may otherwise be required to effect the purposes of the Pooling and
Servicing Agreement, and the assignee shall, to the extent of such assignment,
succeed to the rights and obligations hereunder of the Purchaser.
18. Information. The Seller shall provide the Purchaser with
such information about the Seller, the Mortgage Loans and the Seller's
underwriting and servicing procedures as is (i) customary in commercial
mortgage loan securitization transactions, (ii) required by a Rating Agency or
a governmental agency or body or (iii) reasonably requested by the Purchaser
for use in a public or private disclosure document.
19. Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that certain groups
of Mortgage Loans identified on the Mortgage Loan Schedule as being
cross-collateralized with each other, are, in the case of each such particular
group of Mortgage Loans (each, a "Cross-Collateralized Group"), evidenced by a
single mortgage note and secured by mortgages, deeds of trust and/or deeds to
secure debt on all the Mortgaged Properties identified on the Mortgage Loan
Schedule as corresponding to such Cross-Collateralized Group. Each such
Mortgage Loan actually represents a portion of the entire indebtedness
evidenced by the related mortgage note that has been allocated to the
Mortgaged Property identified on the Mortgage Loan Schedule as corresponding
to such Mortgage Loan. Each of the Mortgage Loans constituting each such
Cross-Collateralized Group shall be deemed to be a separate Mortgage Loan that
is (a) evidenced by a mortgage note identical to the mortgage note that
evidences such Cross-Collateralized Group (but in a principal amount equal to
the principal balance allocated to such Mortgage Loan) and (b) cross-defaulted
and cross-collateralized with each other Mortgage Loan in such
Cross-Collateralized Group. In addition, it is hereby acknowledged that
certain other groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other, are, in the case of
each such particular group of Mortgage Loans (each, also a
"Cross-Collateralized Group"), by their terms, cross-defaulted and
cross-collateralized.
M-1-16
<PAGE>
For purposes of reference, the Mortgaged Property that relates or corresponds
to any of the Mortgage Loans referred to in this Section 19 shall be the
property identified in the Mortgage Loan Schedule as corresponding thereto.
The provisions of this Agreement, including, without limitation, each of the
representations and warranties set forth in Exhibit C hereto and each of the
capitalized terms used herein but defined in the Pooling and Servicing
Agreement, shall be interpreted in a manner consistent with this Section 19.
In addition, if there exists with respect to any Cross-Collateralized Group
only one original of any document referred to in the definition of "Mortgage
File" and covering all the Mortgage Loans in such Cross-Collateralized Group,
the inclusion of the original of such document in the Mortgage File for any of
the Mortgage Loans constituting such Cross-Collateralized Group shall be
deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan.
20. Obligations of the Additional Party. The Additional
Party agrees, in consideration of and as an inducement to the Purchaser's
purchase of the Mortgage Loans from the Seller, to indemnify and hold harmless
the Purchaser, DLJSC, Goldman Sachs, GECA, their respective officers and
directors, and any person who controls any of the Purchaser, DLJSC, Goldman
Sachs or GECA within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any failure by the Seller to perform
any of its obligations under Section 8 hereof (as they relate to the indemnity
agreement of the Seller in Section 8(a) and the corresponding contribution
obligations in Section 8(c) (the "Covered Obligations")), promptly after
receipt from any Indemnified Party of written notice of any such failure. The
Additional Party hereby waives notice of acceptance of its obligations
hereunder and notice of any obligation or liability to which it may apply, and
waives presentment, demand for payment, protest, notice of dishonor or
non-payment of any such obligation or liability, suit or the taking of other
action by any party hereto against, and any other notice to, the Additional
Party. The Additional Party's obligations hereunder shall not be affected by
any events, occurrences or circumstances which might otherwise constitute a
legal or equitable discharge or defense of a guarantor or surety, and such
obligations will only be discharged by full, complete and final payment of the
Covered Obligations.
M-1-17
<PAGE>
IN WITNESS WHEREOF, the Purchaser, the Seller and the
Additional Party have caused this Agreement to be duly executed by their
respective officers as of the day and year first above written.
COLUMN FINANCIAL, INC.
By:
------------------------------------
Name:
Title:
DLJ COMMERCIAL MORTGAGE CORP.
By:
------------------------------------
Name:
Title:
DLJ MORTGAGE CAPITAL, INC.**
By:
------------------------------------
Name:
Title:
- --------
** DLJ Mortgage Capital, Inc. is executing this Agreement solely with respect
to its obligations set forth in Section 20 and with respect to the matters set
forth in Sections 9, 10, 11, 13, 14, 15 and 17 .
M-1-18
<PAGE>
Exhibit A
Certain Documents to be Delivered by the Seller
with Respect to the Mortgage Loans
The documents and instruments to be delivered to the Trustee
(or a Custodian on behalf of the Trustee) in respect of each Mortgage Loan
pursuant to Section 2(a) of this Agreement are, subject to Section 19, as
follows:
(i) the original executed Mortgage Note, endorsed
(either on the face thereof or pursuant to a
separate allonge) "Pay to the order of Norwest Bank
Minnesota, National Association as trustee for the
registered holders of DLJ Commercial Mortgage
Corp., Commercial Mortgage Pass-Through
Certificates, Series
1999-CG2, without recourse";
(ii) an original or a copy of the Mortgage and of any
intervening assignments thereof that precede the
assignment referred to in clause (iv) below, in
each case (unless such document has not yet been
returned from the applicable recording office) with
evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from
the Mortgage) and of any intervening assignments
thereof that precede the assignment referred to in
clause (v) below, in each case (unless such
document has not yet been returned from the
applicable recording office) with evidence of
recording indicated thereon;
(iv) an original executed assignment of the Mortgage, in
favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders
of DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series
1999-CG2, in recordable form;
(v) an original executed assignment of any related
Assignment of Leases (if such item is a document
separate from the Mortgage), in favor of Norwest
Bank Minnesota, National Association, as trustee
for the registered holders of DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2, in recordable form;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution
agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have
been modified or the Mortgage Loan has been
assumed;
(vii) the original or a copy of the policy of lender's
title insurance;
-1-
<PAGE>
(viii) filed copies of any prior UCC Financing Statements
in favor of the originator of such Mortgage Loan
or in favor of any assignee prior to the Trustee
(but only to the extent the Seller had possession
of such UCC Financing Statements prior to the
Closing Date) and, if there is an effective UCC
Financing Statement in favor of the Seller on record
with the applicable public office for UCC Financing
Statements, an original UCC-2 or UCC-3, as
appropriate, in favor of Norwest Bank Minnesota,
National Association, as trustee for the registered
holders of DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-CG2;
(ix) any environmental indemnity agreement, power of
attorney, guaranty, property management agreement,
Ground Lease, intercreditor agreement, cash
management agreement and lock-box agreement,
relating to such Mortgage Loan;
(x) any original documents (including any security
agreements and any Letters of Credit and related
letter of credit reimbursement agreements) relating
to, evidencing or constituting Additional
Collateral; and
(xi) any insurance certificates relating to hazard
insurance policies maintained by the Borrower with
respect to the related Mortgaged Property that are
in the possession of the Seller.
-2-
<PAGE>
Exhibit B
Representations and Warranties with respect to the Seller
The Seller hereby represents and warrants that, as of the
Closing Date:
(a) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and is
possessed of all licenses necessary to carry on its business and is qualified
and in good standing and in compliance with the laws of each State in which
any Mortgaged Property securing a Mortgage Loan is located to the extent
necessary to ensure the enforceability of such Mortgage Loan as contemplated
by the terms of this Agreement and the Pooling and Servicing Agreement.
(b) The execution and delivery by the Seller of this
Agreement, the execution (including, without limitation, by facsimile or
machine signature) and delivery of any and all documents contemplated by this
Agreement, including, without limitation, endorsements of Mortgage Notes, and
the performance and compliance by the Seller with the terms of this Agreement
will not (i) violate the Seller's organizational documents, (ii) violate any
law or regulation or any administrative decree or order to which the Seller is
subject or (iii) constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the breach
of, any indenture, agreement or other instrument to which the Seller is a
party or by which it is bound or which is applicable to it or any of its
assets.
(c) The Seller has full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(d) The Seller has the full right, power and authority to
sell, assign, transfer, set over and convey the Mortgage Loans (and, in the
event that the related transaction is deemed to constitute a loan secured by
all or part of the Mortgage Loans, to pledge the Mortgage Loans) in accordance
with, and under the conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery
hereof by the Purchaser, this Agreement constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance with
the terms hereof, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (ii) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law,
and (iii) public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws.
-1-
<PAGE>
(f) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms
hereof will not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state or
local governmental or regulatory authority, which violation, in the Seller's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Seller to perform its obligations under
this Agreement or the financial condition of the Seller.
(g) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which, if determined adversely to the
Seller, would prohibit the Seller from entering into this Agreement or, in the
Seller's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Seller to perform its obligations
hereunder or the financial condition of the Seller.
(h) The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in
effect in any applicable jurisdiction.
(i) The principal place of business and chief executive
office of the Seller is located in Atlanta, Georgia.
(j) The Seller is a wholly-owned subsidiary of DLJ Mortgage
Capital, Inc.
(k) The Seller is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act.
-2-
<PAGE>
Exhibit C
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Exhibit C, the phrase "the Seller's
knowledge" and other words and phrases of like import shall mean the actual
state of knowledge of the Seller regarding the matters referred to, in each
case without having conducted any independent inquiry into such matters and
without any obligation to have done so (except as expressly set forth herein).
The Seller hereby represents and warrants that, as of the
date hereinbelow specified or, if no such date is specified, as of the Closing
Date and subject to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true, complete
(in accordance with the requirements of the Pooling and Servicing Agreement)
and correct in all material respects as of the date of this Agreement and as
of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer to the Purchaser of the Mortgage Loans, the Seller had good title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to transfer and assign each Mortgage Loan to or at the
direction of the Purchaser free and clear of any and all pledges, liens,
charges, security interests and/or other encumbrances. Upon completion of the
conveyance contemplated hereby, the Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to such
Mortgage Loan free and clear of any pledge, lien or security interest created
by or through the Seller. The sale of the Mortgage Loans to the Purchaser or
its designee does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained.
3. Payment Record. As of the Closing Date, no scheduled
payment of principal and interest under any Mortgage Loan was 30 days or more
past due, and no Mortgage Loan has been 30 days or more delinquent in the
twelve-month period immediately preceding the Closing Date.
4. Lien; Valid Assignment. The Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and,
subject to the exceptions set forth in Paragraph 13 below, enforceable first
priority lien upon the related Mortgaged Property, prior to all other liens
and encumbrances, except for (a) the lien for current real estate taxes and
assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a proforma title policy or a
"marked-up" commitment), none of which materially interferes with the security
intended to be provided by such Mortgage, the current use of the related
Mortgaged Property or the current ability of the related Mortgaged Property to
generate income sufficient to service the related Mortgage Loan, (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or such proforma title policy or "marked-up" commitment),
none of which materially interferes with the security intended to be provided
by such Mortgage, the
-1-
<PAGE>
current use of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service the
related Mortgage Loan, (d) other matters to which like properties are commonly
subject, none of which materially interferes with the security intended to be
provided by such Mortgage, the use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income
sufficient to service the related Mortgage Loan, (e) the rights of tenants to
remain (whether under ground leases or space leases) at the Mortgaged Property
following a foreclosure or similar proceeding (provided that such tenants are
performing under such leases) and (f) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group (the foregoing
items (a) through (f) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid
and binding assignment thereof from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. The Assignment of Leases,
if any, related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and, subject to the exceptions set
forth in Paragraph 13 below, enforceable first priority lien on and security
interest in the property and rights described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of
such Assignment of Leases executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment thereof
from the relevant assignor to the Trustee. To the Seller's knowledge, no
person owns any interest in any payments due under the related leases that is
superior to the lien created by such Assignment of Leases, if any.
6. Mortgage Status; Waivers and Modifications. No Mortgage
related to a Mortgage Loan has been satisfied, canceled, rescinded or
subordinated in whole or in material part, and the related Mortgaged Property
has not been released from the lien of such Mortgage, in whole or in material
part, nor has any instrument been executed that would effect any such
satisfaction, cancellation, subordination, rescission or release. None of the
terms of any Mortgage Note, Mortgage or Assignment of Leases related to a
Mortgage Loan have been impaired, waived, altered or modified in any material
respect, except by written instruments, all of which are included in the
related Mortgage File.
7. Condition of Property; Condemnation. Each Mortgaged
Property securing a Mortgage Loan is, to the Seller's knowledge, based on its
review of the most recent inspection report (which, if prepared by a servicer
of such Mortgage Loan, was so prepared in accordance with the related
servicing agreement), free and clear of any damage that would materially and
adversely affect its value as security for such Mortgage Loan (except in such
case where an escrow of funds exists sufficient to effect the necessary
repairs and maintenance). The Seller has not received notice (and is not
otherwise aware) of any proceeding pending for the total or partial
condemnation of or affecting the Mortgaged Property securing any Mortgage
Loan. To the Seller's knowledge, as of the date of the origination of each
Mortgage Loan, all of the material improvements on the related Mortgaged
Property lay wholly within the boundaries and, to the extent in effect at the
time of construction, building restriction lines of such property, except for
encroachments that are insured against by the lender's title insurance policy
referred to herein or that do not materially and adversely
-2-
<PAGE>
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability
of such Mortgaged Property.
8. Title Insurance. Each Mortgaged Property securing a
Mortgage Loan is covered by an American Land Title Association (or an
equivalent form of) lender's title insurance policy (the "Title Policy") in
the original principal amount of such Mortgage Loan after all advances of
principal insuring that the related Mortgage is a valid first priority lien on
such Mortgaged Property, subject only to the exceptions stated therein (or a
pro forma title policy or marked up title insurance commitment on which the
required premium has been paid exists which evidences that such Title Policy
will be issued). Such Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder (and the Seller
has not received notice of any material claims having been made or paid
thereunder). No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. The insurer issuing such
Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located, and such Title Policy contains no
exclusion for, or it affirmatively insures, (a) access to a public road, (b)
that there are no material encroachments of any part of the improvements on
the related Mortgaged Property over easements, which encroachments could
reasonably be expected to materially interfere with the use of the related
Mortgaged Property (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available) and (c) that
the area shown on the survey conducted in connection with the origination of
the related Mortgage Loan is the same as the property legally described in the
related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been made but a portion thereof is being held back pending the
satisfaction of certain conditions relating to leasing, repairs or other
matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for
each Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in Paragraph 13
below) such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property
of the principal benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage in respect
of any Mortgage Loan is a deed of trust, (a) a trustee, duly qualified under
applicable law to serve as such, is properly designated and serving under such
Mortgage, and (b) except in connection with a trustee's sale after default by
the related Borrower, no fees or expenses are payable to such trustee by the
Seller, the Purchaser or any transferee thereof.
-3-
<PAGE>
12. Environmental Conditions. An environmental site
assessment was performed with respect to each Mortgaged Property in connection
with the origination of the related Mortgage Loan, a report of each such
assessment (an "Environmental Report") has been delivered to the Purchaser,
and either (x) no such Environmental Report reveals any known circumstances or
conditions with respect to the related Mortgaged Property that rendered such
Mortgaged Property, at the date of such Environmental Report, in material
violation of any applicable environmental laws or (y) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then either (i) the
expenditure of funds necessary to effect such remediation is not material in
relation to the outstanding principal balance of the related Mortgage Loan, or
(ii) a sufficient escrow of funds exists for purposes of effecting such
remediation, or (iii) the related Borrower or other responsible party is
currently taking such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental regulatory
authority, or (iv) the related Mortgaged Property is insured under a policy of
insurance, subject to certain per occurrence and aggregate limits and a
deductible, against certain losses arising from such circumstances and
conditions. To the Seller's knowledge, there are no circumstances or
conditions with respect to such Mortgaged Property not revealed in such
Environmental Report that render such Mortgaged Property in material violation
of any applicable environmental laws. The Mortgage encumbering each Mortgaged
Property requires the related Borrower to comply with all applicable federal,
state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and
other agreement executed by or on behalf of the related Borrower with respect
to each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law), and there
is no valid defense, counterclaim or right of offset or rescission available
to the related Borrower with respect to such Mortgage Note, Mortgage or other
agreements.
14. Insurance. Except in certain cases, where tenants
(having a net worth of at least $50,000,000 or an investment grade credit
rating) with the obligation to maintain the insurance described in this
paragraph are allowed to self-insure the related Mortgaged Properties, all
improvements upon each Mortgaged Property securing a Mortgage Loan are insured
against loss by hazards of extended coverage in an amount at least equal to
the lesser of the outstanding principal balance of such Mortgage Loan and 100%
of the full replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each
Mortgaged Property securing a Mortgage Loan is the subject of a business
interruption insurance policy providing coverage for at least six (6) months
(or a specified dollar amount which, in the reasonable judgement of the
Seller, will cover no less than six months of rental income). If any portion
of the improvements on a Mortgaged Property securing any
-4-
<PAGE>
Mortgage Loan was, at the time of the origination of such Mortgage Loan, in an
area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards, and flood insurance was available, a
flood insurance policy meeting any requirements of the then current guidelines
of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (1) the outstanding principal balance of such Mortgage Loan, (2)
the full insurable value of such Mortgaged Property, and (3) the maximum
amount of insurance available under the National Flood Insurance Act of 1968,
as amended. All such hazard and flood insurance policies contain a standard
mortgagee clause for the benefit of the holder of the related Mortgage, its
successors and assigns, as mortgagee, and are not terminable (nor may the
amount of coverage provided thereunder be reduced) without ten (10) days'
prior written notice to the mortgagee and all premiums payable thereon as of
the Closing Date, whether annual or otherwise, have been paid. Each Mortgaged
Property securing a Mortgage Loan is also covered by comprehensive general
liability insurance in an amount at least equal to $1 million per occurrence.
With respect to each Mortgage Loan, the related Mortgage requires that the
related Borrower maintain insurance as described above or permits the
Mortgagee to require insurance as described above. No notice of termination,
cancellation or reduction has been received by the Seller with respect to any
such hazard, flood or liability insurance policy. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage for each Mortgage Loan
provides that proceeds paid under any such casualty insurance policy will (or,
at the lender's option, will) be applied either to the repair or restoration
of the related Mortgaged Property or to the payment of amounts due under such
Mortgage Loan; provided that the related Mortgage may entitle the related
Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property and payment of amounts due under
the Mortgage Loan; and provided further that if the related Borrower holds a
leasehold interest in the related Mortgaged Property, the application of such
proceeds will be subject to the terms of the related Ground Lease (as defined
in Paragraph 18 below).
15. Taxes and Assessments. To the Seller's knowledge, there
are no delinquent taxes or assessments or other outstanding charges affecting
any Mortgaged Property securing a Mortgage Loan which are a lien of priority
equal to or higher than the lien of the related Mortgage that are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments shall not be considered unpaid until the date on which interest
and/or penalties would be payable thereon.
16. Borrower Bankruptcy. No Borrower under a Mortgage Loan
is, to the Seller's knowledge, a debtor in any state or federal bankruptcy or
insolvency proceeding.
-5-
<PAGE>
17. Local Law Compliance. To the Seller's knowledge, based
on due diligence customarily undertaken by prudent commercial mortgage
lenders, the improvements located on or forming part of each Mortgaged
Property securing a Mortgage Loan are in material compliance with applicable
zoning laws and ordinances, or constitute a legal non-conforming use or
structure or, if any such improvement does not so comply or does not
constitute a legal non-conforming use or structure, such non-compliance and
failure does not materially and adversely affect the value of the related
Mortgaged Property.
18. Leasehold Estate Only. If such Mortgage Loan is secured
by the interest of a Borrower as a lessee under a ground lease of all or a
material portion of a Mortgaged Property (together with any and all written
amendments and modifications thereof and any and all estoppels from the ground
lessor, a "Ground Lease"), but not by the related fee interest in such
Mortgaged Property or such material portion thereof (the "Fee Interest"),
then:
(a) Such Ground Lease or a memorandum thereof has been or
will be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation, with
the exception of written instruments which are a part of the related Mortgage
File;
(b) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related Mortgage,
other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower's interest in such Ground Lease is
assignable to the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it either has been obtained or cannot be unreasonably withheld) and,
(except as described on Schedule C-1) in the event that it is so assigned, is
further assignable to the Purchaser and its successors and assigns upon notice
to, but without the need to obtain the consent of, such lessor;
(d) At the date of origination of the Mortgage Loan, such
Ground Lease was in full force and effect, and the Seller has not received as
of the Closing Date actual notice that any material default has occurred under
such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee (provided that the
mortgagee has provided the lessor with notice of its lien in accordance with
the provisions of such Ground Lease), and such Ground Lease further provides
that no notice of termination given under such Ground Lease is effective
against the mortgagee unless a copy has been delivered to the mortgagee in the
manner described in such Ground Lease;
-6-
<PAGE>
(f) Either (i) the related ground lessor has subordinated
its interest in the related Mortgaged Property to the Mortgagee or (ii) the
mortgagee is permitted a reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of the lessee under such
Ground Lease) to cure any default under such Ground Lease, which is curable
after the receipt of notice of any such default, before the lessor thereunder
may terminate such Ground Lease;
(g) Such Ground Lease either (i) has an original term which
extends not less than ten (10) years beyond the Stated Maturity Date of the
related Mortgage Loan or (ii) has an original term which does not end prior to
the third anniversary of the Stated Maturity Date of the related Mortgage Loan
and has extension options that, if exercised, would cause the term of such
Ground Lease to extend not less than ten (10) years beyond the Stated Maturity
Date of the related Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a
new lease with a mortgagee upon termination of such Ground Lease for any
reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds (other than in
respect of a total or substantially total loss or taking) will be applied
either (i) to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee appointed by it having the
right to hold and disburse such proceeds as the repair or restoration
progresses (except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to the payment
of the outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon; and
(j) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured default, to
disturb the possession, interest or quiet enjoyment of any lessee in the
relevant portion of the Mortgaged Property subject to such Ground Lease for
any reason, or in any manner, which would materially adversely affect the
security provided by the related Mortgage.
19. Leasehold Estate and Fee Interest. If any Mortgage Loan
is secured in whole or in part by the interest of the related Borrower under a
Ground Lease and by the related Fee Interest:
(a) Such Fee Interest is subject, and subordinated of
record, to the related Mortgage; and the related Mortgage does not by its
terms provide that it will be subordinated to the lien of any other mortgage
or other lien upon such Fee Interest; and
(b) Upon occurrence of a default under the terms of the
related Mortgage by the Borrower, the mortgagee has the right to foreclose
upon or otherwise exercise its rights with respect to such Fee Interest within
a period of time that would not have been viewed, as of the date of
origination, as commercially unreasonable by a prudent commercial mortgage
lender.
-7-
<PAGE>
20. Escrow Deposits. With respect to escrow deposits and
payments relating to any Mortgage Loan, all such payments have been delivered
or will be delivered in accordance with the terms of the Pooling and Servicing
Agreement to the Master Servicer.
21. Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
22. Advancement of Funds. No holder of a Mortgage Loan has,
to the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the related
Mortgaged Property (other than amounts paid by the tenant as specifically
provided under related lease), directly or indirectly, for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
23. Equity Interest. No Mortgage Loan is automatically
convertible into an equity ownership interest in the related Mortgaged
Property or the related Borrower.
24. Legal Proceedings. To the Seller's knowledge, there are
no pending or threatened actions, suits or proceedings by or before any court
or governmental authority against or affecting the Borrower under any Mortgage
Loan or the related Mortgaged Property that, if determined adversely to such
Borrower or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property or the ability of the Borrower to pay
principal, interest or any other amounts due under such Mortgage Loan.
25. Other Mortgage Liens. Except as otherwise described
under "Description of the Mortgage Pool--Additional Mortgage Loan
Information--Additional and Other Financing" in the Prospectus Supplement,
none of the Mortgage Loans permits the related Mortgaged Property to be
encumbered by any mortgage lien junior to or of equal priority with the lien
of the related Mortgage without the prior written consent of the holder
thereof. To the Seller's knowledge, except as otherwise specified under
"Description of the Mortgage Pool--Additional Mortgage Loan
Information--Additional and Other Financing" in the Prospectus Supplement, and
except for cases involving other Mortgage Loans, the Mortgaged Properties are
not encumbered by any mortgage liens junior to or of equal priority with the
liens of the related Mortgages.
26. No Mechanics' Liens. To the Seller's knowledge, (i) each
Mortgaged Property securing a Mortgage Loan is free and clear of any and all
mechanics' and materialmen's liens that are not bonded or escrowed for or
affirmatively covered by title insurance, and (ii) no rights are outstanding
that under law could give rise to any such lien that would be prior or equal
to the lien of the related Mortgage unless insured against under the related
Title Policy. The Seller has not received notice with respect to any Mortgage
Loan that any mechanics' and materialmen's liens have encumbered the related
Mortgaged Property since origination that have not been released, bonded or
escrowed for or affirmatively covered by title insurance.
-8-
<PAGE>
27. Compliance with Usury Laws. Each Mortgage Loan complied
with all applicable usury laws in effect at its date of origination.
28. Licenses and Permits. To the Seller's knowledge, based
on due diligence customarily performed by commercially reasonable lenders in
the origination of comparable mortgage loans, as of the date of origination of
each Mortgage Loan, (i) the related Borrower was in possession of all material
licenses, permits and authorizations required by applicable law for the
ownership of the related Mortgaged Property and (ii) all such licenses,
permits and authorizations were valid and in full force and effect.
29. Servicing Practices. The servicing and collection
practices used with respect to the Mortgage Loans have in all material
respects been legal and met customary standards utilized by prudent
institutional commercial and multifamily mortgage loan servicers with respect
to "whole loans".
30. Cross-collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool.
31. Releases of Mortgaged Property. No Mortgage Note or
Mortgage requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except upon
(i) payment in full of all amounts due under the related Mortgage Loan or (ii)
delivery of U.S. Treasury securities in connection with a defeasance of the
related Mortgage Loan; provided that the Mortgage Loans that are
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or, in the case of a
Cross-Collateralized Group, the release of one or more related Mortgaged
Properties upon (i) the satisfaction of certain legal and underwriting
requirements and (ii) the payment of a release price and prepayment
consideration in connection therewith; and provided, further, that certain
Cross-Collateralized Groups of Mortgage Loans may permit the related Borrower
to obtain the release of one or more of the related Mortgaged Properties by
substituting comparable real estate property, subject to, among other
conditions precedent, receipt of confirmation from each Rating Agency that
such release and substitution will not result in a qualification, downgrade or
withdrawal of any of its then-current ratings of the Certificates. Each
Mortgage loan that contains a provision for any defeasance of mortgage
collateral permits defeasance (i) no earlier than two years following the
Closing Date, (ii) only with substitute collateral constituting "government
securities" within the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) and
(iii) to the Seller's knowledge, only for the purpose of facilitating the
disposition of mortgaged real property and not as part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
32. No Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the lender or provides for
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property, or provide for the negative
amortization of interest, except that, in the case of an ARD Loan, such
Mortgage Loan provides that during the period commencing on or about the
Anticipated Repayment Date and continuing until such Mortgage Loan is paid in
full, (i) additional interest shall accrue and be compounded monthly and
-9-
<PAGE>
shall be payable only after the outstanding principal of such Mortgage Loan is
paid in full, and (ii) a portion of the cash flow generated by such Mortgaged
Property will be applied each month to pay down the principal balance thereof
in addition to the principal portion of the related Monthly Payment.
33. Fixed Rate Loans. Each Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except in the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
34. Inspection. In connection with the origination of each
Mortgage Loan (other than the Third Party Mortgage Loans), the Seller
inspected, or caused the inspection of, the related Mortgaged Property.
35. No Material Default. To the Seller's knowledge, there
exists no material default, breach, violation or event of acceleration (and no
event which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the Mortgage Note or Mortgage for any
Mortgage Loan, in any such case to the extent the same materially and
adversely affects the value of the Mortgage Loan and the related Mortgaged
Property; provided, however, that this representation and warranty does not
cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of the subject matter otherwise covered
by any other representation and warranty made by the Seller in any of
Paragraphs 3, 7, 12, 14, 15, 16, 17, 20, 24, 25, 26 and 28 of this Exhibit C.
36. Due-on-Sale. Subject to exceptions set forth in the
related Mortgage, such Mortgage contains a "due-on-sale" clause that provides
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the prior written consent of the holder, the
Mortgaged Property subject to such Mortgage, or any controlling interest in
the related Borrower, is directly or indirectly transferred or sold.
37. Single Purpose Entity. The Borrower on each Mortgage
Loan that, individually or together with the Mortgage Loans of affiliated
Borrowers, represented 5% or more of the Initial Pool Balance, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was
formed or organized solely for the purpose of owning and operating one or more
of the Mortgaged Properties securing the Mortgage Loans and prohibit it from
engaging in any business unrelated to such Mortgaged Property or Properties,
and whose organizational documents further provide, or which entity
represented in the related Mortgage Loan documents, substantially to the
effect that it does not have any material assets other than those related to
its interest in and operation of such Mortgaged Property or Properties, or any
indebtedness other than as permitted by the related Mortgage(s) or the other
related Mortgage Loan documents, that it has its own books and records and
accounts separate and apart from any other person, and that it holds itself
out as a legal entity, separate and apart from any other person.
-10-
<PAGE>
38. Delivery of Mortgage File. The Seller has delivered to
the Trustee or a Custodian appointed thereby, with respect to each Mortgage
Loan, in accordance with Section 2 of this Agreement, a complete Mortgage
File.
39. Whole Loan. Each Mortgage loan is a whole loan and not a
participation interest in a mortgage loan.
40. No Waivers. The Seller has not waived any material
default, breach, violation or event of acceleration existing under the related
Mortgage or Mortgage Note, except by a written instrument contained in the
Mortgage File, which instrument has been taken into account by the Seller when
giving the representations and warranties set forth herein.
41. Tax Parcels. Except as described on Schedule C-1, each
Mortgaged Property constitutes one or more complete separate tax lots or is
subject to an endorsement under the related Title Policy or in certain
instances an application has been made to the applicable governing authority
for creation of separate tax lots which shall be effective for the next tax
year.
42. ARD Loans. As of the Closing Date, each ARD Loan
requires scheduled monthly payments of principal. If any ARD Loan is not paid
in full by its Anticipated Repayment Date, and assuming it is not otherwise in
default, the rate at which such ARD Loan accrues interest will increase to the
sum of the original Mortgage Rate and a specified margin (such margin, the
"Additional Interest Rate").
43. Security Interests. In connection with the operation of
a Mortgaged Property as either (i) a hospitality property or (ii) an
independent/assisted living or healthcare facility, the security agreements,
financing statements or other instruments, if any, related to each Mortgage
Loan establish and create a valid security interest in all items of personal
property owned by the related Borrower material to the conduct in the ordinary
course of the Borrower's business conducted on the related Mortgaged Property,
subject only to purchase money security interests and security interests to
secure revolving lines of credit and similar financing. The related assignment
of such security interest executed and delivered in favor of the Trustee
constitutes a legal, valid and binding assignment thereof from the relevant
assignor to the Trustee.
-11-
<PAGE>
Exhibit C-1
Tax Parcel Exceptions
-12-
<PAGE>
Exhibit D-1
Certificate of an Officer of the Seller
CERTIFICATE OF ASSISTANT SECRETARY OF COLUMN FINANCIAL, INC.
I, Marjorie S. White, hereby certify that I am a duly
appointed Assistant Secretary of Column Financial, Inc., a Delaware
Corporation ("Column"), and further certify as follows:
1. Attached hereto as Attachment A are true, correct and
complete copies of the Articles of Incorporation and By-Laws of Column, which
are in full force and effect on the date hereof.
2. Attached hereto as Attachment B are the resolutions of
the board of directors of Column authorizing and approving Column's execution,
delivery and performance of the Mortgage Loan Purchase and Sale Agreement,
dated as of June 11, 1999 (the "Mortgage Loan Purchase and Sale Agreement"),
between DLJ Commercial Mortgage Corp. as purchaser and Column as seller.
3. Attached hereto as Attachment C is a certificate of good
standing of Column issued by the Secretary of State of the State of Delaware
issued within 10 days of the date hereof and no event (including, without
limitation, any act or omission on the part of Column) has occurred since the
date thereof which has affected the good standing of Column under the laws of
the State of Delaware.
4. Each person who, as an officer or representative of
Column, signed the Mortgage Loan Purchase and Sale Agreement or any other
document or certificate delivered by or on behalf of Column prior hereto or on
the date hereof in connection with the transactions contemplated in the
Mortgage Loan Purchase and Sale Agreement, was, at the respective times of
such signing and delivery, and is as of the date hereof, duly elected or
appointed, qualified and acting as such officer or representative, and the
signature of such persons appearing on such documents are their genuine
signatures.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Mortgage Loan Purchase and Sale
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
certificate as of June __, 1999.
By:__________________________________
Name: Marjorie S. White
Title: Secretary
<PAGE>
Exhibit D-2
Certificate of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
Certificate of Column Financial, Inc.
-------------------------------------
In connection with the execution and delivery by Column
Financial, Inc. ("Column") of, and the consummation of the various
transactions contemplated by, that certain Mortgage Loan Purchase and Sale
Agreement (the "Agreement"), dated as of June 11, 1999, between DLJ Commercial
Mortgage Corp., as purchaser, and Column, as seller, the undersigned hereby
certifies that (i) the representations and warranties of Column in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) Column
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreement to be performed or
satisfied at or prior to the date hereof. Capitalized terms used but not
defined herein shall have the respective meanings assigned to them in the
Agreement.
Certified this __ day of June, 1999.
COLUMN FINANCIAL, INC.
By: __________________________
Name:
Title:
-2-
<PAGE>
Exhibit D-3
Opinion of Counsel to the Seller
<PAGE>
Schedule 1
Mortgage Loan Schedule
<PAGE>
Schedule 2
Third Party Originator Agreements
THIRD PARTY ORIGINATOR THIRD PARTY ORIGINATOR AGREEMENT
1. Union Capital Investments, LLC Seller's Warranty Certificate dated as of
("Union Capital") June 11, 1999 from Union Capital in
favor of Column Financial, Inc.
-2-
<PAGE>
EXHIBIT M-2
FORM OF GECA MORTGAGE LOAN PURCHASE
AND SALE AGREEMENT
M-2-1
<PAGE>
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of
June 11, 1999 (this "Agreement"), is between DLJ Commercial Mortgage Corp., a
Delaware corporation (the "Purchaser"), and GE Capital Access, Inc., a
Delaware corporation (the "Seller").
The Seller intends to sell, assign, transfer, set over and
otherwise convey to the Purchaser, subject to the terms and conditions set
forth below, certain mortgage loans (collectively, the "Mortgage Loans")
identified and more particularly described on Schedule 1 attached hereto (the
"Mortgage Loan Schedule"), together with the OfficeMax REMIC Regular Interest
and the OfficeMax REMIC Residual Interest (each as defined in the Pooling and
Servicing Agreement referred to below). Unless otherwise indicated on the
Mortgage Loan Schedule, the Mortgage Loans were originated by the Seller.
Reference is made to the Pooling and Servicing Agreement,
dated as of June 1, 1999 (the "Pooling and Servicing Agreement"), among the
Purchaser, as depositor, GE Capital Loan Services, Inc., as master servicer
(in such capacity, the "Master Servicer"), Banc One Mortgage Capital Markets,
LLC, as special servicer (in such capacity, the "Special Servicer"), and
Norwest Bank Minnesota, National Association as trustee (in such capacity, the
"Trustee") and as REMIC administrator (in such capacity, the "REMIC
Administrator"), relating to the issuance of the Purchaser's Commercial
Mortgage Pass-Through Certificates, Series 1999-CG2 (the "Certificates").
Capitalized terms used without definition herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement as in full
force and effect on the Closing Date (as defined below). The Seller
acknowledges that the Purchaser intends to transfer the Mortgage Loans, the
OfficeMax REMIC Regular Interest and the OfficeMax REMIC Residual Interest,
together with certain other commercial and multifamily mortgage loans (the
"Other Loans"), to the Trustee in exchange for the Certificates. The Purchaser
has acquired or will acquire the Other Loans from Column Financial, Inc.
("Column") pursuant to a Mortgage Loan Purchase and Sale Agreement dated as of
the date hereof (the "Column Mortgage Loan Purchase Agreement"), between the
Purchaser and Column, and from Goldman Sachs Mortgage Company ("GSMC"),
pursuant to a Mortgage Loan Purchase Agreement dated as of the date hereof
(the "GSMC Mortgage Loan Purchase Agreement"), between the Purchaser and GSMC
(Column and GSMC sometimes referred to herein as the "Other Loan Sellers"). In
addition, the Purchaser has entered into an Underwriting Agreement, dated the
date hereof (the "Underwriting Agreement"), with Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC"), and Goldman, Sachs & Co. ("Goldman Sachs";
and, together with DLJSC, in such capacity, the "Underwriters"), whereby the
Purchaser will sell to the Underwriters all of the Certificates that are to be
registered under the Securities Act of 1933, as amended (the "Securities Act";
and such Certificates, the "Registered Certificates"). The Purchaser has also
entered into a Certificate Purchase Agreement, dated the date hereof (the
"Certificate Purchase Agreement"), with DLJSC and Goldman Sachs (together, in
such capacity, the "Initial Non-Registered Certificate Purchasers"), whereby
the Purchaser will sell to the Initial Non-Registered Certificate Purchasers
all of the remaining Certificates (the "Non-Registered Certificates").
M-2-2
<PAGE>
1. Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey, and the Purchaser agrees to purchase,
the Mortgage Loans. The purchase and sale of the Mortgage Loans, the OfficeMax
REMIC Regular Interest and the OfficeMax REMIC Residual Interest shall take
place on June 22, 1999 or such other date as shall be mutually acceptable to
the parties hereto (the "Closing Date"). The Mortgage Loans will have an
aggregate Cut-off Date Balance of approximately $705,829,185.18 (the "Initial
Pool Balance"). The purchase price for the Mortgage Loans, the OfficeMax REMIC
Regular Interest and the OfficeMax REMIC Residual Interest shall be determined
in accordance with the letter agreement between the Purchaser and the Seller
including accrued interest thereon from June 1, 1999 (the "Cutoff Date") to
but not including the Closing Date. Such purchase price shall be paid to the
Seller on the Closing Date by wire transfer in immediately available funds or
by such other method as shall be mutually acceptable to the parties hereto.
2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to
receipt of the purchase price referred to in Section 1 above, the Seller does
hereby sell, assign, transfer, set over and otherwise convey to the Purchaser,
without recourse, all the Seller's right, title and interest in and to the
Mortgage Loans, the OfficeMax REMIC Regular Interest and the OfficeMax REMIC
Residual Interest, including all interest and principal received on or with
respect to the Mortgage Loans, the OfficeMax REMIC Regular Interest and the
OfficeMax REMIC Residual Interest after the Cut-off Date (other than scheduled
payments of interest and principal due on or before the Cut-off Date),
together with all of the Seller's right, title and interest in and to the
proceeds of any related title, hazard or other insurance policies and any
escrow, reserve or other comparable accounts related to the Mortgage Loans
(including letters of credit representing reserves or escrows). On the Closing
Date, the Seller shall transfer or cause to be transferred to the Master
Servicer the funds in such escrow, reserve or other comparable accounts
related to the Mortgage Loans, together with an amount equal to all
collections on the Mortgage Loans, the OfficeMax REMIC Regular Interest and
the OfficeMax REMIC Residual Interest received prior to the Closing Date that
represent scheduled payments of principal and interest due and principal
prepayments received after the Cut-off Date.
(b) In connection with such transfer and assignment, the
Purchaser hereby directs the Seller to, and the Seller hereby agrees to,
deliver to, and deposit with, the Trustee (or a custodian appointed thereby (a
"Custodian")) the documents and/or instruments described on Exhibit A hereto
with respect to each Mortgage Loan (collectively as to each Mortgage Loan, the
"Mortgage File"). The Seller shall also cause (at its own expense) any letter
of credit or similar instrument delivered by a Borrower and included in the
Mortgage File to be transferred to and for the benefit of the Trustee,
including changing the beneficiary thereof, as necessary. In addition, the
Purchaser hereby directs the Seller to, and the Seller hereby agrees to,
deliver to, and deposit with, the Master Servicer all of the documents and
other items referred to in Section 2.01(f) of the Pooling and Servicing
Agreement with respect to the Mortgage Loans (collectively as to each Mortgage
Loan, the "Servicing File"), together with any and all unapplied escrows and
reserves in respect of the Mortgage Loans.
M-2-3
<PAGE>
If the Seller cannot deliver on the Closing Date any
original or certified recorded document or original title insurance policy
described on Exhibit A, solely because the Seller is delayed in making such
delivery by reason of the fact that such original or certified recorded
document has not been returned by the appropriate recording office or such
original title insurance policy has not yet been issued, then the Seller shall
notify the Trustee and, if applicable, the Custodian in writing of such delay
and shall deliver such documents to the Trustee or Custodian, as the case may
be, promptly upon the Seller's receipt thereof. In any event, if the Seller
fails to deliver any original or certified recorded document described on
Exhibit A or any original title policy described on Exhibit A to the Trustee
or Custodian within 180 days following the Closing Date, such failure shall be
deemed to constitute a breach of the representation set forth in Item 38 of
Exhibit C hereto with respect to the related Mortgage Loan.
3. Representations and Warranties.
(a) The Seller hereby makes, as of the Closing Date, to and
for the benefit of the Purchaser and its successors and assigns (including,
without limitation, the Trustee for the benefit of the Certificateholders),
each of the representations and warranties set forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as
of such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser and its successors and
assigns (including, without limitation, the Trustee for the benefit of the
Certificateholders), each of the representations and warranties set forth in
Exhibit C.
(c) The Seller hereby represents and warrants, as of the
Closing Date, to and for the benefit of the Purchaser only, that the Seller
has not dealt with any broker, investment banker, agent or other person (other
than the Purchaser and the Underwriters) who may be entitled to any commission
or compensation payable by the Purchaser or the Underwriters in connection
with the sale to the Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make
to and for the benefit of the Purchaser and its successors and assigns
(including, without limitation, the Trustee for the benefit of the
Certificateholders), as of the date of substitution, with respect to any
replacement mortgage loan (a "Replacement Mortgage Loan") that is substituted
for a Defective Mortgage Loan (as defined in Section 4(a) hereof), each of the
representations and warranties set forth in Exhibit B and Exhibit C. From and
after the date of substitution, each Replacement Mortgage Loan, if any, shall
be deemed to constitute a "Mortgage Loan" hereunder for all purposes.
4. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within ninety (90) days of the earlier of discovery or
receipt of notice by the Seller that there has been a breach of any of the
representations and warranties set forth in Exhibit B or Exhibit C and made by
the Seller pursuant to Section 3(a), Section 3(b) or Section 3(d), as the case
may be, which breach materially and adversely affects the value of any
Mortgage Loan or the interests of the legal and/or beneficial owner(s) thereof
(any such breach, a "Material Breach"), the Seller shall (i) cure such
Material Breach in all material respects or (ii) repurchase each affected
M-2-4
<PAGE>
Mortgage Loan (each, a "Defective Mortgage Loan") at the related Purchase
Price (as defined in the Pooling and Servicing Agreement, but without giving
effect to any amendment thereto unless approved in writing by Seller) in
accordance with the directions of the owner(s) of such Defective Mortgage
Loan(s); provided that if (i) such Material Breach does not relate to whether
the Defective Mortgage Loan was, as of the Closing Date, a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (a "Qualified
Mortgage"), (ii) such Material Breach is capable of being cured but not within
such 90-day period, (iii) the Seller has commenced and is diligently
proceeding with the cure of such Material Breach within such 90-day period,
and (iv) the Seller shall have delivered to the owner(s) of the Defective
Mortgage Loan a certification executed on behalf of the Seller by an officer
thereof setting forth the reason that such Material Breach is not capable of
being cured within the initial 90-day period and what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Material Breach will be cured within an additional
period not to exceed 90 more days, then the Seller shall have up to an
additional 90 days to complete such cure, in which event the Seller shall
continue to proceed diligently to effect such cure as early as practicable
within such 90-day period, or failing such cure, to repurchase the Defective
Mortgage Loan; and provided, further, that if the Seller's obligation to
repurchase any Defective Mortgage Loan as a result of a Material Breach arises
within the three-month period commencing on the Closing Date (with respect to
the OfficeMax Mortgage Loan, the startup date of the OfficeMax Loan REMIC) (or
within the two-year period commencing on the Closing Date (with respect to the
OfficeMax Mortgage Loan, the startup date of the OfficeMax Loan REMIC) if the
Defective Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), the Seller may, at its option, in lieu of repurchasing such
Defective Mortgage Loan (but, in any event, no later than such repurchase
would have to have been completed), (x) replace such Defective Mortgage Loan
with one or more substitute mortgage loans that individually and collectively
satisfy the requirements of the definition of "Qualifying Substitute Mortgage
Loan" set forth in the Pooling and Servicing Agreement, and (y) pay any
corresponding Substitution Shortfall Amount, such substitution and payment to
be effected in accordance with the terms of the Pooling and Servicing
Agreement (or, if the Defective Mortgage Loan is no longer subject thereto, in
accordance with the reasonable instructions of the owner(s) thereof). Any such
repurchase or replacement of a Defective Mortgage Loan shall be on a whole
loan, servicing released basis. The Seller shall have no obligation to monitor
the Mortgage Loans regarding the existence of a Material Breach, but if Seller
discovers a Material Breach with respect to a Mortgage Loan, it will notify
Purchaser.
Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan as contemplated by this Section 4(a), the Seller (i)
shall deliver the related Mortgage File for each such substitute mortgage loan
to the owner(s) of the Defective Mortgage Loan, (ii) certify that such
substitute mortgage loan satisfies or such substitute mortgage loans satisfy,
as the case may be, all of the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement and
(iii) send such certification to such owner(s). No mortgage loan may be
substituted for a Defective Mortgage Loan as contemplated by this Section 4(a)
if the Defective Mortgage Loan to be replaced was itself a Replacement
Mortgage Loan. Monthly Payments due with respect to each Replacement Mortgage
Loan (if any) after the related date of substitution, and Monthly Payments due
with respect to each Defective Mortgage Loan (if any) after the Cut-off Date
and on or prior to the related date of repurchase or substitution, shall
belong to the
M-2-5
<PAGE>
Purchaser and its successors and assigns. Monthly Payments due with respect to
each Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or substitution, shall
belong to the Seller.
If any Defective Mortgage Loan is to be repurchased or
replaced as contemplated by this Section 4(a), the Seller shall amend the
Mortgage Loan Schedule to reflect the removal of the Defective Mortgage Loan
and, if applicable, the substitution of the related Replacement Mortgage
Loan(s) and shall forward such amended schedule to the owner(s) of such
Defective Mortgage Loan.
Except as contemplated by Section 8, it is understood and
agreed that the obligations of the Seller set forth in this Section 4(a) to
cure a Material Breach or repurchase or replace the related Defective Mortgage
Loan(s) constitute the sole remedies available to the Purchaser or any
assignee respecting a breach of the representations and warranties set forth
on Exhibits B and C and made by the Seller pursuant to Sections 3(a), 3(b) and
3(d), respectively.
(b) It shall be a condition to any repurchase of or
substitution for a Defective Mortgage Loan by the Seller pursuant to Section
4(a) that the Trustee as assignee of the Purchaser shall have executed and
delivered such instruments of transfer or assignment then presented to it by
the Seller, in each case without recourse, as shall be necessary to vest in
the Seller the legal and beneficial ownership of such Defective Mortgage Loan
(including any property acquired in respect thereof or proceeds of any
insurance policy with respect thereto), to the extent that such ownership
interest was transferred to the Trustee under the Pooling and Servicing
Agreement.
(c) The Seller hereby acknowledges and consents to the
assignment by the Purchaser to the Trustee, as trustee under the Pooling and
Servicing Agreement, for the benefit of the Certificateholders, of (i) the
representations and warranties set forth in Exhibits B and C and made by the
Seller pursuant to Sections 3(a), 3(b) and 3(d), respectively, (ii) the
obligation of the Seller to repurchase or replace a Defective Mortgage Loan in
connection with a Material Breach pursuant to Section 4(a) and (iii) the
obligation of the Seller to deliver certain documentation, funds and other
assets relating to the Mortgage Loans pursuant to Section 2. The Trustee or
its designee may enforce such obligations as provided in Section 11(a) hereof
or as assignee.
5. Closing. The closing of the sale of the Mortgage Loans,
the OfficeMax REMIC Regular Interest and the OfficeMax REMIC Residual Interest
(the "Closing") shall be held at the offices of Sidley & Austin, 875 Third
Avenue, New York, New York 10022 at 10:00 a.m., New York City time (or at such
other place and time as may be determined by the Purchaser), on the Closing
Date.
The Closing shall be subject to each of the following
conditions:
(i) All of the representations and warranties
of the Seller made pursuant to Section 3
of this Agreement shall be true and
correct as of the Closing Date;
M-2-6
<PAGE>
(ii) All documents specified in Section 6 of
this Agreement (the "Closing Documents"),
in such forms as are agreed upon and
acceptable to the Purchaser, shall be duly
executed and delivered by all signatories
as required pursuant to the respective
terms thereof;
(iii) The Seller shall have delivered and
released to the Trustee or a Custodian and
to the Master Servicer, respectively, all
documents, funds and other assets required
to be delivered thereto pursuant to
Section 2 of this Agreement;
(iv) All other terms and conditions of this
Agreement required to be complied with on
or before the Closing Date shall have been
complied with, and the Seller shall have
the ability to comply with all terms and
conditions and perform all duties and
obligations required to be complied with
or performed after the Closing Date; and
(v) The Seller shall have paid all fees and
expenses payable by it to the Purchaser or
otherwise pursuant to this Agreement.
Both parties agree to use their best efforts to perform
their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
6. Closing Documents. The Closing Documents shall consist of
the following:
(i) This Agreement duly executed by the
Purchaser and the Seller;
(ii) An Officer's Certificate substantially in
the form of Exhibit D-1 hereto, executed by
an executive officer of the Seller, in his
or her individual capacity, and dated the
Closing Date, and upon which the Purchaser,
DLJSC, Goldman Sachs, GSMC, Column, their
respective affiliates, the Trustee and the
Certificateholders (collectively, for
purposes of this Section 6, the "Interested
Parties") may rely, attaching thereto as
exhibits (A) the resolutions of the board of
directors of the Seller authorizing the
Seller's entering into the transactions
contemplated by this Agreement and (B) the
certificate of incorporation and by-laws of
the Seller;
(iii) A certificate of good standing of the
Seller issued by the Secretary of State of
the State of Delaware not earlier than ten
(10) days prior to the Closing Date, and
upon which the Interested Parties may
rely;
(iv) A certificate of the Seller substantially
in the form of Exhibit D-2 hereto;
executed by an authorized signatory of the
Seller and dated the Closing Date, and
upon which the Interested Parties may
rely;
M-2-7
<PAGE>
(v) Written opinions of Kevin Korsh, Esq.,
in-house counsel for the Seller and GECC (as
defined below) and Andrews & Kurth L.L.P.,
counsel for the Seller and GECC,
substantially in the forms of Exhibit D-3A
and Exhibit D-3B hereto with any
modifications required by any rating agency
(each, a "Rating Agency") identified in the
Prospectus Supplement or the Memorandum
(each as defined in Section 8), dated the
Closing Date and addressed to the Purchaser,
the Underwriters, the Trustee and, if
requested thereby, each Rating Agency,
together with such other written opinions as
may be required by any Rating Agency,
including a written opinion of Cadwalader,
Wickersham & Taft, counsel for the Seller
and GECC with respect to the
characterization of the transfer of the
Mortgage Loans by the Seller to the
Purchaser as a "true sale"; and
(vi) A written letter of Cadwalader, Wickersham
& Taft, counsel for the Seller, and
Andrews & Kurth LLP, counsel for the
Seller, each in form and substance
acceptable to the Purchaser and the
Underwriters, dated the Closing Date and
addressed to the Purchaser and the
Underwriters relating to the Prospectus
Supplement and the Memorandum;
(vii) With respect to any Mortgage Loan for which
the Seller has made an election to treat
such Mortgage Loan as a separate Real Estate
Mortgage Investment Conduit ("REMIC") within
the meaning of Sections 860A through 860G
of the Internal Revenue Code of 1986 in
effect on the date hereof (the "REMIC
Provisions") (such Mortgage Loan herein
called a "Loan REMIC") (A) a copy of the
related REMIC declaration, and (B) the
written opinion of Cadwalader, Wickersham &
Taft, counsel to the Seller, addressed to
the Interested Parties and the Rating
Agencies, to the effect that the Loan REMIC
will qualify as a REMIC;
(viii) A letter or letters obtained by the
Purchaser and the Seller, among others, from
Arthur Andersen LLP, certified public
accountants, dated the dates of the
Prospectus Supplement and the Memorandum, to
the effect that they have performed certain
specified procedures as a result of which
they have determined that certain
information of an accounting, financial or
statistical nature set forth in the
Prospectus Supplement and the Memorandum
under the captions "Summary of Prospectus
Supplement--The Mortgage Loans and the
Mortgaged Properties," "Description of the
Mortgage Pool" and "Risk Factors--Risks
Related to the Mortgage Loans", Exhibit A-1
to the Prospectus Supplement and the
Diskette (as defined below) agrees with the
records of the Seller; and
M-2-8
<PAGE>
(ix) Such further certificates, opinions and
documents as the Purchaser may reasonably
request.
7. Costs. All expenses incidental to the performance of this
Agreement shall be paid and allocated in accordance with the Term Sheet for
the Joint Conduit Securitization entered into between Donaldson, Lufkin &
Jenrette Securities Corporation, GE Capital Access, Inc. and Goldman Sachs
Mortgage Company.
8. Indemnification.
(a) The Seller shall indemnify and hold harmless each of the
Purchaser, DLJSC, GSMC, Goldman Sachs, Column, their respective officers and
directors, and each person, if any, who controls the Purchaser, DLJSC, Goldman
Sachs, GSMC or Column within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), against any and all losses, claims, damages,
liabilities, costs and expenses, joint or several, to which they or any of
them may become subject under the Securities Act, the Exchange Act or other
similar federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities, costs and
expenses (or actions in respect thereof) (i) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained
in (A) the Prospectus Supplement (including, without limitation, Exhibit A-1
and Exhibit A-2 thereto and the Diskette) or the preliminary version thereof
dated June 3, 1999 (the "Preliminary Prospectus Supplement") or the Memorandum
(including, without limitation, the Prospectus Supplement as attached as
Exhibit A thereto) or, insofar as they are required to be filed as part of the
Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or
in any revision or amendment of or supplement to any of the foregoing or (B)
any items similar to Computational Materials or ABS Term Sheets forwarded to
prospective investors in the Non-Registered Certificates, or (ii) arise out of
or are based upon the omission or alleged omission (in the case of an omission
or alleged omission in the ABS Term Sheets and the Computational Materials
relating to the Registered Certificates, when read in conjunction with the
Prospectus and, in the case of an omission or alleged omission in items
similar to Computational Materials and ABS Term Sheets furnished to
prospective investors in the Non-Registered Certificates, when read in
conjunction with the Memorandum and, in the case of an omission or alleged
omission in the Memorandum, when read together with other information made
available for review by investors in the Non-Registered Certificates) to state
in the printed materials described in the immediately preceding clause (i)(A)
and (B) (collectively, the "Disclosure Documents") a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; but, in the case
of clauses (i) and (ii), only if and to the extent that such untrue statement
or alleged untrue statement or omission or alleged omission (I) arises out of
or is based upon an untrue statement or omission with respect to the
information regarding the Mortgage Loans, the related Borrowers or the related
Mortgaged Properties contained in the Master Tape (it being acknowledged that
the Master Tape was used to prepare the Prospectus Supplement (including,
without limitation, Exhibit A-1 and Exhibit A-2 thereto and the Diskette), the
Preliminary Prospectus Supplement,
M-2-9
<PAGE>
the Memorandum, the Computational Materials and ABS Term Sheets with respect
to the Registered Certificates and any items similar to Computational
Materials and ABS Term Sheets forwarded to prospective investors in the
Non-Registered Certificates), (II) arises out of an untrue statement or
alleged untrue statement or omission or alleged omission made in any of the
Disclosure Documents in reliance upon and in conformity with any other
information concerning the characteristics of the Mortgage Loans, the related
Borrowers or the related Mortgaged Properties furnished in writing to the
Purchaser, DLJSC or Goldman Sachs by the Seller, (III) is contained in the
information regarding the Mortgage Loans, the related Borrowers, the related
Mortgaged Properties or the Seller set forth in the Prospectus Supplement, the
Preliminary Prospectus Supplement and the Memorandum under the headings
"Summary of Prospectus Supplement -- The Mortgage Loans and the Mortgaged
Properties", "Risk Factors" and "Description of the Mortgage Pool" or on
Exhibit A-1 to the Prospectus Supplement or on the Diskette; provided that the
foregoing were provided to the Seller for its review, or (IV) arises out of or
is based upon a breach of the representations and warranties of the Seller set
forth in or made pursuant to Section 3 (such representations and warranties,
together with the information described in the preceding clauses (I), (II) and
(III), the "Seller Information"); provided that the indemnification provided
by this Section 8 shall not apply to the extent that such untrue statement or
omission was made as a result of an error in (x) the manipulation of, or (y)
any calculations based upon, or (z) any aggregation (other than an aggregation
made in the Master Tape by the Seller) of, the information regarding the
Mortgage Loans, the related Borrowers, the related Mortgaged Properties or the
Seller, including without limitation the aggregation of such information with
comparable information relating to the Other Loans; and, provided, further,
that the provisions of this Section 8 shall not apply for the purposes of
indemnifying or holding harmless any indemnified party for any liability
(through an obligation to indemnify or otherwise) that such party might have
to the Other Loan Sellers or their respective officers, directors and
affiliates. Notwithstanding the forgoing, the indemnity provided for in the
preceding sentence with respect to any loss, claim, damage, liability, cost or
expense referred to therein and arising out of or based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Preliminary Prospectus Supplement, any Computational Materials or ABS Term
Sheets, with respect to the Registered Certificates or any items similar to
Computational Materials or ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates, or any revision or amendment of or
supplement to any such document, shall not inure to the benefit of any of the
indemnified parties or Initial Non-Registered Certificate Purchaser (or any
officer, director or controlling person in respect thereof) if: (i) in the
case of the Preliminary Prospectus Supplement (or any revision or amendment
thereof or supplement thereto), the Underwriters did not deliver to the person
asserting such loss, claim, damage, liability, cost or expense a copy of the
Prospectus Supplement (or the Prospectus Supplement as most recently amended
or supplemented) at or prior to the confirmation of the sale of the subject
Certificates to such person in any case where such delivery is required by the
Securities Act and the untrue statement or alleged untrue statement or
omission or alleged omission made in such Preliminary Prospectus Supplement
was corrected in the Prospectus Supplement (or the Prospectus Supplement as
most recently amended or supplemented) and such correction would have cured
the defect giving rise to any such loss, claim, damage, liability, cost or
expense; and (ii) in the case of any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates or any items similar to
M-2-10
<PAGE>
Computational Materials or ABS Term Sheets forwarded to prospective investors
in the NonRegistered Certificates (or any revision or amendment of or
supplement to any such document), the Seller notified the Underwriters or
Initial Non-Registered Certificate Purchasers, as the case may be, in writing
of the Collateral Error that gave rise to the untrue statement or alleged
untrue statement or omission or alleged omission or provided in written or
electronic format information superseding or correcting such Collateral Error
prior to the time of confirmation of sale of the subject Certificates to such
person, and the Underwriters or Initial Non-Registered Certificate Purchasers,
as the case may be, failed to deliver to such person corrected materials (or,
if the superseding or correcting information was contained in the Prospectus
Supplement or Memorandum, failed to deliver to such person the Prospectus
Supplement or Memorandum, as the case may be) at or prior to confirmation of
such sale to such person. The Seller acknowledges that the Purchaser, DLJSC
and Goldman Sachs will enter into the Underwriting Agreement and the
Certificate Purchase Agreement, that the Purchaser and Column will enter into
the Column Mortgage Loan Purchase Agreement, and that the Purchaser and GSMC
will enter into the GSMC Mortgage Loan Purchase Agreement, in each case in
reliance upon this indemnity agreement of Seller. This indemnity agreement
will be in addition to any liability which the Seller may otherwise have. The
obligation to indemnify does not include or incorporate herein the cure or
repurchase obligations of Seller in Section 4.
For purposes of this Agreement, "Registration Statement"
shall mean the registration statement No. 333-59167 filed by the Purchaser on
Form S-3, including, without limitation, all exhibits thereto and information
incorporated therein by reference; "Prospectus" shall mean the prospectus
dated June 3, 1999, as supplemented by the prospectus supplement dated June
11, 1999 (the "Prospectus Supplement"), relating to the Registered
Certificates, including, without limitation, all annexes and exhibits thereto;
"Memorandum" shall mean the private placement memorandum dated June 11, 1999,
relating to certain classes of the Non-Registered Certificates, including,
without limitation, all annexes and exhibits thereto; "Computational
Materials" shall have the meaning assigned thereto in the no-action letter
dated May 20, 1994 issued by the Division of Corporation Finance of the
Securities and Exchange Commission (the "Commission") to Kidder, Peabody
Acceptance Corporation I, Kidder, Peabody & Co. Incorporated, and Kidder
Structured Asset Corporation and the no-action letter dated May 27, 1994
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Kidder Letters"); "ABS Term Sheets"
shall have the meaning assigned thereto in the no-action letter dated February
17, 1995 issued by the Division of Corporation Finance of the Commission to
the Public Securities Association (the "PSA Letter" and, together with the
Kidder letters, the "No-Action Letters"); "Diskette" shall mean the diskette
attached to each of the Prospectus, the Preliminary Prospectus Supplement and
the Memorandum; and "Master Tape" shall mean the compilation of information
and data regarding the Mortgage Loans covered by the Independent Accountants
Report on Applying Agreed Upon Procedures dated June 3, 1999, as supplemented
to the Closing Date, and rendered by Arthur Anderson LLP; and "Collateral
Error" shall mean any error in the information regarding the Seller, the
Mortgage Loans, the related Mortgaged Properties or the related Borrowers
contained in the Master Tape or any other information supplied by the Seller
directly in writing or email to the Purchaser, DLJSC or Goldman Sachs or any
breach of the representations and warranties made by Seller in or pursuant to
Section 3.
M-2-11
<PAGE>
(b) The Purchaser shall indemnify and hold harmless the
Seller, its directors, officers, employees and agents, and each person, if
any, who controls the Seller within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any and all losses,
claims, damages, liabilities, costs or expenses, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, to the same extent as the indemnity from the Purchaser to each of
DLJSC and Goldman Sachs in Section 8(a) of the Underwriting Agreement and
Section 8(a) of the Certificate Purchase Agreement (in each case, as in effect
on the Closing Date). In addition, the Purchaser shall indemnify and hold
harmless the Seller, its directors, officers, employees and agents, and each
person, if any, who controls the Seller within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any and all
losses, claims, damages, liabilities, costs or expenses, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities, costs
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Prospectus Supplement, the Preliminary Prospectus Supplement and the
Memorandum (including all exhibits and annexes to each such document, but
excluding any information included in any such document solely as a result of
incorporation by reference), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made as a result of an error in (x) the manipulation of,
or (y) any calculations based upon, or (z) any aggregation (other than an
aggregation made in the Master Tape by the Seller) of, the information
regarding the Mortgage Loans and/or the Other Loans, the related Mortgaged
Properties, the related Borrowers or the Seller. This indemnity will be in
addition to any liability which the Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party under this Section 8, except to the
extent that the indemnifying party has been prejudiced in any material
respect, or from any liability which it may have, otherwise than under this
Section 8. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided that if the defendants in any such action include
both the indemnified party and the indemnifying party, and the indemnified
party or parties shall have reasonably concluded that there may be legal
defenses available to it or them and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to
M-2-12
<PAGE>
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel as described in the preceding
sentence, the indemnifying party will not be liable to such indemnified party
for legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel (together with one local
counsel, if applicable)), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause
(i) or (iii). Unless it shall assume the defense of any proceeding, the
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party or parties from and against any loss or
liability by reason of such settlement or judgment. If the indemnifying party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the indemnified party or parties in connection
with all claims which have been asserted against the indemnified party or
parties in such proceeding by the other parties to such settlement, and shall
be entitled to settle such proceeding without the consent of the indemnified
party or parties so long as such settlement (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If the indemnification provided for in subsection (a) or
(b) of this Section 8 shall for any reason be unavailable in accordance with
its terms to an indemnified party or insufficient to hold it harmless in
respect of any losses, claims, damages, liabilities, costs or expenses
referred to in and intended to be covered under such subsection (a) or (b), as
the case may be, of this Section 8, then the indemnifying party and the
indemnified party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages, liabilities,
costs or expenses referred to in such subsection (a) or (b), as the case may
be, of this Section 8, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other in connection with the statement or omission that resulted
in such losses, claims, damages, liabilities, costs or expenses as well as any
other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the indemnifying
party or the indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this subsection (d)
M-2-13
<PAGE>
were determined by per capita allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities, costs or expenses referred to above
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim which is the subject of this subsection (d), subject to the
limitations therein provided under subsection (c). The indemnifying party
shall pay such expenses as and when incurred, at the request of the
indemnified party, and to the extent that the indemnifying party will be
ultimately obligated to pay such expenses. If and to the extent that any
expenses so paid by the indemnifying party are subsequently determined to not
be required to be borne by the indemnifying party hereunder, the indemnified
party which received such payment shall promptly refund the amount so paid to
the indemnifying party. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in
this Section 8 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any of the indemnified parties, and (iii) acceptance of and payment
for the Mortgage Loans, the OfficeMax REMIC Regular Interest and the OfficeMax
REMIC Residual Interest.
(f) The Purchaser will cause the Seller to be a third party
beneficiary of the indemnity and contribution agreements of Column in Section
8 of the Column Mortgage Loan Purchase Agreement and of GSMC in Section 8 of
the GSMC Mortgage Loan Purchase Agreement.
9. Notices. All communications hereunder shall be in writing
and effective only upon receipt and, if sent to the Purchaser, will be sent by
regular prepaid U.S. Mail or prepaid reputable overnight courier or delivered
by hand and confirmed to it at 277 Park Avenue, 9th Floor, New York, New York
10172, Attention: N. Dante LaRocca, or such other address as may be designated
by the Purchaser to the Seller in writing, or, if sent to the Seller or GECC,
will be sent by regular prepaid U.S. Mail or prepaid reliable overnight
courier or delivered by hand and confirmed to the Seller or GECC, as
applicable, at 292 Long Ridge Rd., Stamford, Connecticut 06927, Attention:
Kathy A. Cassidy, fax no. 203/357-6364, or such other address as may be
designated by the Seller or GECC to the Purchaser in writing.
10. Miscellaneous. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought. This Agreement may not be changed in any manner
which would have a material adverse effect on Holders of the Certificates
without the prior written consent of the Trustee. This Agreement also may not
be changed in any manner which would have a material adverse effect on any
other third party beneficiary hereof without the prior written consent of that
person. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an
M-2-14
<PAGE>
original and all of which shall together constitute but one and the same
instrument. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns, and no other
person will have any right or obligation hereunder, other than as provided in
Section 11 hereof.
11. Third Party Beneficiaries.
(a) The Trustee and the Certificateholders are intended
third party beneficiaries of the representations, warranties and covenants
made by the Seller in Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and, to the
extent relevant to the foregoing, in Sections 9, 10, 12, 13, 14, 15, 16 and 19
and the first sentence of Section 17) of this Agreement. It is acknowledged
that such representations, warranties and covenants of the Seller may be
enforced by the Trustee against the Seller, on behalf of itself and the
Certificateholders, to the same extent as if they were parties hereto.
(b) DLJSC and Goldman Sachs are each an intended third party
beneficiary of the representations, warranties and covenants of the Seller set
forth in Sections 3 (a), 5, 6, and 8 and the covenants of GECC set forth in
Section 20 (and, to the extent relevant to the foregoing, in Sections 10, 13,
14, 15, 16 and 17) of this Agreement. It is acknowledged and agreed that such
representations, warranties and covenants may be enforced by or on behalf of
an Underwriter against the Seller and, with respect to Section 20, GECC to the
same extent as if it was a party hereto.
(c) Column, GSMC and each of the officers, directors,
employees, agents, controlling persons and affiliates of the Purchaser, DLJSC,
Goldman Sachs, GSMC and Column referred to in Section 8 hereof is an intended
third party beneficiary of the representations, warranties, covenants and
indemnities of the Seller set forth in Section 8 and the covenants of GECC set
forth in Section 20 (and, to the extent relevant to the foregoing, in Sections
10, 13, 14, 15, 16 and 17) of this Agreement. It is acknowledged and agreed
that such representations, warranties, covenants and indemnities may be
enforced by or on behalf of any such person or entity against the Seller and,
with respect to Section 20, GECC to the same extent as if such person or
entity was a party hereto.
(d) Each of the officers, directors, employees, agents,
controlling persons and affiliates of the Seller referred to in Section 8
hereof is an intended third party beneficiary of the representations,
warranties, covenants and indemnities of the Purchaser set forth in Section 8
and the covenants of DLJ Mortgage Capital, Inc. ("DLJMC") set forth in Section
20 (and, to the extent relevant to the foregoing, in Sections 10, 13, 14, 15
and 16) of this Agreement. It is acknowledged and agreed that such
representations, warranties, covenants and indemnities may be enforced by or
on behalf of any such person or entity against the Purchaser and, with respect
to Section 20, DLJMC to the same extent as if such person or entity was a
party hereto.
12. Characterization. It is the express intent of the
parties hereto that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the
M-2-15
<PAGE>
Seller of all the Seller's right, title and interest in and to the Mortgage
Loans, the OfficeMax REMIC Regular Interest and the OfficeMax REMIC Residual
Interest. Furthermore, it is not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans, the OfficeMax REMIC
Regular Interest and the OfficeMax REMIC Residual Interest by the Seller to
secure a debt or other obligation of the Seller.
13. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates
of officers of the Seller delivered pursuant hereto, shall remain operative
and in full force and effect and shall survive delivery of the Mortgage Loans,
the OfficeMax REMIC Regular Interest and the OfficeMax REMIC Residual Interest
by the Seller to the Purchaser (and by the Purchaser to the Trustee),
notwithstanding any restrictive or qualified endorsement or assignment in
respect of any Mortgage Loan.
14. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
is held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable
law, the parties hereto waive any provision of law which prohibits or renders
void or unenforceable any provision hereof.
15. Governing Law; Consent to Jurisdiction. This Agreement
will be governed by and construed in accordance with the substantive laws of
the State of New York, applicable to agreements made and to be performed
entirely in said state. The Seller hereby irrevocably (i) submits to the
jurisdiction of any federal courts sitting in New York City with respect to
matters arising out of or relating to this Agreement (or, if federal
jurisdiction does not apply, then New York State courts); (ii) agrees that all
claims with respect to such action or proceeding may be heard and determined
in such courts; (iii) waives, to the fullest possible extent, the defense of
an inconvenient forum; and (iv) agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
16. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
M-2-16
<PAGE>
17. Successors and Assigns. The rights and obligations of
the Seller and GECC under this Agreement shall not be assigned by the Seller
or GECC, as the case may be, without the prior written consent of the
Purchaser, except that any person into which the Seller or GECC, as the case
may be, may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller or GECC, as the case
may be, is a party, or any person succeeding to all or substantially all of
the business of the Seller or GECC, as the case may be, shall be the successor
to the Seller or GECC, as the case may be, hereunder. The Purchaser has the
right to assign its interest under this Agreement (other than Sections 8 and
20), in whole or in part, as contemplated by Section 4(c) or as may otherwise
be required to effect the purposes of the Pooling and Servicing Agreement, and
the assignee shall, to the extent of such assignment, succeed to the rights
and obligations hereunder of the Purchaser.
18. Information. The Seller shall provide the Purchaser with
such information about the Seller, the Mortgage Loans and the Seller's
underwriting and servicing procedures as is (i) customary in commercial
mortgage loan securitization transactions, (ii) required by a Rating Agency or
a governmental agency or body or (iii) reasonably requested by the Purchaser
for use in a public or private disclosure document, and shall verify the
accuracy thereof.
19. Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that certain groups
of Mortgage Loans identified on the Mortgage Loan Schedule as being
cross-collateralized with each other, are, in the case of each such particular
group of Mortgage Loans (each, a "Cross-Collateralized Group"), evidenced by a
single mortgage note and secured by mortgages, deeds of trust and/or deeds to
secure debt on all the Mortgaged Properties identified on the Mortgage Loan
Schedule as corresponding to such Cross-Collateralized Group. Each such
Mortgage Loan actually represents a portion of the entire indebtedness
evidenced by the related mortgage note that has been allocated to the
Mortgaged Property identified on the Mortgage Loan Schedule as corresponding
to such Mortgage Loan. Each of the Mortgage Loans constituting each such
Cross-Collateralized Group shall be deemed to be a separate Mortgage Loan that
is (a) evidenced by a mortgage note identical to the mortgage note that
evidences such Cross-Collateralized Group (but in a principal amount equal to
the principal balance allocated to such Mortgage Loan) and (b) cross-defaulted
and cross-collateralized with each other Mortgage Loan in such
Cross-Collateralized Group. In addition, it is hereby acknowledged that
certain other groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other, are, in the case of
each such particular group of Mortgage Loans (each, also a
"Cross-Collateralized Group"), by their terms, cross-defaulted and
cross-collateralized. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this
Section 19 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the
Pooling and Servicing Agreement, shall be interpreted in a manner consistent
with this Section 19. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in
the definition of "Mortgage File" and covering all the Mortgage Loans in such
Cross-Collateralized Group, the inclusion of the original of such document in
the Mortgage
M-2-17
<PAGE>
File for any of the Mortgage Loans constituting such Cross-Collateralized Group
shall be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan.
20. Joinder. GECC agrees, in consideration of and as an
inducement to the Purchaser's purchase of the Mortgage Loans from the Seller,
to indemnify and hold harmless the Purchaser, DLJSC, Goldman Sachs, GSMC,
Column, their respective officers and directors, and any person who controls
any of the Purchaser, DLJSC, Goldman Sachs, GSMC or Column within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, against
any failure by the Seller to perform any of its obligations under Section 8
hereof (as they relate to the indemnity agreement of the Seller in Section
8(a) and the corresponding contribution obligations in Section 8(c)) (the
"Covered Obligations"), promptly after receipt from any indemnified party of
written notice of any such failure. DLJMC agrees, in consideration of and as
an inducement to the Seller's sale of the Mortgage Loans to the Purchaser, to
indemnify and hold harmless the Seller, its officers and directors, and any
person who controls any of the Seller within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any failure by the
Purchaser to perform any of its obligations under Section 8 hereof (as they
relate to the indemnity agreement of the Purchaser in Section 8(b) and the
corresponding contribution obligations in Section 8(c)), promptly after
receipt from any indemnified party of written notice of any such failure. Each
of GECC and DLJMC hereby waives notice of acceptance of its obligations
hereunder and notice of any obligation or liability to which it may apply, and
waives presentment, demand for payment, protest, notice of dishonor or
non-payment of any such obligation or liability, suit or the taking of other
action by any party hereto against, and any other notice to GECC and DLJMC, as
applicable. Each of GECC's and DLJMC's obligations hereunder shall not be
affected by any events, occurrences or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a guarantor or surety
and such obligations will only be discharged by full, complete and final
payment of the Covered Obligations.
M-2-18
<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Seller have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
GE CAPITAL ACCESS, INC.
By:_______________________________
Name:
Title: Authorized Signatory
DLJ COMMERCIAL MORTGAGE CORP.
By: _______________________________
Name:______________________________
Title:_______________________________
SOLELY FOR PURPOSES OF SECTION 20
(AND SECTION 8) OF THIS AGREEMENT:
GENERAL ELECTRIC CAPITAL CORPORATION
By:_______________________________
Name:
Title: Authorized Signatory
SOLELY FOR PURPOSES OF SECTION 20
(AND SECTION 8) OF THIS AGREEMENT:
DLJ MORTGAGE CAPITAL, INC.
By: ______________________________
Name:_____________________________
Title:______________________________
M-2-19
<PAGE>
Exhibit A
Certain Documents to be Delivered by the Seller
with Respect to the Mortgage Loans
The documents and instruments to be delivered to the Trustee
(or a Custodian on behalf of the Trustee) in respect of each Mortgage Loan
pursuant to Section 2(a) of this Agreement are, subject to Section 19, as
follows:
(i) the original executed Mortgage Note, endorsed
(without recourse) to the order of Norwest Bank
Minnesota, National Association, as trustee for the
registered holders of DLJ Commercial Mortgage
Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2;
(ii) an original or copy of the Mortgage and of any
intervening assignments thereof that precede the
assignment referred to in clause (iv) below, in
each case (unless such document has not yet been
returned from the applicable recording office) with
evidence of recording indicated thereon;
(iii) an original or copy of any related Assignment of
Leases (if such item is a document separate from the
Mortgage) and of any intervening assignments thereof
that precede the assignment referred to in clause (v)
below, in each case (unless such document has not yet
been returned from the applicable recording office)
with evidence of recording indicated thereon;
(iv) an original executed assignment of the Mortgage, in
favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders
of DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series
1999-CG2, in recordable form;
(v) an original assignment of any related Assignment of
Leases (if such item is a document separate from
the Mortgage), in favor of Norwest Bank Minnesota,
National Association, as trustee for the registered
holders of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates,
Series 1999-CG2, in recordable form;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution
agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have
been modified or the Mortgage Loan has been
assumed;
<PAGE>
(vii) the original or a copy of the policy of lender's
title insurance issued on the date of the
origination of such Mortgage Loan (provided, if such
policy has not yet been issued, a pro forma policy or
an irrevocable, binding commitment to issue such
title insurance policy shall be delivered pending
receipt of the final policy from the title insurer);
(viii) filed copies of any prior UCC Financing Statements
in favor of the originator of such Mortgage Loan or
in favor of any assignee prior to the Trustee (but
only to the extent the Seller had possession of such
UCC Financing Statements prior to the Closing Date)
and, if there is an effective UCC Financing Statement
in favor of the Seller on record with the applicable
public office for UCC Financing Statements, an
original UCC-2 or UCC-3, as appropriate, in favor of
Norwest Bank Minnesota, National Association, as
trustee for the registered holders of DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2;
(ix) any environmental indemnity agreement, power of
attorney, property management agreement, ground
lease, intercreditor agreement, cash management
agreement and lock-box agreement relating to such
Mortgage Loan;
(x) any original documents (including any security
agreements and any Letters of Credit and related
letter of credit reimbursement agreements) relating
to Additional Collateral;
(xi) insurance certificates relating to hazard insurance
policies maintained by the Borrower with respect to
the related Mortgaged Property that are in the
possession of Seller; and
(xii) any other documents identified in the Pooling and
Servicing Agreement as constituting part of the
Mortgage File.
-2-
<PAGE>
Exhibit B
Representations and Warranties with respect to the Seller
The Seller hereby represents and warrants that, as of the
Closing Date:
(a) The Seller is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its assets and conduct its
business, is duly qualified as a foreign corporation in good standing in all
jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the ability of the
Seller to perform its obligations hereunder, and the Seller has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement by it, and has the corporate power and authority
to execute, deliver and perform this Agreement and all the transactions
contemplated hereby, including, but not limited to, the power and authority to
sell, assign, transfer, set over and convey the Mortgage Loans in accordance
with this Agreement;
(b) This Agreement has been duly authorized, executed and
delivered by the Seller and assuming its due authorization, execution and
delivery by the Purchaser, will constitute a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with
the terms of this Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law), or by public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
which purport to provide indemnification from liabilities under applicable
securities laws;
(c) The execution and delivery of this Agreement by the
Seller and the performance of its obligations hereunder (1) will not conflict
with any provision of any law or regulation to which the Seller is subject, or
conflict with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of any of the Seller's organizational
documents or any agreement or instrument to which the Seller is a party or by
which it is bound, or any order or decree applicable to the Seller, or result
in the creation or imposition of any lien on any of the Seller's assets or
property, in each case which would materially and adversely affect the ability
of the Seller to carry out the transactions contemplated by this Agreement;
and (2) does not require the consent of any third party or such consent has
been obtained;
(d) There is no action, suit, proceeding or investigation
pending or, to the knowledge of the Seller, threatened against the Seller in
any court or by or before any other governmental agency or instrumentality
which, in the Seller's good faith and reasonable judgment, would materially
and adversely affect the validity of this Agreement or the ability of the
Seller to enter into, and carry out the transactions contemplated by, this
Agreement;
<PAGE>
(e) The Seller is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default might have consequences
that, in the Seller's good faith and reasonable judgment, would materially and
adversely affect the condition (financial or otherwise) or operations of the
Seller or its properties or might have consequences that would materially and
adversely affect its performance hereunder;
(f) No consent, approval, authorization or order of, or
filing or registration with, any court or governmental agency or body is
required for the execution, delivery and performance by the Seller of or
compliance by the Seller with this Agreement or the consummation of the
transactions contemplated by this Agreement, other than those which have been
obtained by the Seller;
(g) The Seller is a wholly-owned subsidiary of General
Electric Capital Corporation.
-2-
<PAGE>
Exhibit C
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Exhibit C, the phrase "the Seller's
knowledge" and other words and phrases of like import shall mean the actual
state of knowledge of the Seller regarding the matters referred to, in each
case without having conducted any independent inquiry into such matters and
without any obligation to have done so (except as expressly set forth herein).
The Seller hereby represents and warrants that, as of the
date hereinbelow specified or, if no such date is specified, as of the Closing
Date and subject to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is complete, true,
complete (in accordance with the requirements of the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this
Agreement and as of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer to the Purchaser of the Mortgage Loans, the Seller had good and
marketable title to, and was the sole owner of, each Mortgage Loan. The Seller
has full right, power and authority to transfer and assign each Mortgage Loan
to or at the direction of the Purchaser free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. Upon completion
of the conveyance contemplated hereby, the Seller will have validly and
effectively conveyed to the Purchaser all legal and beneficial interest in and
to such Mortgage Loan free and clear of any pledge, lien or security interest
created by or through the Seller. The sale of the Mortgage Loans to the
Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. As of the Closing Date, no scheduled
payment of principal and interest under any Mortgage Loan was thirty (30) days
or more past due, and no Mortgage Loan has been thirty (30) days or more
delinquent in the twelve-month period immediately preceding the Closing Date.
4. Lien; Valid Assignment. The Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and,
subject to the exceptions set forth in Paragraph 13 below, enforceable first
priority lien upon the related Mortgaged Property, prior to all other liens
and encumbrances, except for (a) the lien for current real estate taxes and
assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy,
none of which materially interferes with the security intended to be provided
by such Mortgage, the current use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income
sufficient to service the related Mortgage Loan, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, none of
which materially interferes with the security intended to be provided by such
Mortgage, the current use of the related Mortgaged Property or the
<PAGE>
current ability of the related Mortgaged Property to generate income
sufficient to service the related Mortgage Loan, (d) other matters to which
like properties are commonly subject, none of which materially interferes with
the security intended to be provided by such Mortgage, the use of the related
Mortgaged Property or the current ability of the related Mortgaged Property to
generate income sufficient to service the related Mortgage Loan, and (e) if
such Mortgage Loan is a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same Cross-Collateralized
Group (the foregoing items (a) through (e) being herein referred to as the
"Permitted Encumbrances"). The related assignment of such Mortgage executed
and delivered in favor of the Trustee is in recordable form and, subject to
the exceptions set forth in Paragraph 13 below, constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Borrower's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property.
In connection with the operation of the Mortgaged Property as either a (i)
Hospitality Property or (ii) independent/assisted living or healthcare
facility, the security agreements, financing statements or other instruments,
if any, related to each Mortgage Loan establish and create a valid security
interest in all items of personal property owned by the related Borrower
material to the conduct in the ordinary course of the Borrower's business
conducted on the related Mortgaged Property, subject only to purchase money
security interests and security interests to secure revolving lines of credit
and similar financing. The related assignment of such security interest
executed and delivered in favor of the Purchaser constitutes a legal, valid
and binding assignment thereof from the relevant assignor to the Purchaser.
5. Assignment of Leases and Rents. The Assignment of Leases,
if any, related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and, subject to the exceptions set
forth in Paragraph 13 below, enforceable first priority lien on and security
interest in the related Borrower's interest in all leases, sub-leases,
licenses or other agreements pursuant to which any person is entitled to
occupy, use or possess all or any portion of the related Mortgaged Property,
and each assignor thereunder has the full right to assign the same. The
related assignment of such Assignment of Leases executed and delivered in
favor of the Trustee is in recordable form and, subject to the exceptions set
forth in Paragraph 13 below, constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Assignment of
Leases. To the Seller's knowledge, no person owns any interest in any payments
due under the related leases that is superior to the lien created by such
Assignment of Leases, if any.
6. Mortgage Status; Waivers and Modifications. No Mortgage
related to a Mortgage Loan has been satisfied, canceled, rescinded or
subordinated in whole or in material part, and the related Mortgaged Property
has not been released from the lien of such Mortgage, in whole or in material
part, nor has any instrument been executed that would effect any such
satisfaction, cancellation, subordination, rescission or release. None of the
terms of any Mortgage Note, Mortgage or Assignment of Leases related to a
Mortgage Loan have been impaired, waived, altered or modified in any respect,
except by written instruments, all of which are included in the related
-2-
<PAGE>
Mortgage File. No Mortgage Loan has been modified in any manner such that the
terms of such Mortgage Loan, as so modified, are materially (and adversely to
the owner thereof) different from the terms of such Mortgage Loan described in
the Prospectus.
7. Condition of Property; Condemnation. Each Mortgaged
Property securing a Mortgage Loan is, to the Seller's knowledge, based on its
review of the most recent inspection report (which, if prepared by a servicer
of such Mortgage Loan, was so prepared in accordance with the related
servicing agreement), free and clear of any damage that would materially and
adversely affect its value as security for such Mortgage Loan. The Seller has
not received notice (and is not otherwise aware) of any proceeding pending for
the total or partial condemnation of or affecting the Mortgaged Property
securing any Mortgage Loan. To the Seller's knowledge, as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's title insurance policy referred to herein or that do
not materially and adversely affect the value or marketability of such
Mortgaged Property, and no improvements on adjoining properties materially
encroached upon such Mortgaged Property so as to materially and adversely
affect the value or marketability of such Mortgaged Property.
8. Title Insurance. Each Mortgaged Property securing a
Mortgage Loan is covered by an American Land Title Association (or an
equivalent form of) lender's title insurance policy (the "Title Policy") in
the original principal amount of such Mortgage Loan after all advances of
principal insuring that the related Mortgage is a valid first priority lien on
such Mortgaged Property, subject only to the exceptions stated therein (or a
pro forma title policy or marked up title insurance commitment on which the
required premium has been paid exists which evidences that such Title Policy
will be issued). Such Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder (and the Seller
has not received notice of any material claims having been made or paid
thereunder). No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. The insurer issuing such
Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located, and with respect to at least a majority
of the Mortgage Loans (by outstanding principal balance as of the Cut-off
Date) the insurer is a nationally recognized insurer. Such Title Policy
contains no exclusion for, or it affirmatively insures, (a) access to a public
road, (b) that there are no material encroachments of any part of the
improvements on the related Mortgaged Property over easements, which
encroachments could reasonably be expected to materially interfere with the
use of the related Mortgaged Property (unless the related Mortgaged Property
is located in a jurisdiction where such affirmative insurance is not
available) and (c) that the area shown on the survey conducted in connection
with the origination of the related Mortgage Loan is the same as the property
legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been made but a portion
-3-
<PAGE>
thereof is being held back pending the satisfaction of certain leasing or
other economic criteria with respect to the related Mortgaged Property), and
there is no obligation for future advances with respect thereto. Any and all
requirements under each Mortgage Loan as to completion of any on-site or
off-site improvement and as to disbursements of any funds escrowed for such
purpose, which requirements were to have been complied with on or before the
Closing Date, have been complied with or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for
each Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in Paragraph 13
below) such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property
of the principal benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage in respect
of any Mortgage Loan is a deed of trust, (a) a trustee, duly qualified under
applicable law to serve as such, is properly designated and serving under such
Mortgage, and (b) except in connection with a trustee's sale after default by
the related Borrower, no fees or expenses are payable to such trustee by the
Seller, the Purchaser or any transferee thereof.
12. Environmental Conditions. An environmental site
assessment was performed with respect to each Mortgaged Property in connection
with the origination of the related Mortgage Loan, a report of each such
assessment (an "Environmental Report") has been delivered to the Purchaser,
and either (x) no such Environmental Report reveals any known circumstances or
conditions with respect to the related Mortgaged Property that rendered such
Mortgaged Property, at the date of such Environmental Report, in material
violation of any applicable environmental laws or (y) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then either (i) the
expenditure of funds necessary to effect such remediation is not material in
relation to the outstanding principal balance of the related Mortgage Loan and
such remediation would not materially and adversely affect the value of the
Mortgaged Property, or (ii) a sufficient escrow of funds exists for purposes
of effecting such remediation, or (iii) the related Borrower or other
responsible party is currently taking such actions, if any, with respect to
such circumstances or conditions as have been required by the applicable
governmental regulatory authority or (iv) the related Mortgaged Property is
insured under a policy of insurance, subject to certain per occurrence and
aggregate limits and a deductible, against certain losses arising from such
circumstances and conditions. To the Seller's knowledge, there are no
circumstances or conditions with respect to such Mortgaged Property not
revealed in such Environmental Report that render such Mortgaged Property in
material violation of any applicable environmental laws. The Mortgage
encumbering such Mortgaged Property requires the related Borrower to comply
with all applicable federal, state and local environmental laws and
regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and
other agreement executed by or on behalf of the related Borrower with respect
to each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit
-4-
<PAGE>
deficiency legislation), and each assignment of Mortgage and assignment of
Assignment of Leases executed by the Seller is the legal valid and binding
obligation of the Seller, and each such Mortgage Note, Mortgage and other
agreement and each such assignment of Mortgage and assignment of Assignment of
Leases is enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforcement is considered in
a proceeding in equity or at law), and there is no valid defense, counterclaim
or right of offset or rescission available to the related Borrower with
respect to such Mortgage Note, Mortgage or other agreements.
14. Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured against loss by hazards of extended
coverage in an amount at least equal to the lesser of the outstanding
principal balance of such Mortgage Loan and 100% of the full replacement cost
of the improvements located on the related Mortgaged Property, and if
applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption insurance
policy providing coverage for at least six (6) months. If any portion of the
improvements on a Mortgaged Property securing any Mortgage Loan was, at the
time of the origination of such Mortgage Loan, in an area identified in the
Federal Register by the Flood Emergency Management Agency as having special
flood hazards, and flood insurance was available, a flood insurance policy
meeting any requirements of the then current guidelines of the Federal
Insurance Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least of (1) the
outstanding principal balance of such Mortgage Loan, (2) the full insurable
value of such Mortgaged Property, and (3) the maximum amount of insurance
available under the National Flood Insurance Act of 1968, as amended. All such
hazard and flood insurance policies contain a standard "New York" mortgagee
clause for the benefit of the holder of the related Mortgage, its successors
and assigns, as mortgagee, and are not terminable (nor may the amount of
coverage provided thereunder be reduced) without prior written notice to the
mortgagee, and all premiums payable thereon as of the Closing Date, whether
annual or otherwise, have been paid. Each Mortgaged Property securing a
Mortgage Loan is also covered by comprehensive general liability insurance in
an amount at least equal to $1 million per occurrence. Each Mortgage requires
that the Borrower maintain insurance as described above or permits the
Mortgagee to require insurance as described above. No notice of termination,
cancellation or reduction has been received by the Seller with respect to any
such hazard, flood or liability insurance policy. The Mortgage for each
Mortgage Loan provides that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of the related Mortgaged Property or to the payment of amounts
due under such Mortgage Loan, except to the extent that (i) the Mortgage
entitles the Borrower to any portion of such proceeds remaining after the
repair or restoration of the Mortgaged Property and payment of amounts due
under the Mortgage Loan, and (ii) the Borrower's interest in the Mortgaged
Property is a leasehold interest (in which case, the provisions of the
Mortgage Loan documents relating to the application of the proceeds of
casualty insurance policies are as described in Item 18(i)).
-5-
<PAGE>
15. Taxes and Assessments. To the Seller's knowledge, there
are no delinquent or unpaid taxes or assessments (including assessments
payable in future installments), or other outstanding charges affecting any
Mortgaged Property securing a Mortgage Loan which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For
purposes of this representation and warranty, real property taxes and
assessments shall not be considered unpaid until the date on which interest
and/or penalties would be payable thereon.
16. Borrower Bankruptcy. No Borrower under a Mortgage Loan
is, to the Seller's knowledge, a debtor in any state or federal bankruptcy or
insolvency proceeding.
17. Local Law Compliance. To the best of the Seller's
knowledge based on due diligence customarily undertaken by prudent
institutional mortgage lenders, the improvements located on or forming part of
each Mortgaged Property securing a Mortgage Loan comply with applicable zoning
laws and ordinances, or constitute a legal non-conforming use or structure or,
if any such improvement does not so comply, such non-compliance does not
materially and adversely affect the value of the related Mortgaged Property.
18. Leasehold Estate Only. If "Leasehold" is set forth
opposite the name of the related Mortgaged Property on the Mortgage Loan
Schedule, such Mortgage Loan is secured by the interest of a Borrower as a
lessee under a ground lease of a Mortgaged Property (a "Ground Lease") (with
respect to Representations 18 and 19, the term "Ground Lease" shall mean such
ground lease, all written amendments and modifications, and any related
estoppels or agreements from the ground lessor), but not by the related fee
interest in such Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been or
will be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation, with
the exception of written instruments which are a part of the related Mortgage
File;
(b) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related Mortgage,
other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower's interest in such Ground Lease is
assignable to the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the event
that it is so assigned, is further assignable by the Purchaser and its
successors and assigns upon notice to, but without the need to obtain the
consent of, such lessor;
(d) At the date of origination, such Ground Lease was in
full force and effect, and the Seller has not received as of the Closing Date
notice (nor is the Seller otherwise aware) that any default has occurred under
such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee (provided that the
mortgagee has provided the lessor with notice of
-6-
<PAGE>
its lien in accordance with the provisions of such Ground Lease), and such
Ground Lease, or an estoppel letter received by the mortgagee from the lessor,
further provides that no notice of termination given under such Ground Lease
is effective against the mortgagee unless a copy has been delivered to the
mortgagee in the manner described in such Ground Lease;
(f) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease has an original term which extends not
less than ten (10) years beyond the Stated Maturity Date of the related
Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a
new lease with a mortgagee upon termination of such Ground Lease for any
reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds (other than in
respect of a total or substantially total loss or taking) will be applied
either (i) to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee appointed by it having the
right to hold and disburse such proceeds as the repair or restoration
progresses (except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to the payment
of the outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon; and
(j) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured default, to
disturb the possession, interest or quiet enjoyment of any lessee in the
relevant portion of the Mortgaged Property subject to such Ground Lease for
any reason, or in any manner, which would materially adversely affect the
security provided by the related Mortgage.
19. Leasehold Estate and Fee Interest. If "Fee/Leasehold" is
set forth opposite the name of the of the related Mortgaged Property on the
Mortgage Loan Schedule, such Mortgage Loan is secured in whole or in part by
the interest of the related Borrower under a Ground Lease and by the related
Fee Interest and:
(a) Such Fee Interest is subject, and subordinated of
record, to the related Mortgage; and the related Mortgage does not by its
terms provide that it will be subordinated to the lien of any other mortgage
or other lien upon such Fee Interest; and
(b) Upon occurrence of a default under the terms of the
related Mortgage by the Borrower, the mortgagee has the right to foreclose
upon or otherwise exercise its rights with respect
-7-
<PAGE>
to such Fee Interest within a period of time that would not have been viewed,
as of the date of origination, as commercially unreasonable by a prudent
commercial mortgage lender.
20. Escrow Deposits. With respect to escrow deposits and
payments relating to any Mortgage Loan, all such payments have been delivered
to the Master Servicer, and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made.
21. Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
22. Advancement of Funds. No holder of a Mortgage Loan has,
to the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any amount
required by such Mortgage Loan.
23. Equity Interest. No Mortgage Loan is automatically
convertible into an equity ownership interest in the related Mortgaged
Property or the related Borrower.
24. Legal Proceedings. To the Seller's knowledge, there are
no pending or threatened actions, suits or proceedings by or before any court
or governmental authority against or affecting the Borrower under any Mortgage
Loan or the related Mortgaged Property that, if determined adversely to such
Borrower or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property or the ability of the Borrower to pay
principal, interest or any other amounts due under such Mortgage Loan.
25. Other Mortgage Liens. Except as otherwise described
under "Description of the Mortgage Pool--Additional Mortgage Loan
Information--Additional and Other Financing" in the Prospectus Supplement,
none of the Mortgage Loans permits the related Mortgaged Property to be
encumbered by any mortgage lien junior to or of equal priority with the lien
of the related Mortgage without the prior written consent of the holder
thereof. To the Seller's knowledge, except as otherwise specified under
"Description of the Mortgage Pool--Additional Mortgage Loan
Information--Additional and Other Financing" in the Prospectus Supplement, and
except for cases involving other Mortgage Loans, the Mortgaged Properties are
not encumbered by any mortgage liens junior to or of equal priority with the
liens of the related Mortgages.
26. No Mechanics' Liens. To the Seller's knowledge, (i) each
Mortgaged Property securing a Mortgage Loan is free and clear of any and all
mechanics' and materialmen's liens that are not bonded or escrowed for, and
(ii) no rights are outstanding that under law could give rise to any such lien
that would be prior or equal to the lien of the related Mortgage. The Seller
has not received notice with respect to any Mortgage Loan that any mechanics'
and materialmen's liens have encumbered the related Mortgaged Property since
origination that have not been released, bonded or escrowed for.
-8-
<PAGE>
27. Compliance with Usury Laws. Each Mortgage Loan complied
with all applicable usury laws in effect at its date of origination.
28. Licenses and Permits. To the Seller's knowledge, based
on due diligence customarily performed by commercially reasonable lenders in
the origination of comparable mortgage loans, as of the date of origination of
each Mortgage Loan, (i) the related Borrower (or operator of the Mortgaged
Property) had all material licenses, permits and authorizations required by
applicable law for the ownership and operation of the related Mortgaged
Property and (ii) all such licenses, permits and authorizations were valid and
in full force and effect.
29. Servicing Practices. The servicing and collection
practices used with respect to the Mortgage Loans have in all material
respects been legal and met customary standards utilized by prudent
institutional commercial and multifamily mortgage loan master servicers.
30. Cross-collateralization. No Mortgage Loan is
cross-collateralized with any loan other than one or more other Mortgage
Loans.
31. Releases of Mortgaged Property. Except as described in
the next sentence, no Mortgage Note or Mortgage requires the mortgagee to
release all or any portion of the related Mortgaged Property from the lien of
the related Mortgage except upon (i) payment in full of all amounts due under
the related Mortgage Loan, (ii) delivery of U.S. Treasury securities in
connection with a defeasance of the related Mortgage Loan or (iii) in certain
instances, the substitution of a qualifying replacement mortgaged property.
The Cross-Collateralized Mortgage Loans, and the other individual Mortgage
Loans secured by multiple parcels, may require the respective mortgagee(s) to
grant releases of portions of the related Mortgaged Property or, in the case
of a Cross-Collateralized Group, the release of one or more related Mortgaged
Properties upon (a) the satisfaction of certain legal and underwriting
requirements and (b) the payment of a release price or delivery of U.S.
Treasury securities as defeasance collateral in connection therewith.
32. No Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the lender or provides for
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property.
33. Fixed Rate Loans. Each Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except in the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
34. Inspection. In connection with the origination of each
Mortgage Loan, the Seller inspected, or caused the inspection of, the related
Mortgaged Property.
35. No Material Default. To the Seller's knowledge, there
exists no material default, breach, violation or event of acceleration (and no
event which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the Mortgage Note or Mortgage for any
Mortgage Loan, in any such case to the extent the same materially and
adversely affects the value of the Mortgage Loan and the related Mortgaged
Property; provided, however, that
-9-
<PAGE>
this representation and warranty does not cover any default, breach, violation
or event of acceleration that specifically pertains to or arises out of the
subject matter otherwise covered by any other representation and warranty made
by the Seller in any of Paragraphs 3, 7, 12, 14, 15, 16, 17, 20, 24, 25, 26
and 28 of this Exhibit C.
36. Due-on-Sale. Subject to exceptions set forth in the
related Mortgage, such Mortgage contains a "due-on-sale" clause that provides
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the prior written consent of the holder, the
Mortgaged Property subject to such Mortgage, or any controlling interest in
the related Borrower, is directly or indirectly transferred or sold.
37. Single Purpose Entity. The Borrower on each Mortgage
Loan that, individually or together with the Mortgage Loans of affiliated
Borrowers, represented 5% or more of the Initial Pool Balance, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was
formed or organized solely for the purpose of owning and operating one or more
of the Mortgaged Properties securing the Mortgage Loans and prohibit it from
engaging in any business unrelated to such Mortgaged Property or Properties,
and whose organizational documents further provide, or which entity
represented in the related Mortgage Loan documents, substantially to the
effect that it does not have any assets other than those related to its
interest in and operation of such Mortgaged Property or Properties, or any
indebtedness other than as permitted by the related Mortgage(s) or the other
related Mortgage Loan documents, that it has its own books and records and
accounts separate and apart from any other person, and that it holds itself
out as a legal entity, separate and apart from any other person.
38. Delivery of Mortgage File. The Seller has delivered to
the Trustee or a Custodian appointed thereby, with respect to each Mortgage
Loan, in accordance with Section 2 of this Agreement, a complete Mortgage
File.
39. Whole Loan. Each Mortgage loan is a whole loan and not a
participation interest in a mortgage loan.
40. ARD Loans. As of the Closing Date, each ARD Loan
requires scheduled monthly payments of principal. If any ARD Loan is not paid
in full by its Anticipated Repayment Date, and assuming that it is not
otherwise in default, the rate at which such ARD Loan accrues interest will
increase to the sum of the original Mortgage Rate and a specified margin (such
margin, the "Additional Interest Rate").
41. No Waivers. The Seller has not waived any material
default, breach, violation or event of acceleration existing under the related
Mortgage or Mortgage Note, except by a written instrument contained in the
Mortgage File.
42. Originator Authorized. To the extent required under
applicable law as of the Closing Date, the originator of such Mortgage Loan
was authorized to do business in the
-10-
<PAGE>
jurisdiction in which the related Mortgaged Property is located at all times
when it held the Mortgage Loan to the extent necessary to ensure the
enforceability of such Mortgage Loan.
43. Defeasance Provision. Any Mortgage Loan which contains a
provision for any defeasance of mortgage collateral either (A) requires the
consent of the holder of the Mortgage Loan to any defeasance or (B) permits
defeasance (i) no earlier than two years following the Closing Date, (ii) only
with substitute collateral constituting "government securities" within the
meaning of Treasury Regulation Section 1.860G-2(a)(8)(i) and (iii) only to
facilitate the disposition of mortgage real property and not as part of an
arrangement to collateralize a REMIC offering with obligations that are not
real estate mortgages.
44. Tax Parcels. Each Mortgaged Property constitutes one or
more complete separate tax lots or is subject to an endorsement under the
related Title Policy or in a few instances application has been made or the
Borrower is required to make application to the applicable governing authority
for creation of separate tax lots which shall be effective for the next tax
year.
45. Monthly Payment. Each Mortgage Loan has a Monthly
Payment due on April 1, 1999, which is required to include interest for an
entire month (as determined on a 30/360 basis or an actual/360 basis,
whichever basis applies under the terms of such Mortgage Loan).
46. Fee Interest. If "Fee" is set forth opposite the name of
the related Mortgaged Property on the Mortgage Loan Schedule, the interest of
the related Borrower in such Mortgaged Property is a fee simple interest in
real property.
47. Collateral. The Mortgage Note is not secured by any
collateral that is not conveyed pursuant to this Agreement.
-11-
<PAGE>
Schedule C-1
GECA Mortgage Loan Exceptions
(References are to Numbered Representations in Mortgage Loan Purchase Agreement)
REP NO.
NONE
<PAGE>
Exhibit D-1
Certificate of an Officer of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
Certificate of Secretary of GE Capital Access, Inc.
I, ____________________, a Secretary of GE Capital Access,
Inc. ("GECA") hereby certify as follows:
1. GECA is validly existing and in good standing under the
laws of the State of Delaware.
2. Attached hereto as Exhibit I are true and correct copies
of the Articles of Incorporation and By-Laws of GECA, which Articles of
Incorporation and By-Laws are on the date hereof, and have been at all times,
in full force and effect.
3. To the best of my knowledge, no proceedings looking
toward liquidation or dissolution of GECA are pending or contemplated.
4. Each person listed below is and has been the duly elected
and qualified officer or authorized signatory of GECA and his/her genuine
signature is set forth opposite his/her name:
Name Office Signature
---- ------ ---------
_____________ __________________ ____________________________
_____________ __________________ ____________________________
5. Each person listed above who signed, either manually or
by facsimile signature, the Mortgage Loan Purchase and Sale Agreement, dated
as of June __, 1999 (the "Agreement"), between DLJ Commercial Mortgage Corp.
("DLJCMC") and GECA, or any certificate delivered pursuant thereto, was, at
the time of such signing and delivery, duly authorized or appointed to execute
such document in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such document are their genuine signatures.
6. Attached hereto as Exhibit II is a true and correct copy
of the resolutions of the Board of Directors of GECA enacted on
_______________ authorizing the Agreement and the consummation of the
transactions contemplated thereby. Such resolutions have not been rescinded
and, as of the date hereof, remain in full force and effect.
<PAGE>
Capitalized terms used but not defined herein have the
respective meanings given to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
certificate as of ___________, 1999.
_____________________________________
Name:
Title: Secretary
I, _______________, a ____________________ of GECA, hereby
certify that __________________ is a duly elected or appointed, as the case
may be, qualified and acting Secretary of GECA and that the signature
appearing above is such officer's genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this
certificate as of ___________, 1999.
_____________________________________
Name:
Title:
-2-
<PAGE>
Exhibit D-2
Certificate of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
Certificate of GE Capital Access, Inc.
--------------------------------------
In connection with the execution and delivery by GE Capital
Access, Inc. ("GECA") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase and Sale Agreement, dated
as of June __, 1999 (the "Agreement"), between DLJ Commercial Mortgage Corp.,
as purchaser, and GECA, as seller, the undersigned hereby certifies that (i)
the representations and warranties of GECA in the Agreement are true and
correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) GECA has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part required under the Agreement to be performed or satisfied at or prior
to the date hereof.
Certified this ____ day of June, 1999.
GE CAPITAL ACCESS, INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE>
Exhibit D-3A
Opinion of In-House Counsel to the Seller
Based upon and subject to the foregoing, it is my opinion that:
1. The Seller is a corporation validly existing and in good
standing under the laws of the State of Delaware and has the
requisite corporate power to own its properties, to conduct
its business as presently conducted by it, to own the GECA
Mortgage Loans, to sell the GECA Mortgage Loans to the
Depositor and to enter into and perform its obligations
under the Mortgage Loan Purchase Agreement.
2. GECC is a corporation validly existing and in good standing
under the laws of the State of New York and has the
requisite corporate power to enter into and perform its
obligations under the Mortgage Loan Purchase Agreement.
3. The Mortgage Loan Purchase Agreement has been duly
authorized, executed and delivered by the Seller and GECC.
4. No consent, approval, authorization or order of any State of
New York or federal court or governmental agency or body is
required for the consummation by the Seller of the
transaction contemplated by the Mortgage Loan Purchase
Agreement except for those consents, approvals,
authorizations or orders that previously have been obtained.
5. Neither the sale of the GECA Mortgage Loans as provided in
the Mortgage Loan Purchase Agreement, nor the fulfillment of
the terms or the consummation of any other of the transactions
contemplated by the Mortgage Loan Purchase Agreement, will
result in a breach of the certificate of incorporation or
by-laws of the Seller or, to my knowledge, will conflict with,
result in a breach, violation or acceleration of or constitute
a default under, any indenture or other agreement or
instrument to which the Seller is a party or by which it is
bound, or any State of New York or federal statute applicable
to the Seller, or any order or regulation of any State of New
York or federal court, regulatory body, administrative agency
or other governmental body having jurisdiction over the
Seller.
6. To my knowledge, there are no actions, proceedings or
investigations pending or threatened against the Seller before
any State of New York or State of Delaware or federal court,
administrative agency or other tribunal (a) asserting the
invalidity of the Mortgage Loan Purchase Agreement, (b)
seeking to prevent the consummation of any of the transactions
contemplated in the Mortgage Loan Purchase Agreement or (c)
that might materially and adversely affect the performance by
the Seller of its obligations under, or the validity or
enforceability of, the Mortgage Loan Purchase Agreement.
<PAGE>
Exhibit D-3B
Opinion of Counsel to the Seller
Based upon and subject to the foregoing, it is our opinion
that the Mortgage Loan Purchase Agreement constitutes the legal, valid and
binding obligations of the Seller, enforceable against the Seller in
accordance with the terms of the Mortgage Loan Purchase Agreement, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), and
except to the extent rights to indemnity and contribution may be limited by
applicable law.
<PAGE>
Schedule 1
Mortgage Loan Schedule
<PAGE>
EXHIBIT M-3
FORM OF GSMC MORTGAGE LOAN PURCHASE
AND SALE AGREEMENT
M-3-1
<PAGE>
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of June 11,
1999 (this "Agreement"), is between DLJ Commercial Mortgage Corp., a Delaware
corporation (the "Purchaser") and Goldman Sachs Mortgage Company, a New York
limited partnership (the "Seller").
The Seller intends to sell, assign, transfer, set over and otherwise
convey to the Purchaser, without recourse, subject to the terms and conditions
set forth below, (i) certain multifamily and commercial mortgage loans
(collectively, the "Mortgage Loans") identified and more particularly
described on Schedule 1 attached hereto (the "Mortgage Loan Schedule") and
(ii) the Shadowbrook Apartments REMIC Regular Interest and the Shadowbrook
Apartments REMIC Residual Interest (each as defined in the Pooling and
Servicing Agreement referred to below and, collectively with the Mortgage
Loans, the "Mortgage Assets") which were created pursuant to that certain
REMIC declaration, dated as of June 4, 1999, executed by the Seller (the
"REMIC Declaration" and, collectively with the Mortgage Loans, the "Mortgage
Assets").
Reference is made to the Pooling and Servicing Agreement, dated as of
June 1, 1999 (the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor, GE Capital Loan Services, Inc. as master servicer (the "Master
Servicer"), Banc One Mortgage Capital Markets, LLC, a Delaware limited
liability company, as special servicer (the "Special Servicer"), and Norwest
Bank Minnesota, National Association, as trustee (in such capacity, the
"Trustee") and as REMIC administrator (in such capacity, the "REMIC
Administrator"), relating to the issuance of the Purchaser's Commercial
Mortgage Pass-Through Certificates, Series 1999-CG2 (the "Certificates").
Capitalized terms used without definition herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement as in full
force and effect on the Closing Date (as defined below). The Seller
acknowledges that the Purchaser intends to transfer the Mortgage Assets,
together with certain other multifamily and commercial mortgage loans (the
"Other Loans") acquired from certain other loan sellers (the "Other Loan
Sellers") to the Trustee in exchange for the Certificates. The Purchaser has
entered into an Underwriting Agreement, dated the date hereof (the
"Underwriting Agreement"), with Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJSC") and Goldman, Sachs & Co. ("Goldman Sachs"; and, together
with DLJSC in such capacity, the "Underwriters"), pursuant to which the
Purchaser will sell to the Underwriters all of the Certificates that are to be
registered under the Securities Act of 1933, as amended (the "Securities Act";
and such Certificates, the "Registered Certificates"). The Purchaser has also
entered into a Certificate Purchase Agreement, dated the date hereof (the
"Certificate Purchase Agreement"), with DLJSC and Goldman Sachs (together in
such capacity, the "Initial Non-Registered Certificate Purchasers"), whereby
the Purchaser will sell to the Initial Purchasers all of the remaining
Certificates (the "NonRegistered Certificates").
1. Agreement to Purchase. Subject to the terms and conditions set
forth herein, the Seller agrees to sell, assign, transfer, set over and
otherwise convey (without recourse), and the Purchaser agrees to purchase, the
Mortgage Assets, subject to the rights of (a) the Master Servicer to act as
master servicer with respect to all of the Mortgage Loans and to act as
primary servicer with respect to all of the Mortgage Loans except for those of
the Mortgage Loans identified on the Mortgage Loan Schedule as being
subserviced (the "Subserviced Loans"), (b) the applicable
M-3-2
<PAGE>
subservicers (each, a "Subservicer") to act as primary servicer with respect
to the Subserviced Loans, and (c) Archon Financial, L.P., a Delaware limited
partnership ("Archon"), to terminate any subservicer, to receive any
Additional Servicing Fee (as defined in the Pooling and Servicing Agreement)
and to own and sell the rights to primary service the Subserviced Loans from
time to time to successor subservicers. All references to the Mortgage Assets
hereunder shall be to the Mortgage Assets subject to the rights described in
clause (a), (b) and (c) in the preceding sentence. The purchase and sale of
the Mortgage Assets shall take place on June 22, 1999 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date"). The
Mortgage Loans will have an aggregate Cut-off Date Balance of approximately
$267,158,164 (the "Aggregate Cut-off Date Balance"). The purchase price for
the Mortgage Loans shall be equal to [ ]% of the Aggregate Cut-off Date
Balance of the Mortgage Assets, plus accrued interest thereon at the weighted
average of the Mortgage Rates for the Mortgage Loans from June 1, 1999 (the
"Cut-off Date") to but not including the Closing Date (net of related Master
Servicing Fees and Trustee's Fees), and such purchase price shall be paid to
the Seller on the Closing Date by wire transfer in immediately available funds
or by such other method as shall be mutually acceptable to the parties hereto.
2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 above, the Seller does hereby sell,
assign, transfer, set over and otherwise convey (without recourse) to the
Purchaser all the Seller's right, title and interest in and to the Mortgage
Assets, including all interest and principal received on or with respect to
the Mortgage Assets after the Cut-off Date (other than scheduled payments of
interest and principal due on or before the Cut-off Date), together with all
of the Seller's right, title and interest in and to the proceeds of any
related title, hazard or other insurance policies and any escrow, reserve or
other comparable accounts related to the Mortgage Loans. On the Closing Date,
the Seller shall transfer or cause to be transferred to the Master Servicer
the funds in such escrow, reserve or other comparable accounts related to the
Mortgage Loans (except with respect to the Subserviced Loans for which such
escrow, reserve or other comparable account may be held by a Subservicer),
together with an amount equal to all collections on the Mortgage Assets
received prior to the Closing Date that represent scheduled payments of
principal and interest due and principal prepayments received after the
Cut-off Date.
(b) In connection with such transfer and assignment, the Purchaser
hereby directs the Seller to, and the Seller hereby agrees to, deliver to, and
deposit with, the Trustee (or a custodian appointed thereby (a "Custodian"))
the documents and/or instruments described on Exhibit A hereto with respect to
each Mortgage Loan (collectively as to each Mortgage Loan, the "Mortgage
File"); provided that if, as to any Mortgage Loan, the related lender's title
insurance policy has not yet been issued, the Seller agrees that its delivery
obligation shall be deemed to be satisfied as to such missing title insurance
policy, and such missing title insurance policy shall be deemed to have been
included in the related Mortgage File, so long as (i) the Seller delivers to
the Trustee on or before the Closing Date a commitment for title insurance
"marked-up" at the closing of such Mortgage Loan, (ii) the Seller delivers to
the Trustee, promptly following the receipt thereof, the original related
lender's title insurance policy (or a copy thereof), and (iii) as of the date
that is 180 days following the Closing Date, the Seller has delivered to the
Trustee the original related lender's title insurance policy. In addition, the
Purchaser hereby directs the Seller to, and the Seller hereby agrees to,
deliver to, and
M-3-3
<PAGE>
deposit with, the Master Servicer all of the documents and other items
referred to in Section 2.01(f) of the Pooling and Servicing Agreement with
respect to the Mortgage Loans (collectively as to each Mortgage Loan, the
"Servicing File"), together with any and all unapplied escrows and reserves in
respect of the Mortgage Loans (except with respect to the Subserviced Loans
for which such unapplied escrows or reserves may be held by a Subservicer).
If the Seller cannot deliver on the Closing Date any original or
certified recorded document or original policy of title insurance described on
Exhibit A solely because the Seller is delayed in making such delivery by
reason of the fact that such original or certified recorded document has not
been returned by the appropriate recording office or such original policy of
title insurance has not yet been issued, then the Seller shall notify the
Purchaser, the Trustee and, if applicable, the Custodian in writing of such
delay and shall deliver such documents to the Trustee or Custodian, as the
case may be, promptly upon the Seller's receipt thereof.
3. Representations and Warranties of the Seller.
(a) The Seller hereby makes, as of the Closing Date, to and for the
benefit of the Purchaser and its successors and assigns (including, without
limitation, the Trustee for the benefit of the Certificateholders), each of
the representations and warranties set forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser and its successors and
assigns (including, without limitation, the Trustee for the benefit of the
Certificateholders), each of the representations and warranties set forth in
Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing
Date, to and for the benefit of the Purchaser only, that the Seller has not
dealt with any broker, investment banker, agent or other person (other than
the Purchaser and the Underwriters) who may be entitled to any commission or
compensation in connection with the sale to the Purchaser of the Mortgage
Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and
for the benefit of the Purchaser and its successors and assigns (including,
without limitation, the Trustee for the benefit of the Certificateholders), as
of the date of substitution (and as of no other date, notwithstanding any
other date set forth in Exhibit B and Exhibit C attached hereto), with respect
to any replacement mortgage loan (a "Replacement Mortgage Loan") that is
substituted for a Defective Mortgage Loan (as defined in Section 4(a) hereof)
each of the representations and warranties set forth in Exhibit B and Exhibit
C. From and after the date of substitution, each Replacement Mortgage Loan, if
any, shall be deemed to constitute a "Mortgage Loan" hereunder for all
purposes.
3a. Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Seller, as of the date hereof (or such
other date as is specified in the related representation or warranty), as
follows:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with full
corporate power and authority to enter into this
M-3-4
<PAGE>
Agreement, and the Purchaser has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it, and has the power
and authority to execute, deliver and perform this Agreement and all the
transactions contemplated hereby;
(b) This Agreement has been duly authorized, executed and delivered
by the Purchaser and constitutes a valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except as such enforcement may be limited by bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
4. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within 90 days of the earlier of discovery or receipt of notice
by the Seller that there has been a breach of any of the representations and
warranties set forth in Exhibit B or Exhibit C and made by the Seller pursuant
to Section 3(a), Section 3(b) or Section 3(d), as the case may be, which
breach materially and adversely affects the value of any Mortgage Loan or the
interests of the legal and/or beneficial owner(s) thereof (any such breach, a
"Material Breach"), the Seller shall (i) cure such Material Breach in all
material respects or (ii) repurchase each affected Mortgage Loan (each, a
"Defective Mortgage Loan") at the related Purchase Price (as defined in the
Pooling and Servicing Agreement as in effect on the Closing Date, but without
effect to any amendment thereto unless approved in writing by the Seller) in
accordance with the directions of the owner(s) of such Defective Mortgage
Loan(s); provided that if (i) such Material Breach does not relate to whether
the Defective Mortgage Loan was, as of the Closing Date, a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (a "Qualified
Mortgage"), (ii) such Material Breach is capable of being cured but not within
such 90-day period, (iii) the Seller has commenced and is diligently
proceeding with the cure of such Material Breach within such 90-day period,
and (iv) the Seller shall have delivered to the owner(s) of the Defective
Mortgage Loan a certification executed on behalf of the Seller by an officer
thereof setting forth the reason that such Material Breach is not capable of
being cured within the initial 90-day period and what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Material Breach will be cured within an additional
period not to exceed 90 more days, then the Seller shall have an additional 90
days to complete such cure or, failing such, to repurchase such Mortgage Loan;
and provided, further, that if the Seller's obligation to repurchase any
Defective Mortgage Loan as a result of a Material Breach arises within the
three-month period commencing on the Closing Date (or, with respect to the
Shadowbrook Apartments REMIC Regular Interest and the Shadowbrook Apartments
REMIC Residual Interest, commencing on the startup date indicated in the REMIC
Declaration) (or within the two-year period commencing on the Closing Date
(or, with respect to the Shadowbrook Apartments REMIC Regular Interest and the
Shadowbrook Apartments REMIC Residual Interest, commencing on the startup date
indicated in the REMIC Declaration) if the Defective Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G-2(f)), the Seller may, at its
option, in lieu of repurchasing such Defective Mortgage Loan (but, in any
event, no later than such repurchase would have to have been completed), (a)
replace such Defective Mortgage Loan with one or more substitute mortgage
loans that individually and collectively satisfy the requirements of the
definition of "Qualifying Substitute Mortgage Loan" set forth in the Pooling
and Servicing Agreement, and (b) pay any corresponding
M-3-5
<PAGE>
Substitution Shortfall Amount, such substitution and payment to be effected in
accordance with the terms of the Pooling and Servicing Agreement (or, if the
Defective Mortgage Loan is no longer subject thereto, in accordance with the
reasonable instructions of the owner(s) thereof). Any such repurchase or
replacement of a Defective Mortgage Loan shall be on a whole loan, servicing
released basis (subject to the continuing rights of the Subservicers and
Archon with respect to Subserviced Loans). The Seller shall have no obligation
to monitor the Mortgage Loans regarding the existence of a Material Breach,
but if the Seller discovers a Material Breach with respect to a Mortgage Loan,
it will notify the Purchaser.
(b) Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan as contemplated by Section 4(a), the Seller (i) shall
deliver the related Mortgage File for each such substitute mortgage loan to
the owner(s) of the Defective Mortgage Loan, (ii) certify that such substitute
mortgage loan satisfies or such substitute mortgage loans satisfy, as the case
may be, all of the requirements of the definition of "Qualifying Substitute
Mortgage Loan" set forth in the Pooling and Servicing Agreement and (iii) send
such certification to such owner(s). No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4 if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan. Monthly
Payments due with respect to each Replacement Mortgage Loan (if any) after the
related date of substitution, and Monthly Payments due with respect to each
Defective Mortgage Loan (if any) after the Cut-off Date and on or prior to the
related date of repurchase or substitution, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or substitution, shall
belong to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the owner(s) of such Defective Mortgage
Loan.
Except as set forth in Section 8, it is understood and agreed that
the obligations of the Seller set forth in this Section 4 to cure a Material
Breach or repurchase or replace the related Defective Mortgage Loan(s),
constitute the sole remedies available to the Purchaser or any assignee
respecting a breach of the representations and warranties set forth on
Exhibits B and C and made by the Seller pursuant to Sections 3(a), 3(b) and
3(d), respectively.
(c) It shall be a condition to any repurchase of or substitution for
a Defective Mortgage Loan by the Seller pursuant to Section 4(a) that the
Trustee as assignee of the Purchaser shall have executed and delivered such
instruments of transfer or assignment then presented to it by the Seller, in
each case without recourse, as shall be necessary to vest in the Seller the
legal and beneficial ownership of such Defective Mortgage Loan (including any
property acquired in respect thereof or proceeds of any insurance policy with
respect thereto), to the extent that such ownership interest was transferred
to the Purchaser hereunder.
M-3-6
<PAGE>
(d) The Seller hereby acknowledges and consents to the assignment by
the Purchaser to the Trustee, as trustee under the Pooling and Servicing
Agreement, for the benefit of the Certificateholders, of (i) the
representations and warranties set forth in Exhibits B and C and made by the
Seller pursuant to Sections 3(a), 3(b) and 3(d), respectively, (ii) the
obligation of the Seller to repurchase or replace a Defective Mortgage Loan in
connection with a Material Breach pursuant to Section 4(a), and (iii) the
obligation of the Seller to deliver certain documentation, funds and other
assets relating to the Mortgage Loans pursuant to Section 2. The Trustee or
its designee may enforce such obligations as provided in Section 11(a) hereof
or as assignee.
5. Closing. The closing of the sale of the Mortgage Assets (the
"Closing") shall be held at the offices of Sidley & Austin, 875 Third Avenue,
New York, New York 10022 at 10:00 a.m., New York City time (or at such other
place and time as may be determined by the Purchaser), on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
made pursuant to Section 3 of this Agreement shall be true
and correct as of the Closing Date;
(ii) All documents specified in Section 6 of this Agreement
(the "Closing Documents"), in such forms as are agreed upon
and acceptable to the Purchaser, shall be duly executed and
delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee or a Custodian and to the Master Servicer,
respectively, all documents, funds and other assets required
to be delivered thereto pursuant to Section 2 of this
Agreement;
(iv) All other terms and conditions of this Agreement
required to be complied with on or before the Closing Date
shall have been complied with, and the Seller shall have the
ability to comply with all terms and conditions and perform
all duties and obligations required to be complied with or
performed after the Closing Date; and
(v) The Seller shall have paid all fees and expenses payable
by it to the Purchaser or otherwise pursuant to this
Agreement.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Assets on the Closing Date.
6. Closing Documents. The Closing Documents shall consist of
the following:
(i) This Agreement duly executed by the Purchaser and the
Seller;
(ii) An Officer's Certificate substantially in the form of
Exhibit D-1 hereto, executed by an executive officer of the
Seller, in his or her individual capacity, and
M-3-7
<PAGE>
dated the Closing Date, and upon which the Purchaser, DLJSC,
Goldman Sachs, GECA, the Trustee and the Certificateholders
(collectively, for purposes of this Section 6, the
"Interested Parties") may rely, attaching thereto as
exhibits (A) the resolutions of Goldman Sachs Real Estate
Funding Corp., a New York corporation, the general partner
(the "General Partner") of the Seller authorizing the
Seller's entering into the transactions contemplated by this
Agreement and (B) the partnership agreement of the Seller;
(iii) A certificate of good standing of (i) the Seller
issued by the Secretary of State of the State of New York
and (ii) the General Partner of the Seller issued by the
Secretary of State of the State of New York, in each case
not earlier than 10 days prior to the Closing Date, and upon
which the Interested Parties may rely;
(iv) A Certificate of the Seller substantially in the form
of Exhibit D-2 hereto, executed by an executive officer of
the General Partner of the Seller and dated the Closing
Date, and upon which the Interested Parties may rely;
(v) One or more written opinions of counsel for the Seller,
substantially in the form of Exhibit D-3 hereto, with any
modifications required by any rating agency (each, a "Rating
Agency") identified in the Prospectus Supplement or the
Memorandum (each as defined in Section 8), dated the Closing
Date and addressed to the Purchaser, DLJSC, Goldman Sachs,
the Trustee and, if requested thereby, each Rating Agency,
together with such other written opinions as may be required
by any Rating Agency;
(vi) A declaration with respect to each election made prior
to the Closing Date by the Seller to treat a Mortgage Loan
or group of Mortgage Loans as a real estate mortgage
investment conduit ("REMIC") for purposes of the Internal
Revenue Code of 1986, as amended (the "Code"), and a written
opinion of counsel for the Seller, addressed to the
Interested Parties and the Rating Agencies, to the effect
that, assuming the election required by Section 860D(b) of
the Code is properly made, each such Mortgage Loan or group
of Mortgage Loans will qualify for treatment for federal
income tax purposes as a REMIC;
(vii) A guaranty of payment delivered by The Goldman Sachs
Group, Inc. agreeing to guarantee the payment obligations of
the Seller arising out of or under Section 8 hereof (only as
it relates to the indemnity obligations of the Seller in
Section 8(a) and the corresponding contribution obligations
of the Seller in Section 8(c)); and
(viii) Such further certificates, opinions and documents as
the Purchaser may reasonably request.
7. Costs. All expenses incidental to the performance of this
Agreement shall be paid and allocated in accordance with the Term Sheet for
the Joint Conduit Securitization entered into between
M-3-8
<PAGE>
Donaldson, Lufkin & Jenrette Securities Corporation, GE Capital Access, Inc.
and Goldman Sachs Mortgage Company.
8. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser,
DLJSC, Goldman Sachs, GE Capital Access, Inc. ("GECA"), their respective
officers and directors, and each person, if any, who controls the Purchaser,
DLJSC, GECA or Goldman Sachs within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (the Purchaser, DLJSC, Goldman Sachs, GECA, their
respective officers and directors and any such controlling persons,
collectively, for purposes of this Section 8, the "Indemnified Parties"),
against any and all losses, claims, damages, liabilities, costs and expenses,
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities, costs or expenses (or actions in respect thereof) (i)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in (A) the Prospectus Supplement
(including, without limitation, Exhibit A-1 and Exhibit A-2 thereto and the
Diskette) or any preliminary version thereof (any such preliminary version,
the "Preliminary Prospectus Supplement"), the Memorandum (including, without
limitation, the Prospectus Supplement as attached as Exhibit A thereto) or,
insofar as they are required to be filed as part of the Registration Statement
pursuant to the No-Action Letters, any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates, or in any revision or
amendment of or supplement to any of the foregoing documents, or (B) any items
similar to Computational Materials and/or ABS Term Sheets forwarded to
prospective investors in the Non-Registered Certificates, or (ii) arise out of
or are based upon the omission or alleged omission (in the case of an omission
or alleged omission in the ABS Term Sheets and the Computational Materials
when read in conjunction with the Prospectus, in the case of an omission or
alleged omission in items similar to Computational Materials and ABS Term
Sheets furnished to prospective investors in the NonRegistered Certificates,
when read in conjunction with the Memorandum and, in the case of an omission
or alleged omission in the Memorandum, when read together with other
information made available for review by investors in the Non-Registered
Certificates) to state in any of the printed materials described in the
immediately preceding clause (i) (collectively, the "Disclosure Documents") a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; but, in the case of clauses (i) and (ii), only if and to
the extent that such untrue statement or alleged untrue statement or omission
or alleged omission (I) arises out of or is based upon an untrue statement or
omission with respect to the information regarding the Mortgage Loans, the
related Borrowers or the related Mortgaged Properties contained in the Master
Tape (it being acknowledged that the Master Tape was used to prepare the
Prospectus Supplement (including, without limitation, Exhibit A-1 and Exhibit
A-2 thereto and the Diskette) and any preliminary version thereof, the
Memorandum, the Computational Materials and ABS Term Sheets with respect to
the Registered Certificates and any items similar to Computational Materials
and/or ABS Term Sheets forwarded to prospective investors in the NonRegistered
Certificates), (II) arises out of an untrue statement or alleged untrue
statement or omission or alleged omission made in any of the Disclosure
Documents in reliance upon and in conformity with any other information
concerning the characteristics of the Mortgage Loans, the related Borrowers
M-3-9
<PAGE>
or the related Mortgage Properties furnished to the Company or the
Underwriters by the Seller, (III) is contained in the information regarding
the Mortgage Loans, the related Borrowers, the related Mortgaged Properties or
the Seller set forth in the Prospectus Supplement, any preliminary version
thereof, and the Memorandum under the headings "Summary of Prospectus
Supplement--The Mortgage Loans and the Mortgaged Properties", "Risk Factors"
and "Description of the Mortgage Pool" or on Exhibit A-1 to the Prospectus
Supplement or on the Diskette, provided that the foregoing were provided to
the Seller for its review, or (IV) arises out of or is based upon a breach of
the representations and warranties of the Seller set forth in or made pursuant
to Section 3 (such representations and warranties, together with the
information described in the preceding clauses (I), (II) and (III), the
"Seller Information"); provided that the indemnification provided by this
Section 8 shall not apply to the extent that such untrue statement or omission
was made as a result of an error in (x) the manipulation of, or (y) any
calculations based upon, or (z) any aggregation (other than an aggregation
made in the Master Tape by the Seller) of, the information regarding the
Mortgage Loans, the related Borrowers, the related Mortgaged Properties or the
Seller, including without limitation the aggregation of such information with
comparable information relating to the Other Loans, and provided, further,
that the provisions of this Section 8 shall not apply for the purposes of
indemnifying or holding harmless any Indemnified Party for any liability
(through an obligation to indemnify or otherwise) that such parties might have
to the Other Loan Sellers. Notwithstanding the foregoing, the indemnity
provided for in the preceding sentence with respect to any loss, claim,
damage, liability, cost or expense referred to therein and arising out of or
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus Supplement, any
Computational Materials or ABS Term Sheets with respect to the Registered
Certificates or any items similar to Computational Materials or ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates,
or any revision or amendment of or supplement to any such document, shall not
inure to the benefit of any Underwriter or Initial Non-Registered Certificate
Purchaser (or any officer, director or controlling person in respect thereof)
from whom the person asserting such loss, claim, damage, liability, cost or
expense purchased the Certificates which are the subject thereof if: (i) in
the case of any Preliminary Prospectus Supplement (or any revision or
amendment thereof or supplement thereto), the Underwriter did not deliver to
such person a copy of the Prospectus (or the Prospectus as most recently
amended or supplemented) at or prior to the confirmation of the sale of the
subject Certificates to such person in any case where such delivery is
required by the Securities Act if the Purchaser has previously furnished
copies thereof in sufficient quantity to such Underwriter and the untrue
statement or alleged untrue statement or omission or alleged omission made in
such Preliminary Prospectus was corrected in the Prospectus and such
correction would have cured the defect giving rise to any such liability,
loss, claim, damage, cost or expense; and (ii) in the case of any
Computational Materials or ABS Term Sheets with respect to the Registered
Certificates or any items similar to Computational Materials or ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates
(or any revision or amendment of or supplement to any such document), the
Seller notified such Underwriter or Initial Non-Registered Certificate
Purchaser, as the case may be, in writing of the Collateral Error that gave
rise to the untrue statement or alleged untrue statement or omission or
alleged omission and provided in written or electronic format information
superseding or correcting such Collateral Error prior to the time of
confirmation of sale of the subject Certificates to such person, and such
Underwriter or Initial Non-Registered Certificate Purchaser, as the case may
be, failed to deliver to such person corrected materials (or, if the
superseding or correcting
M-3-10
<PAGE>
information was corrected in the Prospectus or the Memorandum, failed to
deliver to such person the Prospectus or the Memorandum, as the case may be),
at or prior to the confirmation of such sale to such person.
The Seller acknowledges that the Purchaser, DLJSC and Goldman Sachs
will enter into the Underwriting Agreement and the Certificate Purchase
Agreement, and the Purchaser and GECA will enter into a mortgage loan purchase
and sale agreement, in each case in reliance upon this indemnity agreement of
the Seller. This indemnity agreement will be in addition to any liability
which the Seller may otherwise have.
For purposes of this Agreement, "Registration Statement" shall mean
the registration statement No. 333-59167 filed by the Purchaser on Form S-3,
including, without limitation, all exhibits thereto and information
incorporated therein by reference; "Prospectus" shall mean the prospectus
dated June 3, 1999, as supplemented by the prospectus supplement dated June
11, 1999 (the "Prospectus Supplement"), relating to the Registered
Certificates, including, without limitation, all annexes and exhibits thereto
and the Diskette; "Memorandum" shall mean the private placement memorandum
dated June 11, 1999, relating to certain classes of the Non-Registered
Certificates, including, without limitation, all annexes and exhibits thereto;
"Computational Materials" shall have the meaning assigned thereto in the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to
Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated,
and Kidder Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Kidder Letters"); "ABS Term
Sheets" shall have the meaning assigned thereto in the no-action letter dated
February 17, 1995 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (the "PSA Letter" and,
together with the Kidder Letters, the "No-Action Letters"); "Diskette" shall
mean the diskette attached to the Prospectus Supplement, any preliminary
version thereof and the Memorandum; and "Master Tape" shall mean the
compilation of underlying information and data regarding the Mortgage Loans
covered by the Independent Accountants Report on Applying Agreed Upon
Procedures dated June 3, 1999, as supplemented to the Closing Date, and
rendered by Arthur Andersen LLP; and "Collateral Error" shall mean any error
in the information regarding the Seller, the Mortgage Loans, the related
Mortgage Properties or the related Borrowers contained in the Master Tape or
any other information supplied by the Seller directly to the Purchaser, DLJSC
or Goldman Sachs or any breach of the representations and warranties made by
the Seller in or pursuant to Section 3.
(b) Promptly after receipt by the Indemnified Party of notice of the
commencement of any action, the Indemnified Party will, if a claim in respect
thereof is to be made against the Seller under this Section 8, notify the
Seller in writing of the commencement thereof; but the omission so to notify
the Seller will not relieve it from any liability which it may have to the
Indemnified Party under this Section 8 except to the extent that the
Indemnifying Party has been prejudiced in any material respect, or from any
liability which it may have otherwise than under this Section 8. In case any
such action is brought against any Indemnified Party, and it notifies the
Seller of the commencement thereof, the Seller will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to
the Indemnified Party promptly after receiving the aforesaid notice from the
Indemnified
M-3-11
<PAGE>
Party, to assume the defense thereof, with counsel reasonably satisfactory to
the Indemnified Party; provided, however, that if the defendants in any such
action include both the Indemnified Party and the Seller and the Indemnified
Party shall have reasonably concluded that there may be legal defenses
available to it and/or other Indemnified Parties which are different from or
additional to those available to the Seller, the Indemnified Party or Parties
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
Indemnified Party or parties. Upon receipt of notice from the Seller to such
Indemnified Party of its election so to assume the defense of such action and
approval by the Indemnified Party of counsel as described in the immediately
preceding sentence, the Seller will not be liable to such Indemnified Party
under this Section 8 for any legal or other expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof unless (i) the
Indemnified Party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the Seller shall not be liable
for the expenses of more than one separate counsel), (ii) the Seller shall not
have employed counsel satisfactory to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of commencement of the
action or (iii) the Seller has authorized the employment of counsel for the
Indemnified Party at the expense of the Seller; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). Unless it shall assume the defense of
any proceeding, the Seller shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Seller agrees
to indemnify the Indemnified Party from and against any loss or liability by
reason of such settlement or judgment. The Seller shall not, without the prior
written consent of the Indemnified Parties, settle any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 8 (whether or not the
Indemnified Parties are actual or potential parties thereto), unless such
settlement (i) includes an unconditional release of each Indemnified Party
from all liability arising out of such litigation, investigation, proceeding
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Party.
(c) If the indemnification provided for in Section 8(a) is
unavailable to an Indemnified Party or insufficient to hold it harmless in
respect of any losses, claims, damages, liabilities, costs or expenses
referred to in and intended to be covered under this Section 8, then the
Seller shall contribute to the amount paid or payable by such Indemnified
Party as a result of such losses, claims, damages, liabilities, costs or
expenses, in such proportion as is appropriate to reflect the relative fault
of the Seller on the one hand and the Indemnified Party on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Indemnified Party and the Seller
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Seller on the one hand and the Indemnified Party on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. Notwithstanding any other
provision to the contrary, the Seller's contribution obligations provided by
this Section 8(c) shall not apply to the extent that any such loss, claim,
damage, liability, cost or expense resulted from, or arose out of, any error
in (x) the manipulation of,
M-3-12
<PAGE>
or (y) any calculations based upon, or (z) any aggregation (other than an
aggregation made in the Master Tape by the Seller) of, the information
regarding the Mortgage Loans, the related Borrowers, the related Mortgaged
Properties or the Seller, including without limitation the aggregation of such
information with comparable information relating to the Other Loans, and,
further, the Seller's contribution obligations provided by this Section 8(c)
shall not apply for the purposes of providing contribution to any of the
Purchaser, DLJSC, GECA or Goldman Sachs for any liability (through an
obligation to indemnify or otherwise) that such parties might have to the
Other Loan Sellers.
(d) The parties hereto agree that it would not be just and equitable
if contribution pursuant to subsection (c) above were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in subsection (c) above. The amount
paid or payable by an Indemnified Party as a result of the losses, claims,
damages, liabilities, costs or expenses referred to above shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim (except where the
Indemnified Party is required to bear such expenses pursuant to this Section
8), which expenses the Seller shall pay as and when incurred, at the request
of the Indemnified Party, and to the extent that the Seller will be ultimately
obligated to pay such expenses. If and to the extent that any expenses so paid
by the Seller are subsequently determined to not be required to be borne by
the Seller hereunder, the Indemnified Party which received such payment shall
promptly refund the amount so paid to the Seller. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 8 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any of the Indemnified Parties, and (iii) acceptance of and payment
for the Mortgage Assets.
9. Notices. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Purchaser, will be sent by
regular prepaid U.S. Mail or prepaid reputable overnight courier or delivered
by hand and confirmed to it at 277 Park Avenue, 9th Floor, New York, New York
10172, Attention: N. Dante LaRocca, or such other address as may be designated
by the Purchaser to the Seller in writing, or, if sent to the Seller, will be
sent by regular prepaid U.S. Mail or prepaid reliable overnight courier or
delivered by hand and confirmed to it at 85 Broad Street, New York, New York
10004, Attention: Jay Strauss, or such other address as may be designated by
the Seller to the Purchaser in writing.
10. Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or
termination is sought. This Agreement may not be changed in any manner which
would have a material adverse effect on Holders of the Certificates without
the prior written consent of the Trustee. This Agreement also may not be
changed in any manner which would have a material adverse effect on any other
third party beneficiary hereof without the prior written consent of that
person. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which
shall together constitute but
M-3-13
<PAGE>
one and the same instrument. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and
assigns, and no other person will have any right or obligation hereunder,
other than as provided in Section 11 hereof.
11. Third Party Beneficiaries.
(a) The Trustee and the Certificateholders are intended third party
beneficiaries of the representations, warranties and covenants made by the
Seller in Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and, to the extent relevant
to the foregoing, in Sections 9, 10, 13, 14, 15, 16, and 17) of this
Agreement. It is acknowledged that such representations, warranties and
covenants of the Seller may be enforced by the Trustee against the Seller, on
behalf of itself and the Certificateholders, to the same extent as if they
were parties hereto.
(b) Each of DLJSC and Goldman Sachs is an intended third party
beneficiary of the representations, warranties and covenants of the Seller set
forth in Sections 3(a), 5, 6, and 8 (and, to the extent relevant to the
foregoing, in Sections 10, 13, 14, 15, 16 and 17) of this Agreement. It is
acknowledged and agreed that such representations, warranties and covenants
may be enforced by or on behalf of either DLJSC or Goldman Sachs against the
Seller to the same extent as if it was a party hereto.
(c) GECA and each of the officers, directors and controlling persons
of each of the Purchaser, DLJSC, Goldman Sachs and GECA referred to in
Sections 8 hereof is an intended third party beneficiary of the
representations, warranties, covenants and indemnities of the Seller set forth
in Sections 8 (and, to the extent relevant to the foregoing, in Sections 10,
13, 14, 15, 16 and 17) of this Agreement. It is acknowledged and agreed that
such representations, warranties, covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same
extent as if such person or entity was a party hereto.
12. Characterization. It is the express intent of the parties hereto
that the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and
interest in and to the Mortgage Assets. Furthermore, it is not the intention
of the parties that such conveyance be deemed a pledge of the Mortgage Assets
by the Seller to secure a debt or other obligation of the Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Assets
are held to continue to be property of the Seller then: (a) this Agreement
shall also be deemed to be a security agreement under applicable law; (b) the
transfer of the Mortgage Assets provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a first priority security interest in
all of the Seller's right, title and interest in and to the Mortgage Assets
and all amounts payable to the holder(s) of the Mortgage Assets in accordance
with the terms thereof (other than scheduled payments of interest and
principal due on or before the Cut-off Date) and all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property; (c) the assignments by the Purchaser to the
Trustee of its interests in the Mortgage Assets as contemplated by Section
4(d) hereof shall be deemed to be an assignment of any security interest
created hereunder; (d) the possession by the Purchaser or any successor
thereto of the related Mortgage Notes and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for
M-3-14
<PAGE>
purposes of perfecting the security interest pursuant to Section 9-305 of the
New York Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction; and (e) notifications to, and acknowledgments,
receipts or confirmations from, persons or entities holding such property,
shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Purchaser or any successor thereto for the purpose of
perfecting such security interest under applicable law. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Assets, such security interest
would be deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers
of the Seller delivered pursuant hereto, shall remain operative and in full
force and effect and shall survive delivery of the Mortgage Assets by the
Seller to the Purchaser (and by the Purchaser to the Trustee), notwithstanding
any restrictive or qualified endorsement or assignment in respect of any
Mortgage Loan.
14. Severability of Provisions. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or is held to be
void or unenforceable shall be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof. Any
part, provision, representation, warranty or covenant of this Agreement that
is prohibited or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be inef fective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable
law, the parties hereto waive any provision of law which prohibits or renders
void or unenforceable any provision hereof.
15. Governing Law; Consent to Jurisdiction. This Agreement will be
governed by and construed in accordance with the substantive laws of the State
of New York, applicable to agreements made and to be performed entirely in
said state. To the fullest extent permitted under applicable law, the Seller
hereby irrevocably (i) submits to the jurisdiction of any New York State and
federal courts sitting in New York City with respect to matters arising out of
or relating to this Agreement; (ii) agrees that all claims with respect to
such action or proceeding may be heard and determined in such New York State
or federal courts; (iii) waives, to the fullest possible extent, the defense
of an inconvenient forum; and (iv) agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
16. Further Assurances. The Seller and the Purchaser agree to execute
and deliver such instruments and take such further actions as the other party
may, from time to time, reasonably request in order to effectuate the purposes
and to carry out the terms of this Agreement.
M-3-15
<PAGE>
17. Successors and Assigns. The rights and obligations of the Seller
under this Agreement shall not be assigned by the Seller, as the case may be,
without the prior written consent of the Purchaser, except that any person
into which the Seller, as the case may be, may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to
which the Seller, as the case may be, is a party, or any person succeeding to
all or substantially all of the business of the Seller, shall be the successor
to the Seller, as the case may be, hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as contemplated
by Section 4(d) or as may otherwise be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
18. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Assets and the Seller's
underwriting and servicing procedures as is (i) customary in commercial
mortgage loan securitization transactions, (ii) required by a Rating Agency or
a governmental agency or body or (iii) reasonably requested by the Purchaser
for use in a public or private disclosure document.
[SIGNATURE PAGE FOLLOWS]
M-3-16
<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
GOLDMAN SACHS MORTGAGE COMPANY
By: Goldman Sachs Real Estate Funding Corp.,
its general partner
By: _______________________________________
Name:______________________________________
Title:_____________________________________
DLJ COMMERCIAL MORTGAGE CORP.
By: _______________________________________
Name:______________________________________
Title:_____________________________________
M-3-17
<PAGE>
Exhibit A
Certain Documents to be Delivered by the Seller
with Respect to the Mortgage Loans
The documents and instruments to be delivered to the Trustee (or a
Custodian on behalf of the Trustee) in respect of each Mortgage Loan pursuant
to Section 2(a) of this Agreement are as follows:
(i) the original executed Mortgage Note, endorsed (either on the
face thereof or pursuant to a separate allonge) "Pay to the
order of Norwest Bank Minnesota, National Association, as
trustee for the registered holders of DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999- CG2, without recourse";
(ii) an original or a copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to
in clause (iv) below, in each case (unless such document has
not yet been returned from the applicable recording office)
with evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and
of any intervening assignments thereof that precede the
assignment referred to in clause (v) below, in each case
(unless such document has not yet been returned from the
applicable recording office) with evidence of recording
indicated thereon;
(iv) an original executed assignment of the Mortgage, in favor of
Norwest Bank Minnesota, National Association, as trustee for
the registered holders of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series
1999-CG2, in recordable form;
(v) an original executed assignment of any related Assignment of
Leases (if such item is a document separate from the
Mortgage), in favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999- CG2, in recordable form;
(vi) originals or copies of any written assumption, modification,
written assurance and substitution agreements in those
instances where the terms or provisions of the Mortgage or
Mortgage Note have been modified or the Mortgage Loan has
been assumed;
(vii) the original or a copy of the policy of lender's title
insurance;
(viii) filed copies of any prior UCC Financing Statements in favor
of the originator of such Mortgage Loan or in favor of any
assignee prior to the Trustee (but only to the extent the
Seller had possession of such UCC Financing Statements prior
to the Closing Date) and, if there is an effective UCC
Financing Statement in favor of
<PAGE>
the Seller on record with the applicable public office for
UCC Financing Statements, an original UCC-2 or UCC-3, as
appropriate, in favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2;
(ix) any environmental indemnity agreement, power of attorney,
guaranty, property management agreement, Ground Lease,
intercreditor agreement, cash management agreement and
lock-box agreement, relating to such Mortgage Loan;
(x) any original documents (including any security agreements
and any Letters of Credit and related letter of credit
reimbursement agreements) relating to, evidencing or
constituting Additional Collateral;
(xi) any insurance certificates relating to hazard insurance
policies maintained by the Borrower with respect to the
related Mortgaged Property that are in the possession of the
Seller; and
(xii) with respect to any Mortgage Loan for which the Seller has
executed a REMIC declaration, a copy of such declaration
with respect thereto.
2
<PAGE>
Exhibit B
Representations and Warranties with respect to the Seller
The Seller hereby represents and warrants that, as of the Closing
Date:
(a) The Seller is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of New York, and is
possessed of all licenses necessary to carry on its business and is qualified
and in good standing and in compliance with the laws of each State in which
any Mortgaged Property securing a Mortgage Loan is located to the extent
necessary to ensure the enforceability of such Mortgage Loan as contemplated
by the terms of this Agreement and the Pooling and Servicing Agreement.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine signature)
and delivery of any and all documents contemplated by this Agreement,
including, without limitation, endorsements of Mortgage Notes, and the
performance and compliance by the Seller with the terms of this Agreement will
not (i) violate the Seller's organizational documents, (ii) violate any law or
regulation or any administrative decree or order to which the Seller is
subject or (iii) constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the breach
of, any indenture, agreement or other instrument to which the Seller is a
party or by which it is bound or which is applicable to it or any of its
assets.
(c) The Seller has full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(d) The Seller has the full right, power and authority to sell,
assign, transfer, set over and convey the Mortgage Loans (and, in the event
that the related transaction is deemed to constitute a loan secured by all or
part of the Mortgage Loans, to pledge the Mortgage Loans) in accordance with,
and under the conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law, and (iii)
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws.
<PAGE>
(f) The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms hereof
will not constitute a violation of, any law, any order or decree of any court
or arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Seller's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(g) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which, if determined adversely to the
Seller, would prohibit the Seller from entering into this Agreement or, in the
Seller's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Seller to perform its obligations
hereunder or the financial condition of the Seller.
(h) The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in
effect in any applicable jurisdiction.
(i) The principal place of business and chief executive office of the
Seller is located in New York, New York.
2
<PAGE>
Exhibit C
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Exhibit C, the phrase "the Seller's knowledge"
and other words and phrases of like import shall mean the actual state of
knowledge of the Seller regarding the matters referred to, in each case
without having conducted any independent inquiry into such matters and without
any obligation to have done so (except as expressly set forth herein).
The Seller hereby represents and warrants that, as of the date
hereinbelow specified or, if no such date is specified, as of the Closing Date
and subject to the exceptions listed on Exhibit C- 1 attached to this
Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of the Pooling and Servicing Agreement) and
correct in all material respects as of the date of this Agreement and as of
the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer to
the Purchaser of the Mortgage Loans, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests and/or other encumbrances. Upon completion of the conveyance
contemplated hereby, the Seller will have validly and effectively conveyed to
the Trustee all legal and beneficial interest in and to such Mortgage Loan
free and clear of any pledge, lien or security interest created by or through
the Seller. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval
or consent that has not been obtained.
3. Payment Record. As of the Closing Date, no scheduled payment of
principal and interest under any Mortgage Loan was 30 days or more past due,
and no Mortgage Loan has been 30 days or more delinquent in the twelve-month
period immediately preceding the Closing Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien
upon the related Mortgaged Property, prior to all other liens and
encumbrances, except for (a) the lien for current real estate taxes and
assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a proforma title policy or a
"marked-up" commitment), none of which materially interferes with the security
intended to be provided by such Mortgage, the current use of the related
Mortgaged Property or the current ability of the related Mortgaged Property to
generate income sufficient to service the related Mortgage Loan, (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or such proforma title policy or "marked-up" commitment),
none of which materially interferes with the security
<PAGE>
intended to be provided by such Mortgage, the current use of the related
Mortgaged Property or the current ability of the related Mortgaged Property to
generate income sufficient to service the related Mortgage Loan, (d) other
matters to which like properties are commonly subject, none of which
materially interferes with the security intended to be provided by such
Mortgage, the use of the related Mortgaged Property or the current ability of
the related Mortgaged Property to generate income sufficient to service the
related Mortgage Loan, (e) the rights of tenants to remain (whether under
ground leases or space leases) at the Mortgaged Property following a
foreclosure or similar proceeding (provided that such tenants are performing
under such leases) and (f) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group (the foregoing
items (a) through (f) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid
and binding assignment, thereof from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below and the Permitted Encumbrances, enforceable first priority
lien on and security interest in the property and rights described therein;
and each assignor thereunder has the full right to assign the same. The
related assignment of such Assignment of Leases executed and delivered in
favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment thereof from the relevant assignor to the Trustee. To the
Seller's knowledge, no person owns any interest in any payments due under the
related leases that is superior to the lien created by such Assignment of
Leases, if any.
6. Mortgage Status; Waivers and Modifications. No Mortgage related to
a Mortgage Loan has been satisfied, canceled, rescinded or subordinated in
whole or in material part, and the related Mortgaged Property has not been
released from the lien of such Mortgage, in whole or in material part, nor has
any instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases related to a Mortgage Loan
have been impaired, waived, altered or modified in any material respect,
except by written instruments, all of which are included in the related
Mortgage File.
7. Condition of Property; Condemnation. Each Mortgaged Property
securing a Mortgage Loan is, to the Seller's knowledge, based on its review of
the most recent inspection report (which, if prepared by a servicer of such
Mortgage Loan, was so prepared in accordance with the related servicing
agreement), free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan (except in such case where
an escrow of funds exists sufficient to effect the necessary repairs and
maintenance). The Seller has not received notice (and is not otherwise aware)
of any proceeding pending for the total or partial condemnation of or
affecting the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge, as of the date of the origination of each Mortgage Loan, all of the
material improvements on the related Mortgaged Property lay wholly within the
boundaries and, to the extent in effect at the time of construction, building
restriction lines of such property, except for
2
<PAGE>
encroachments that are insured against by the lender's title insurance policy
referred to herein or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, and no improvements on adjoining
properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") in the original principal
amount of such Mortgage Loan after all advances of principal insuring that the
related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to the exceptions stated therein (or a pro forma title policy or
marked up title insurance commitment on which the required premium has been
paid exists which evidences that such Title Policy will be issued). Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby)
is in full force and effect, all premiums thereon have been paid and, to the
Seller's knowledge, no material claims have been made thereunder and no claims
have been paid thereunder (and the Seller has not received notice of any
material claims having been made or paid thereunder). No holder of the related
Mortgage has done, by act or omission, anything that would materially impair
the coverage under such Title Policy. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee, such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) will inure to
the benefit of the Trustee without the consent of or notice to the insurer.
The insurer issuing such Title Policy is qualified to do business in the
jurisdiction in which the related Mortgaged Property is located, and such
Title Policy contains no exclusion for, or it affirmatively insures, (a)
access to a public road, (b) that there are no material encroachments of any
part of the improvements on the related Mortgaged Property over easements,
which encroachments could reasonably be expected to materially interfere with
the use of the related Mortgaged Property (unless the related Mortgaged
Property is located in a jurisdiction where such affirmative insurance is not
available) and (c) either (i) that the area shown on the survey conducted in
connection with the origination of the related Mortgage Loan or (ii) that the
legal description of the Mortgaged Property described in the Title Policy is
the same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan
has been made but a portion thereof is being held back pending the
satisfaction of certain conditions relating to leasing, repairs or other
matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in Paragraph 13
below) such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property
of the principal benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage in respect of any
Mortgage Loan is a deed of trust, (a) a trustee, duly qualified under
applicable law to serve as such, is properly
3
<PAGE>
designated and serving under such Mortgage, and (b) except in connection with
a trustee's sale after default by the related Borrower, no fees or expenses
are payable to such trustee by the Seller, the Purchaser or any transferee
thereof.
12. Environmental Conditions. An environmental site assessment was
performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and either (x) no
such Environmental Report reveals any known circumstances or conditions with
respect to the related Mortgaged Property that rendered such Mortgaged
Property, at the date of such Environmental Report, in material violation of
any applicable environmental laws or (y) if any such Environmental Report does
reveal any such circumstances or conditions with respect to the related
Mortgaged Property and the same have not been subsequently remediated in all
material respects, then either (i) the expenditure of funds necessary to
effect such remediation is not material in relation to the outstanding
principal balance of the related Mortgage Loan, or (ii) a sufficient escrow of
funds exists for purposes of effecting such remediation, or (iii) the related
Borrower or other responsible party is currently taking such actions, if any,
with respect to such circumstances or conditions as have been required by the
applicable governmental regulatory authority, or (iv) the related Mortgaged
Property is insured under a policy of insurance, subject to certain per
occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions. To the Seller's knowledge,
there are no circumstances or conditions with respect to such Mortgaged
Property not revealed in such Environmental Report that render such Mortgaged
Property in material violation of any applicable environmental laws. The
Mortgage encumbering each Mortgaged Property requires the related Borrower to
comply with all applicable federal, state and local environmental laws and
regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower with respect to
each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law), and there
is no valid defense, counterclaim or right of offset or rescission available
to the related Borrower with respect to such Mortgage Note, Mortgage or other
agreements.
14. Insurance. Except in certain cases, where tenants (having a net
worth of at least $50,000,000 or an investment grade credit rating) with the
obligation to maintain the insurance described in this paragraph are allowed
to self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured against loss by
hazards of extended coverage in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and
4
<PAGE>
does not permit reduction in insurance proceeds for depreciation. Each
Mortgaged Property securing a Mortgage Loan is the subject of a business
interruption insurance policy providing coverage for at least six (6) months
(or a specified dollar amount which, in the reasonable judgement of the
Seller, will cover no less than six months of rental income). If any portion
of the improvements on a Mortgaged Property securing any Mortgage Loan was, at
the time of the origination of such Mortgage Loan, in an area identified in
the Federal Register by the Flood Emergency Management Agency as having
special flood hazards, and flood insurance was available, a flood insurance
policy meeting any requirements of the then current guidelines of the Federal
Insurance Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least of (1) the
outstanding principal balance of such Mortgage Loan, (2) the full insurable
value of such Mortgaged Property, and (3) the maximum amount of insurance
available under the National Flood Insurance Act of 1968, as amended. All such
hazard and flood insurance policies contain a standard mortgagee clause for
the benefit of the holder of the related Mortgage, its successors and assigns,
as mortgagee, and are not terminable (nor may the amount of coverage provided
thereunder be reduced) without ten (10) days' prior written notice to the
mortgagee and all premiums payable thereon as of the Closing Date, whether
annual or otherwise, have been paid. Each Mortgaged Property securing a
Mortgage Loan is also covered by commercial general liability insurance in an
amount at least equal to $1 million per occurrence. With respect to each
Mortgage Loan, the related Mortgage requires that the related Borrower
maintain insurance as described above or permits the Mortgagee to require
insurance as described above. No notice of termination, cancellation or
reduction has been received by the Seller with respect to any such hazard,
flood or liability insurance policy. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would
not otherwise materially and adversely affect the security intended to be
provided by the related Mortgage, the Mortgage for each Mortgage Loan provides
that proceeds paid under any such casualty insurance policy will (or, at the
lender's option, will) be applied either to the repair or restoration of the
related Mortgaged Property or to the payment of amounts due under such
Mortgage Loan; provided that the related Mortgage may entitle the related
Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property and payment of amounts due under
the Mortgage Loan; and provided further that if the related Borrower holds a
leasehold interest in the related Mortgaged Property, the application of such
proceeds will be subject to the terms of the related Ground Lease (as defined
in Paragraph 18 below).
15. Taxes and Assessments. To the Seller's knowledge, there are no
delinquent taxes or assessments or other outstanding charges affecting any
Mortgaged Property securing a Mortgage Loan which are a lien of priority equal
to or higher than the lien of the related Mortgage that are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties
would be payable thereon.
16. Borrower Bankruptcy. No Borrower under a Mortgage Loan is, to the
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
5
<PAGE>
17. Local Law Compliance. To the Seller's knowledge, based on due
diligence customarily undertaken by prudent commercial mortgage lenders, the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances, or constitute a legal non-conforming use or structure or, if any
such improvement does not so comply or does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property.
18. Leasehold Estate Only. If such Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from the ground lessor, a
"Ground Lease"), but not by the related fee interest in such Mortgaged
Property or such material portion thereof (the "Fee Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage; and there has been no material
change in the terms of such Ground Lease since its recordation, with the
exception of written instruments which are a part of the related Mortgage
File;
(b) Such Ground Lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage, other than the
related Fee Interest and Permitted Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to the
Purchaser and its successors and assigns upon notice to, but without the
consent of, the lessor thereunder (or, if such consent is required, it either
has been obtained or cannot be unreasonably withheld) and in the event that it
is so assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of, such
lessor;
(d) At the date of origination of the Mortgage Loan, such Ground
Lease was in full force and effect, and the Seller has not received as of the
Closing Date actual notice that any material default has occurred under such
Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice
of any default by the lessee to the mortgagee (provided that the mortgagee has
provided the lessor with notice of its lien in accordance with the provisions
of such Ground Lease), and such Ground Lease further provides that no notice
of termination given under such Ground Lease is effective against the
mortgagee unless a copy has been delivered to the mortgagee in the manner
described in such Ground Lease;
(f) Either (i) the related ground lessor has subordinated its
interest in the related Mortgaged Property to the Mortgagee or (ii) the
mortgagee is permitted a reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of the lessee under such
Ground Lease) to cure any default under such Ground Lease, which is curable
after the
6
<PAGE>
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(g) Such Ground Lease has an original term (or an original term
together with options exercisable by the Borrower and the mortgagee without
consent of the lessor) which extends not less than ten (10) years beyond the
Stated Maturity Date of the related Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease for any reason,
including rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds (other than in respect of a
total or substantially total loss or taking) will be applied either (i) to the
repair or restoration of all or part of the related Mortgaged Property, with
the mortgagee or a trustee appointed by it having the right to hold and
disburse such proceeds as the repair or restoration progresses (except in such
cases where a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or (ii) to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued interest
thereon; and
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an uncured default, to disturb
the possession, interest or quiet enjoyment of any lessee in the relevant
portion of the Mortgaged Property subject to such Ground Lease for any reason,
or in any manner, which would materially adversely affect the security
provided by the related Mortgage.
19. Leasehold Estate and Fee Interest. If "Fee/Leasehold" is set
forth opposite the name of the related Mortgaged Property on the Mortgage Loan
Schedule, such Mortgage Loan is secured in whole or in part by the interest of
the related Borrower under a Ground Lease and by the related Fee Interest and:
(a) Such Fee Interest is subject, and subordinated of record, to the
related Mortgage; and the related Mortgage does not by its terms provide that
it will be subordinated to the lien of any other mortgage or other lien upon
such Fee Interest; and
(b) Upon occurrence of a default under the terms of the related
Mortgage by the Borrower, the mortgagee has the right to foreclose upon or
otherwise exercise its rights with respect to such Fee Interest within a
period of time that would not have been viewed, as of the date of origination,
as commercially unreasonable by a prudent commercial mortgage lender.
20. Healthcare Facilities. With respect to any Mortgage Loan which is
secured by a senior housing, nursing home, or other healthcare-related
facility ("Healthcare Facility"), to the best of the Seller's knowledge:
7
<PAGE>
(a) Each Borrower and each Healthcare Facility substantially complies
with all applicable federal, state, commonwealth and local laws, regulations,
quality and safety standards of the applicable state or commonwealth
Department of Health or any similar regulatory agency (each a "DOH") and all
other federal, state, commonwealth or local governmental authorities having
jurisdiction over such Healthcare Facility.
(b) All governmental licenses, permits, regulatory agreements or
other approvals or agreements necessary for the use and operation of each
Healthcare Facility as intended are held by the applicable Borrower or
Healthcare Facility operator or manager (each, a "Healthcare Operator") and
are in full force and effect, including, without limitation, a valid
certificate of need ("CON") or similar certificate, license, or approval
issued by the DOH for the requisite number of beds, and approved provider
status in any approved provider payment program (collectively, the
"Licenses").
(c) Based upon representations and covenants in the related Mortgage
and, where applicable, certificates of government officials, the Licenses,
including, without limitation, the CON:
May not be, without the consent of the mortgagee, and have not been,
transferred to any location other than the Healthcare Facility;
Have not been pledged as collateral security for any loan or indebtedness
other than the Mortgage; and
Are held free from restrictions or known conflicts which would materially
impair the use or operation of the Healthcare Facility as intended, and are
not provisional, probationary or restricted in any way.
(d) So long as the Mortgage remains outstanding, no Borrower or
Healthcare Operator is permitted pursuant to the terms of the Mortgage without
the consent of the holder of the Mortgage to:
(i) rescind, withdraw, revoke, amend, modify, supplement, or
otherwise alter the nature, tenor or scope of the Licenses
for any Healthcare Facility (other than the addition of
services or other matters expanding or improving the scope
of such License);
amend or otherwise change any Healthcare Facility's authorized bed capacity
and/or the number of beds approved by the DOH; or
replace or transfer all or any part of any Healthcare Facility's beds to
another site or location.
(e) Each Healthcare Facility substantially complies with all
requirements for participation in Medicare and Medicaid; and each Healthcare
Facility is in conformance in all material respects with all insurance,
reimbursement and cost reporting requirements, and, if required, has a current
provider agreement which is in full force and effect under Medicare and/or
Medicaid.
(f) There are no threatened or pending revocation, suspension,
termination, probation, restriction, limitation, or nonrenewal affecting any
Borrower, or Healthcare Facility or any
8
<PAGE>
participation or provider agreement with any third-party payor, including
Medicare and Medicaid and any other private commercial insurance managed care
and employee assistance program (such programs, the "Third-Party Payors'
Programs") to which any Borrower presently is subject.
(g) No Borrower in the related Mortgage, no Borrower, Healthcare
Operator or Healthcare Facility is the subject of any proceeding by any
governmental agency, and no notice of any violation has been received from a
governmental agency that would, directly or indirectly, or with the passage of
time:
(i) Have a material adverse impact on any Borrower's ability
to accept and/or retain patients or result in the imposition
of a fine, a sanction, a lower rate certification or a lower
reimbursement rate for services rendered to eligible
patients;
Modify, limit or annul or result in the transfer, suspension, revocation or
imposition of probationary use of any Borrower's Licenses; or
Affect any Borrower's continued participation in the Medicaid or Medicare
programs or any other of the Third-Party Payors' Programs, or any successor
programs thereto, at current rate certifications.
(h) Each Healthcare Facility and the use thereof complies in all
material respects with all applicable health care, nursing facility and other
similar regulatory requirements.
(i) No Healthcare Facility has received a "Substandard Quality of
Care" (or equivalent) violation, and no statement of charges or material
deficiencies has been made or penalty enforcement action has been undertaken
against any Healthcare Facility, Healthcare Operator or Borrower, or against
any officer, director or stockholder of any Healthcare Operator or Borrower by
any governmental agency that is currently pending or, to the Responsible
Party's knowledge received during the last three calendar years, and there
have been no violations over the past three years which have materially
threatened any Healthcare Facility's, any Healthcare Operator's or any
Borrower's certification for participation in Medicare or Medicaid or the
other Third-Party Payors' Programs.
(j) There are no pending or outstanding Medicaid, Medicare or
Third-Party Payors' Programs reimbursement audits or appeals pending at any of
the Healthcare Facilities concerning allegations of fraud or that might have a
material adverse effect on the operations of the Healthcare Facility.
(k) There are no pending Medicaid, Medicare or Third-Party Payors'
Programs proceedings, suits or investigations at any of the Healthcare
Facilities that might have a material adverse effect on the operations of the
Healthcare Facility.
(l) No Borrower has pledged its receivables as collateral security
for any loan or indebtedness other than the related Mortgage which is not
subject to a subordination agreement in connection with the Mortgage Loan.
9
<PAGE>
(m) There are no patient or resident care agreements with patients or
residents or with any other persons which deviate in any material adverse
respect from the standard form customarily used at the Healthcare Facilities.
(n) All patient or resident records at each Healthcare Facility,
including patient or resident trust fund accounts, if any, are true and
correct in all material respects.
(o) If applicable, the Borrower has represented in the related
Mortgage that any existing agreement relating to the management or operation
of any Healthcare Facility with respect to any Healthcare Facility is in full
force and effect and is not in default by any party thereto.
(p) The terms of each Mortgage require that the Healthcare Facility,
Healthcare Operator or Borrower shall take no action which will result in a
reduction, suspension, recoupment or elimination of reimbursement for services
from any Medicare, Medicaid or Third Party Payors' Programs.
21. Escrow Deposits. With respect to escrow deposits and payments
relating to any Mortgage Loan, all such payments have been delivered or will
be delivered in accordance with the terms of the Pooling and Servicing
Agreement to the Master Servicer or any subservicer, as applicable.
22. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code.
23. Advancement of Funds. No holder of a Mortgage Loan has, to the
Seller's knowledge, advanced funds or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related
Mortgaged Property (other than amounts paid by the tenant as specifically
provided under related lease), directly or indirectly, for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
24. Equity Interest. No Mortgage Loan is automatically convertible
into an equity ownership interest in the related Mortgaged Property or the
related Borrower.
25. Legal Proceedings. To the Seller's knowledge, there are no
pending or threatened actions, suits or proceedings by or before any court or
governmental authority against or affecting the Borrower under any Mortgage
Loan or the related Mortgaged Property that, if determined adversely to such
Borrower or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property or the ability of the Borrower to pay
principal, interest or any other amounts due under such Mortgage Loan.
26. Junior Liens. Where a Mortgaged Property securing a Mortgage Loan
is further encumbered by a junior lien, the loan secured by such junior lien
subordinates such loan and prohibits the related junior creditor from pursuing
any remedies for default or causing any bankruptcy
10
<PAGE>
proceeding, while such Mortgage Loan is outstanding. Except in cases involving
other Mortgage Loans, the Mortgaged Properties are not permitted to be
encumbered by any liens junior to or of equal priority with the liens of the
related Mortgages without the prior written consent of the holders thereof.
27. No Mechanics' Liens. To the Seller's knowledge, (i) each
Mortgaged Property securing a Mortgage Loan is free and clear of any and all
mechanics' and materialmen's liens that are not bonded or escrowed for or
affirmatively covered by title insurance, and (ii) no rights are outstanding
that under law could give rise to any such lien that would be prior or equal
to the lien of the related Mortgage unless insured against under the related
Title Policy. The Seller has not received notice with respect to any Mortgage
Loan that any mechanics' and materialmen's liens have encumbered the related
Mortgaged Property since origination that have not been released, bonded or
escrowed for or affirmatively covered by titled insurance.
28. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
29. Licenses and Permits. To the Seller's knowledge, based on due
diligence customarily performed by commercially reasonable lenders in the
origination of comparable mortgage loans, as of the date of origination of
each Mortgage Loan, (i) the related Borrower was in possession of all material
licenses, permits and authorizations required by applicable law for the
ownership of the related Mortgaged Property and (ii) all such licenses,
permits and authorizations were valid and in full force and effect.
30. Servicing Practices. The servicing and collection practices used
with respect to the Mortgage Loans have in all material respects been legal
and met customary standards utilized by prudent institutional commercial and
multifamily mortgage loan servicers with respect to "whole loans".
31. Cross-collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool.
32. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all
or any material portion of the related Mortgaged Property from the lien of the
related Mortgage except upon (i) payment in full of all amounts due under the
related Mortgage Loan, (ii) delivery of U.S. Treasury securities in connection
with a defeasance of the related Mortgage Loan, or (iii) in certain instances,
the substitution of a qualifying replacement Mortgaged Property. The
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or, in the case of a
Cross-Collateralized Group, the release of one or more related Mortgaged
Properties upon (i) the satisfaction of certain legal and underwriting
requirements and (ii) the payment of a release price and prepayment
consideration in connection therewith.
11
<PAGE>
33. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provide for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that during the period commencing on or about the Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (i) additional
interest shall accrue and be compounded monthly and shall be payable only
after the outstanding principal of such Mortgage Loan is paid in full, and
(ii) a portion of the cash flow generated by such Mortgaged Property will be
applied each month to pay down the principal balance thereof in addition to
the principal portion of the related Monthly Payment.
34. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
35. Inspection. In connection with the origination of each Mortgage
Loan (other than the Third Party Mortgage Loans), the Seller inspected, or
caused the inspection of, the related Mortgaged Property.
36. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the Mortgage Note or Mortgage for any
Mortgage Loan, in any such case to the extent the same materially and
adversely affects the value of the Mortgage Loan and the related Mortgaged
Property; provided, however, that this representation and warranty does not
cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of the subject matter otherwise covered
by any other representation and warranty made by the Seller in any of
Paragraphs 3, 7, 12, 14, 15, 16, 17, 21, 25, 26, 27, and 29 of this Exhibit C.
37. Due-on-Sale. Subject to exceptions set forth in the related
Mortgage Loan Documents, such Mortgage contains a "due-on-sale" clause that
provides for the acceleration of the payment of the unpaid principal balance
of such Mortgage Loan if, without the prior written consent of the holder, the
Mortgaged Property subject to such Mortgage, or any controlling interest in
the related Borrower, is directly or indirectly transferred or sold.
38. Delivery of Mortgage File. The Seller has delivered to the
Trustee or a Custodian appointed thereby, with respect to each Mortgage Loan,
in accordance with Section 2 of this Agreement, a complete Mortgage File.
39. Whole Loan. Each Mortgage loan is a whole loan and not a
participation interest in a mortgage loan.
40. No Waivers. The Seller has not waived any material default,
breach, violation or event of acceleration existing under the related Mortgage
or Mortgage Note, except by a written instrument
12
<PAGE>
contained in the Mortgage File, which instrument has been taken into account
by the Seller when giving the representations and warranties set forth herein.
41. Originator Authorized. To the extent required under applicable
law as of the Closing Date, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it held the Mortgage Loan to the extent
necessary to ensure enforceability of such Mortgage Loan.
42. Defeasance Provision. Any Mortgage Loan which contains a
provision for any defeasance of mortgage collateral permits defeasance (i) no
earlier than two years following the Closing Date (or, if earlier, two years
following the "startup day", within the meaning of Code Section 860G(a)(9), of
a REMIC of which the Mortgage Loan is an asset), (ii) only with substitute
collateral constituting "government securities" within the meaning of Treasury
Regulation Section 1.860G-2(a)(8)(i) and (iii) to the best of the Seller's
knowledge, not as part of an arrangement to collateralize a REMIC offering
with obligations that are not real estate mortgages.
43. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy or in certain instances an application has been made to the
applicable governing authority for creation of separate tax lots which shall
be effective for the next tax year.
44. Fee Interest. If "Fee" is set forth opposite the name of the
related Mortgaged Property on the Mortgage Loan Schedule, the interest of the
related Mortgagor in such Mortgaged Property is a fee simple interest in real
property.
45. Collateral. The Mortgage Note is not secured by any collateral
that is not conveyed pursuant to this Agreement.
46. Security Interest. In connection with the operation of a
Mortgaged Property as either a (i) Hospitality Property or (ii)
independent/assisted living or healthcare facility, the security agreements,
financing statements or other instruments, if any, related to each Mortgage
Loan establish and create a valid security interest in all items of personal
property owned by the related Borrower material to the conduct in the ordinary
course of the Borrower's business conducted on the related Mortgaged Property,
subject only to purchase money security interests and security interests to
secure revolving lines of credit and similar financing. The related assignment
of such security interest executed and delivered in favor of the Trustee
constitutes a legal, valid and binding assignment thereof from the relevant
assignor to the Trustee.
13
<PAGE>
Exhibit C-1
Exceptions to Representations and Warranties
representation and warranty 7. Condition of Property; Condemnation
Bell Run Plaza - property released to locality for road widening and
installation of stoplight. Old Florida Plaza - release of property for a
disclosed anticipated taking for a road widening.
representation and warranty 25. Legal Proceedings
Ohio Valley Nursing Home - Borrower is currently the defendant in three wrongful
termination suits. The plaintiff in each case has offered to settle
for $25,000, $20,000 and $10,000, respectively. The three suits
should not materially or adversely affect the value of the Mortgage
property or the ability of the Borrower to pay principal, interest or
any other amounts due under this Mortgage Loan. The Guarantor and the
Borrower will have recourse liability for any losses lender suffers
as a result of these suits.
representation and warranty 29. Licenses and Permits
Principal Financial Portfolio - Copies of C/Os for shell building and all
tenants unavailable from locality's building department records.
Letters received from the Town of Parsippany--Troy Hills, NJ and the
City of Hackensack, NJ that there are no violations at the property
locations. The missing C/Os are not material in light of this
additional due diligence performed on the status of the properties'
compliance.
representation and warranty 39. Whole Loan
Beechnut Village - LJ Melody & Company is paid an 8 basis point
servicing strip. Brousard Village Shopping Center - LJ Melody &
Company is paid an 8 basis point servicing
strip.
Casa Real Apartments - Franchise Mortgage Acceptance Company is paid a
10 basis point servicing strip.
Deerbrook Crossing - LJ Melody & Company is paid an 8 basis point
servicing strip. Holiday Inn--Clovis, NM - CFC Advisory Services
Limited Partnership is paid a 6 basis point servicing strip.
Pinewood Apartments - Franchise Mortgage Acceptance Company is paid a
10 basis point servicing strip.
Regent Place - CFC Advisory Services Limited Partnership is paid an
8 basis point servicing strip.
Shadowbrook Apartments - Franchise Mortgage Acceptance Company is
paid a 10 basis point servicing strip.
representation and warranty 43. Tax Parcels
Industrial Warehouse - not a separate tax parcel.
West Knoll Apartments - not a separate tax parcel.
Old Florida Plaza - not a separate tax parcel.
<PAGE>
Exhibit D-1
Certificate of an Officer of the Seller
CERTIFICATE OF AN OFFICER OF
GOLDMAN SACHS REAL ESTATE FUNDING CORP.
---------------------------------------
I, __________, hereby certify that I am a duly elected and acting
officer of Goldman Sachs Real Estate Funding Corp., a New York corporation
(the "General Partner") and the general partner of Goldman Sachs Mortgage
Company (the "Company"), in connection with (a) the sale of certain mortgage
assets to DLJ Commercial Mortgage Corp. (the "Depositor") pursuant to that
certain Mortgage Loan Purchase and Sale Agreement, dated as of June 11, 1999
(the "Mortgage Loan Purchase and Sale Agreement"), between the Company and the
Depositor, and (b) the transfer of such mortgage loans by the Depositor
pursuant to the Pooling and Servicing Agreement relating to DLJ Commercial
Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 1999-CG2,
and hereby certify further as follows:
1. The Company is a New York limited partnership duly organized and
existing under the laws of the State of New York.
2. Attached hereto as Exhibit A is a true, correct and complete copy
of the Amended and Restated Partnership Agreement (the "Partnership
Agreement") of the Company.
3. Attached hereto as Exhibit B-1 is a certificate of the New York
Secretary of State, issued within 10 days of the date hereof, with respect to
the good standing and legal existence of the Company in New York, and attached
hereto as Exhibit B-2 is a certificate of the New York Secretary of State,
issued within 10 days of the date hereof, with respect to the good standing
and legal existence of the General Partner in New York, and no event
(including, without limitation, any act or omission on the part of the Company
or the General Partner, as applicable) has occurred since the date of each
such certificate which has affected the good standing of the Company or the
General Partner, respectively, under the laws of the State of New York.
4. Attached hereto as Exhibit C is a true, correct and complete copy
of the resolutions of the General Partner duly adopted by unanimous written
consent in lieu of meeting of the Board of Directors of the General Partner.
Such resolutions have not been amended, modified or rescinded and remain in
full force and effect in the form adopted and taken as of the date hereof, and
are the only such resolutions of the Board of Directors of the General Partner
with respect to such matters.
5. There have been no amendments, waivers or modifications of the
Partnership Agreement other than as provided in Exhibit A, and no action has
been taken by the Company or its officers, agents or representatives in
contemplation of the liquidation or dissolution of the Company.
<PAGE>
6. Each person who, as an officer, agent or representative of the
Company, signed the Mortgage Loan Purchase and Sale Agreement or any other
document or certificate delivered on or before the date hereof in connection
with the transactions contemplated by such documents was, at the respective
times of such signing and delivery, and is now, duly elected or appointed,
qualified and acting as such officer, agent or representative, and the
signatures of such persons appearing on any such documents are their genuine
signatures.
[SIGNATURE PAGE FOLLOWS]
2
<PAGE>
IN WITNESS WHEREOF, I have hereunto caused this certificate to be
executed as of this ___ day of June, 1999.
GOLDMAN SACHS MORTGAGE COMPANY
By: Goldman Sachs Real Estate Funding Corp.,
its general partner
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
<PAGE>
Exhibit D-2
Certificate of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
Certificate of Goldman Sachs Mortgage Company
---------------------------------------------
In connection with the execution and delivery by Goldman Sachs
Mortgage Company ("GSMC") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase and Sale Agreement (the
"Agreement"), dated as of June 11, 1999, between DLJ Commercial Mortgage
Corp., as purchaser, and GSMC, as seller, the undersigned hereby certifies
that (i) the representations and warranties of GSMC in the Agreement are true
and correct in all material respects at and as of the date hereof with the
same effect as if made on the date hereof and (ii) GSMC has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part required under the Agreement to be performed or satisfied at or prior
to the date hereof. Capitalized terms used but not defined herein shall have
the respective meanings assigned to them in the Agreement.
Certified this ____ day of June, 1999.
GOLDMAN SACHS MORTGAGE COMPANY
By: Goldman Sachs Real Estate Funding Corp.,
its general partner
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
<PAGE>
Exhibit D-3
Opinion of Counsel to the Seller
A. In-House Opinion
In connection with rendering this opinion letter, I have examined or
have caused persons under my supervision to examine the Agreement, the ("GSMC
Loan Sale Agreement") and such other records and other documents as I have
deemed necessary. I have further assumed that there is not and will not be any
other agreement that materially supplements or otherwise modifies the
agreements expressed in the GSMC Loan Sale Agreement. As to matters of fact, I
have examined and relied upon representations of parties contained in the GSMC
Loan Sale Agreement and, where I have deemed appropriate, representations and
certifications of officers of the Purchaser, the Seller, the Other Loan
Sellers, the Master Servicer, the Special Servicer, the Trustee, other
transaction participants or public officials. I have assumed the authenticity
of all documents submitted to me as originals, the genuineness of all
signatures other than officers of the Seller and the conformity to the
originals of all documents submitted to me as copies. I have assumed that all
parties, except for the Seller, had the corporate power and authority to enter
into and perform all obligations thereunder. As to such parties, I also have
assumed the due authorization by all requisite corporate action, the due
execution and delivery and, including with respect to the Seller, the
enforceability of such documents. I have further assumed the conformity of the
Mortgage Loans and related documents to the requirements of the GSMC Loan Sale
Agreement.
In rendering this opinion letter, I do not express any opinion
concerning any law other than the law of the State of New York and the federal
law of the United States, and I do not express any opinion concerning the
application of the "doing business" laws or the securities laws of any
jurisdiction other than the federal securities laws of the United States. To
the extent that any of the matters upon which I am opining herein are governed
by laws ("Other Laws") other than the laws identified in the preceding
sentence, I have assumed with your permission and without independent
verification or investigation as to the reasonableness of such assumption,
that such Other Laws and judicial interpretation thereof do not vary in any
respect material to this opinion from the corresponding laws of the State of
New York and judicial interpretations thereof. I do not express any opinion on
any issue not expressly addressed below.
Based upon the foregoing, I am of the opinion that:
1. The Seller is duly formed and is validly existing as a limited
partnership in good standing under the laws of the State of New York and has
the requisite power and authority to enter into and perform its obligations
under the GSMC Loan Sale Agreement.
2. The GSMC Loan Sale Agreement has been duly and validly authorized,
executed and delivered by the Seller.
<PAGE>
3. No consent, approval, authorization or order of a State of New
York or federal court or governmental agency or body is required for the
consummation by the Seller of the transactions contemplated by the terms of
the GSMC Loan Sale Agreement, except for those consents, approvals,
authorizations or orders which previously have been obtained.
4. Neither the consummation of any of the transactions contemplated
by, nor the fulfillment by the Seller of any other of the terms of, the GSMC
Loan Sale Agreement, will result in a material breach of any term or provision
of the agreement of limited partnership or the certificate of limited
partnership of the Seller, any State of New York or federal statute or
regulation or any other material agreements to which the Seller is a party or
by which it is bound.
5. There are no actions, proceedings or investigations pending or, to
my knowledge, threatened against the Seller, which, in my judgment, either
singly or in the aggregate, may have had or are likely to have a material
adverse effect on the ability of the Seller to carry out the transactions
contemplated by the GSMC Loan Sale Agreement.
This opinion letter is rendered for the sole benefit of each
addressee hereof, and no other person or entity is entitled to rely hereon
without my prior written consent. Copies of this opinion letter may not be
furnished to any other person or entity, nor may any portion of this opinion
letter be quoted, circulated or referred to in any other document without my
prior written consent.
B. Special Counsel Opinion
In rendering the opinion set forth below, we have examined and relied
upon the originals, copies or specimens, certified or otherwise identified to
our satisfaction, of the Agreement, and such certificates, corporate and
public records, agreements and instruments and other documents, including,
among other things, the documents delivered on the Closing Date, as we have
deemed appropriate as a basis for the opinion expressed below. In such
examination we have assumed the genuineness of all signatures, the
authenticity of all documents, agreements and instruments submitted to us as
originals, the conformity to original documents, agreements and instruments of
all documents, agreements and instruments submitted to us as copies or
specimens, the authenticity of the originals of such documents, agreements and
instruments submitted to us as copies or specimens, and the accuracy of the
matters set forth in the documents, agreements and instruments we reviewed. As
to any facts material to such opinion that were not known to us, we have
relied upon statements and representations of officers and other
representatives of the Seller and Goldman Sachs.
We have also assumed that all documents, agreements and instruments
have been duly authorized, executed and delivered by all parties thereto, that
all such parties had the power and legal right to execute and deliver all such
documents, agreements and instruments, and, except as to the Seller, that such
documents, agreements and instruments are valid, binding and enforceable
obligations of such parties.
2
<PAGE>
We express no opinion concerning the laws of any jurisdiction other
than the laws of the State of New York (without regard to conflicts of laws
principles).
Based upon and subject to the foregoing, we are of the opinion that
the Agreement is the legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to creditors' rights
generally, and to general principles of equity including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforceability is considered in a proceeding in equity or at law), and except
to the extent rights with respect to indemnification and contribution
obligations may be limited by applicable law.
We are furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. This letter is not to be
relied upon, used, circulated, quoted or otherwise referred to by any other
person or for any other purpose without our prior written consent.
3
<PAGE>
Schedule I
Mortgage Loan Schedule
<PAGE>
EXHIBIT N
FORM OF UNION CAPITAL AGREEMENT
N-1
<PAGE>
SELLER'S WARRANTY CERTIFICATE
This Seller's Warranty Certificate, dated as of June 11,
1999 (this "Seller's Warranty Certificate"), is executed and delivered by
Union Capital Investments, LLC (the "Seller"), in favor of Column Financial,
Inc. ("Column"), its successors and assigns.
PRELIMINARY STATEMENT
The Seller and Column are parties to a Master Mortgage Loan
Purchase Agreement dated as of February 1, 1999 (the "Master Purchase
Agreement"). The mortgage loan or, if more than one, the mortgage loans (in
either case, the "Mortgage Loans") identified on the Mortgage Loan Schedule
attached as Schedule 1 hereto have been previously sold by the Seller to
Column pursuant to the Master Purchase Agreement. Column intends to transfer
the Mortgage Loans to DLJ Commercial Mortgage Corp. (the "Depositor") pursuant
to a Mortgage Loan Purchase and Sale Agreement (the "Column - Depositor
Agreement"); and the Depositor in turn intends to deposit the Mortgage Loans
into a trust fund to be evidenced by the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 1999-CG2 (the "Certificates"). The
Certificates will be issued on or about June 22, 1999 (the actual date of
issuance, the "Closing Date") pursuant to a Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), to be dated on or about June 1, 1999,
among the Depositor, GE Capital Loan Services, Inc., as master servicer (the
"Master Servicer"), Banc One Mortgage Capital Markets, LLC, as special
servicer (the "Special Servicer"), and Norwest Bank Minnesota, National
Association, as trustee (in such capacity, the "Trustee") and REMIC
administrator (in such capacity, the "REMIC Administrator"). The Seller agreed
in the Master Purchase Agreement to make certain representations and
warranties, repurchase certain Mortgage Loans and provide certain
indemnification in connection with any sale of the Mortgage Loans to a trust
fund to be formed as part of a mortgage pass-through transaction, and such
agreement was partial consideration for the execution and performance of the
Master Purchase Agreement by Column. Capitalized terms used but not defined
herein shall have the respective meanings assigned to such terms in the Master
Purchase Agreement or, if not defined in the Master Purchase Agreement, shall
have the respective meanings assigned to such terms in the Pooling and
Servicing Agreement.
Pursuant to the terms of the Column - Depositor Agreement,
Column shall assign to the Depositor, among other things, all of Column's
right, title and interest in and to the Mortgage Loans and under this Seller's
Warranty Certificate (except under Section 4 hereof); and pursuant to the
Pooling and Servicing Agreement, the Depositor shall assign to the Trustee,
for the benefit of the holders of the Certificates (the "Certificateholders"),
among other things, all of the Depositor's right, title and interest in and to
the Mortgage Loans and, to the extent assigned to it under the Column -
Depositor Agreement, under this Seller's Warranty Certificate.
SECTION 1. Delivery of Mortgage Files. The Seller agrees
that it shall deliver to the Trustee as assignee of the Depositor (or, if so
directed by Column, to a custodian appointed by the Trustee (a "Custodian")),
under the Pooling and Servicing Agreement, all of the documents required in
the Mortgage Files, at the times and in the manner otherwise required by the
Pooling
N-2
<PAGE>
and Servicing Agreement, in each case to the extent the Seller has not
delivered such documents to Column prior to the date hereof.
SECTION 2. Representations and Warranties of the Seller.
Pursuant to Section 7.01 of the Master Purchase Agreement, the Seller hereby
represents and warrants as of the Closing Date to and for the benefit of
Column, the Depositor, their affiliates, the Trustee and the
Certificateholders that (a) each of the representations and warranties set
forth in Sections 4.01 and 4.02 of the Master Purchase Agreement is true and
correct as if stated and made on the Closing Date and (b) each Mortgage Loan
bears interest at a rate that remains fixed throughout the term of such
Mortgage Loan. The Seller agrees that it shall be deemed to make as of the
date of substitution with respect to any Replacement Mortgage Loan (as defined
in the Pooling and Servicing Agreement) that is substituted by the Seller for
a Mortgage Loan in the manner set forth in Section 3 hereof, to and for the
benefit of Column, the Depositor, their affiliates, the Trustee and the
Certificateholders, each of the representations and warranties set forth in
Sections 4.01 and 4.02 of the Master Purchase Agreement as if stated and made
on the date of substitution, with any conforming changes necessary due to the
fact that such Replacement Mortgage Loan was not purchased pursuant to the
Master Purchase Agreement.
SECTION 3. Cure, Repurchase, Substitution and Indemnity
Obligations of the Seller. Each of the representations and warranties made
pursuant to Section 2 shall survive the transfer of the Mortgage Loans by
Column to the Depositor and by the Depositor to the Trustee, for the benefit
of the Certificateholders, and shall inure to the benefit of Column and its
successors and assigns (the holder(s) of any Mortgage Loan or related REO
Property, including, without limitation, the Trustee for the benefit of the
Certificateholders, being herein referred to as the "Owner" thereof),
notwithstanding any restrictive or qualified endorsement on any Mortgage Note
or assignment of Mortgage or Column's, the Depositor's or the Trustee's
examination of any Mortgage File. Upon discovery by either the Seller or the
related Owner of a breach of any of the representations and warranties made
pursuant to Section 2 that materially and adversely affects the value of any
Mortgage Loan or related REO Property or the interest of the related Owner
therein (any such breach, a "Material Breach"), the party discovering such
breach shall give prompt written notice to the other.
Within sixty (60) days of the earlier of either discovery by
or notice to the Seller of any Material Breach (other than a Material Breach
involving any representation or warranty made pursuant to Section 2 hereof
that is set forth in Section 4.01 of the Master Purchase Agreement), the
Seller shall use its best efforts to cure such Material Breach in all material
respects and, if such Material Breach cannot be cured within such 60-day
period, the Seller shall repurchase the affected Mortgage Loan or REO Property
at the Purchase Price (as defined in the Pooling and Servicing Agreement);
provided, however, that if the Seller's obligation to repurchase such affected
Mortgage Loan or REO Property as described above arises within the three-month
period commencing on the Closing Date (or within the two-year period
commencing on the Closing Date, if the affected Mortgage Loan or REO Property
is a "defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of
the Code and Treasury Regulation Section 1.860G- 2(f)), and if the affected
Mortgage Loan or REO Property is then subject to the Pooling and Servicing
Agreement and is not a Mortgage Loan that (or REO Property related to a
Mortgage
N-3
<PAGE>
Loan that) had been substituted for another Mortgage Loan in the manner
described hereinbelow, the Seller may, at its option, in lieu of repurchasing
such affected Mortgage Loan (but in any event no later than such repurchase
would have been required to be completed), (a) replace such affected Mortgage
Loan or REO Property with one or more Qualifying Substitute Mortgage Loans (as
defined in the Pooling and Servicing Agreement) that are approved by Column
and pay any corresponding Substitution Shortfall Amount (as defined in the
Pooling and Servicing Agreement), such substitution and payment to be effected
in accordance with the terms of the Pooling and Servicing Agreement, and (b)
deliver a certification to the Trustee to the effect that such substitute
mortgage loan satisfies or such substitute mortgage loans satisfy, as the case
may be, all of the requirements of the definition of "Qualifying Substitute
Mortgage Loan" in the Pooling and Servicing Agreement. The Seller may request
that the related Owner extend the 60- day period referenced above within which
the Seller must cure, repurchase or replace a Mortgage Loan or REO Property
affected by such a Material Breach, to ninety (90) or more days (but not more
than one hundred fifty (150) days) following the earlier of either discovery
by or notice to the Seller of such Material Breach, by delivering a written
request to the related Owner, together with evidence that the Seller is
diligently proceeding to cure such breach and will require the requested
extension to effect such cure; provided, however, that the related Owner may
determine to accept or deny any such request in its sole discretion, without
limitation. For purposes of this section, no such request shall be deemed to
have been accepted by the related Owner unless the related Owner has
affirmatively and expressly stated in writing its acceptance of such request.
If a Material Breach involves any representation or warranty made pursuant to
Section 2 hereof that is set forth in Section 4.01 of the Master Purchase
Agreement and such Material Breach cannot be cured within ninety (90) days of
the earlier of either discovery by or notice to the Seller of such Material
Breach, any or all of the Mortgage Loans and/or related REO Properties shall,
at the option of the related Owner, be repurchased by the Seller at the
Purchase Price (with no option to substitute). Any repurchase of Mortgage
Loans and/or REO Properties or payment of any Substitution Shortfall Amount
pursuant to the foregoing provisions of this Section 3 shall be accomplished
by wire transfer of immediately available funds in the amount of the Purchase
Price or Substitution Shortfall Amount, as applicable, pursuant to wiring
instructions furnished by the related Owner to the Seller.
At the time of the repurchase of or substitution for any
Mortgage Loan or REO Property as contemplated by the preceding paragraph, the
related Owner and Seller shall arrange for the reassignment of such Mortgage
Loan or the conveyance of such REO Property, as the case may be, to the Seller
and the delivery to the Seller of any documents held by or on behalf of the
related Owner relating to such Mortgage Loan or REO Property, as the case may
be. With respect to each Mortgage Loan and REO Property to be repurchased or
replaced as contemplated by the preceding paragraph, at the time the Purchase
Price or Substitution Shortfall Amount, as applicable, is wire transferred to
or at the direction of the related Owner, the Seller shall, simultaneously
with the initiation of such wire transfer, give written notice to the related
Owner that such wire transfer has been initiated.
In addition to such cure and repurchase or substitution
obligation, the Seller shall indemnify the related Owner and hold it harmless
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and other costs and
N-4
<PAGE>
expenses incurred in connection with any claim, demand, defense, or assertion
based on or grounded upon, or resulting from, a breach by the Seller of the
representations and warranties made pursuant to Section 2 hereof. The
obligations of the Seller set forth in this Section 3 to cure or to repurchase
or replace a defective Mortgage Loan or REO Property and to indemnify the
related Owner as provided in this Section 3 constitute the sole remedies of
the related Owner respecting a breach of such representations and warranties
made pursuant to Section 2 hereof.
SECTION 4. Indemnification. The Seller will indemnify and
hold harmless, Column, its affiliates, and each Person, if any, who controls
Column within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"; and all of the foregoing Persons, collectively, the "DLJ
Parties"), against any losses, claims, damages or liabilities to which they
may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) (each,
a "Liability") arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact provided by the Seller to any DLJ Party
("Seller Information") which is contained in the prospectus, private placement
memorandum and/or other disclosure document or any amendment or supplement
thereto (each, an "Offering Document") relating to the offering of any
securities evidencing ownership interests in the Mortgage Loans or which arise
out of or are based upon any omission or alleged omission to state in such
Offering Document a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and will reimburse each DLJ Party for any
legal or other expenses reasonably incurred by such DLJ Party in connection
with investigating or defending any such Liability; provided, however, that
the Seller shall not be liable in any such case to the extent and only to the
extent that any Liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in an
Offering Document in reliance upon and in conformity with information provided
by or on behalf of any Person other than the Seller. Column hereby agrees to
indemnify the Seller for any Liability arising out of or based upon Seller
Information which is not accurately reflected in any Offering Document.
(a) Promptly after receipt by a party with a right to
indemnification under this section (an "Indemnified Party") of notice of the
commencement of any action, such Indemnified Party will, if a claim in respect
thereof is to be made against a party with an indemnification obligation under
this section (the "Indemnifying Party"), notify the Indemnifying Party of the
commencement thereof; but the omission so to notify the Indemnifying Party
will not relieve the Indemnifying Party from any liability which it may have
to any Indemnified Party otherwise than under this section. In case any such
action is brought against an Indemnified Party, and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled to participate therein, and to the extent that it may elect by
written notice delivered to the Indemnified Party promptly after receiving the
aforesaid notice from such Indemnified Party, to assume the defense thereof,
with counsel satisfactory to such Indemnified Party; provided, however, that,
if the defendants in any such action include both the Indemnified Party and
the Indemnifying Party, and if the Indemnified Party shall have reasonably
considered that there may be legal defenses available to it and/or other
Indemnified Parties which are different from or additional to those available
to the Indemnifying Party, the Indemnified Party or Parties shall have the
right to select separate counsel to assert such legal defenses and to
otherwise participate in the
N-5
<PAGE>
defense of such action on behalf of such Indemnified Party or Parties. Upon
receipt of notice by such Indemnified Party of the Indemnifying Party's
election to so assume the defense of such action and approval by such
Indemnified Party of counsel, the Indemnifying Party will not be liable to
such Indemnified Party under this section for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof unless (i) the Indemnified Party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the preceding sentence (it being understood, however, that the
Indemnifying Party shall not be liable for the expenses of more than one
separate counsel), (ii) the Indemnifying Party shall not have employed counsel
satisfactory to the Indemnified Party within a reasonable period after notice
of commencement of the action or (iii) the Indemnifying Party has authorized
the employment of counsel for the Indemnified Party at the expense of the
Indemnifying Party; and except that if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in clause (i) or
(iii).
(b) In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in subsection
(a) of this Section 4 is for any reason held to be unenforceable although
applicable in accordance with its terms, the Seller on the one hand, and
Column on the other, shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Seller and Column in such proportions that Column is
responsible for its pro rata portion of such losses, liabilities, claims,
damages and expenses determined in accordance with the ratio that the (i)
difference between the aggregate purchase price paid to the Seller by Column
for the Mortgage Loans and the aggregate resale price received by Column,
bears to (ii) the aggregate resale price received by Column, and the Seller
shall be responsible for the balance; provided, however, that no Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. For purposes of this section,
each of the other DLJ Parties shall have the same rights to contribution as
Column.
SECTION 5. Assignment of this Seller's Warranty Certificate.
The rights and obligations of the Seller under this Seller's Warranty
Certificate may not be assigned, pledged or hypothecated by the Seller without
the consent of Column and its successors and assigns; except that any Person
into which the Seller may be merged or consolidated, or any Person resulting
from any merger, conversion or consolidation to which the Seller shall be a
party, or any Person succeeding to the business of the Seller, shall be the
successor of the Seller hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. The rights and obligations of Column
under this Seller's Warranty Certificate may, however, be assigned in whole or
in part by Column and its successors and assigns in connection with any
transfer of one or more Mortgage Loans. Without limiting the generality of the
foregoing, the Seller hereby acknowledges and approves the assignments
contemplated in the Preliminary Statement hereto.
SECTION 6. Seller's Warranty Certificate Supersedes Contrary
Provisions in Master Purchase Agreement. This Seller's Warranty Certificate
supersedes any contrary provisions of the Master Purchase Agreement, and
constitutes an amendment of such contrary
N-6
<PAGE>
provisions, insofar as (but only insofar as) such contrary provisions of the
Master Purchase Agreement relate to the Mortgage Loans. The rights and
obligations of the Seller and Column under the Master Purchase Agreement are
otherwise unaffected, and the provisions of the Master Purchase Agreement
otherwise remain in full force and effect.
SECTION 7. Description of the Seller. In connection with the
offering of the Certificates pursuant to the Offering Documents, the Seller
authorizes the inclusion in the Offering Documents of the description of the
Seller, attached as Exhibit A hereto, and hereby represents and warrants that
such description does not contain any material misstatements of fact.
N-7
<PAGE>
IN WITNESS WHEREOF, the Seller has caused its name to be
signed by its duly authorized officer as of the date first above written.
UNION CAPITAL INVESTMENTS, LLC
By: ____________________________________
Name:
Title:
Acknowledged and Accepted:
COLUMN FINANCIAL, INC.
By: ____________________________
Name:
Title:
<PAGE>
EXHIBIT A
Union Capital Investments LLC. Union Capital is a limited
liability company, with its principal office in Atlanta, Georgia. Union
Capital is primarily involved in conduit lending, and it originates,
underwrites and closes first mortgage loans secured by all types of
multifamily rental and commercial real estate throughout the United States.
The principals of Union Capital have been involved in the conduit lending
field since January 1993.
<PAGE>
SCHEDULE I
Mortgage Loan Schedule
<TABLE>
<CAPTION>
Mortgage Loan Cut-Off
Number Property Name Date Balance
------ ------------- ------------
<S> <C> <C>
127 Washington Square Shopping Center $5,082,521
129 Anaheim Mobile Estates $5,042,440
136 Highland Country Estates $4,797,116
173 Montclair Apartments $3,145,935
209 El San Juan Mobile Home Park $2,398,633
243 Harmony Mobile Home Park $1,796,802
280 2221 Lee Road Office Building $1,174,465
289 Circle K Mobile Home Park $1,035,735
301 Lone Mountain Mobile Home Park $ 900,000
</TABLE>
<PAGE>
EXHIBIT O
SCHEDULE OF DESIGNATED ARD LOANS
<TABLE>
<CAPTION>
Cut-Off
Property Name Date Balance Maturity Date ARD Date
- ------------- ------------ ------------- --------
<S> <C> <C> <C>
Oakwood Plaza $67,944,452 02/01/29 02/01/09
Herald Center $49,975,508 05/01/29 05/01/09
Cole Spring Plaza $13,054,552 04/01/28 04/01/10
Pines of Westbury $12,940,243 12/01/28 12/01/08
Colesville Towers $12,457,514 04/01/28 04/01/08
North Pointe Apartments $11,209,320 05/01/28 05/01/13
Hazelcrest Place $ 9,063,117 10/01/28 10/01/18
BJ's Plaza Shopping Center $ 9,030,538 08/01/28 08/01/13
1384-1450 Park Avenue $ 4,148,631 07/01/28 07/01/13
Rojacks Supermarket/CVS Pharmacy $ 2,271,495 07/01/28 07/01/13
Trucchi's Supermarket $ 1,711,508 07/01/28 07/01/13
Country Corners Apartments $ 7,033,257 02/01/28 02/01/08
Chalet Apartments & Commercial Plaza $ 6,829,146 05/01/28 05/01/13
Village Green Plaza Shopping Center $ 5,930,478 08/01/23 08/01/11
Garden City Tower $ 4,869,438 10/01/28 10/01/18
Nassau Bay Village Apartments $ 3,553,801 10/01/28 10/01/03
Fairview Market $ 3,168,561 05/01/28 05/01/18
Rustic Ridge Apartments $ 2,433,802 09/01/23 09/01/13
Raintree Apartments $ 2,176,570 09/01/23 09/01/13
OfficeMax $ 1,761,049 06/01/18 06/01/13
Boulder Ridge Apartments $ 1,610,052 08/01/23 08/01/13
Rivermont Park $ 1,468,887 07/01/18 07/01/08
</TABLE>
O-1
<PAGE>
EXHIBIT P
SCHEDULE OF DESIGNATED SUB-SERVICERS
<TABLE>
<CAPTION>
Cut-off Date Designated
Property Name Balance Sub-Servicer
- ------------- ------------ ------------
<S> <C> <C>
Deerbrook Crossing Shopping Center $14,150,000 L.J. Melody & Company
Pinewood Apartments $10,516,842 Franchise Mortgage Acceptance
Company
The Shadowbrook Apartments $9,397,777 Franchise Mortgage Acceptance
Company
Casa Real Apartments $5,211,823 Franchise Mortgage Acceptance
Company
Beechnut Village Shopping Center $5,075,000 L.J. Melody & Company
Holiday Inn - Clovis $3,294,731 CF Advisory Services Limited
Partnership
Regent Place Office Building $2,497,315 CF Advisory Services Limited
Partnership
Broussard Village Shopping Center $2,243,880 L.J. Melody & Company
</TABLE>
P-1
<PAGE>
EXECUTION COPY
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
UNDERWRITING AGREEMENT
June 11, 1999
Donaldson, Lufkin &
Jenrette
Securities Corporation
277 Park Avenue
New York, NY 10172
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Ladies and
Gentlemen:
DLJ Commercial Mortgage Corp., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
sell to you (together, the "Underwriters"), those classes (each, a "Class") of
its Commercial Mortgage Pass-Through Certificates, Series 1999-CG2, specified
in Schedule II hereto (the "Offered Certificates"). The Offered Certificates,
together with the other commercial mortgage pass-through certificates of the
same series (the "Private Certificates"; and, collectively with the Offered
Certificates, the "Certificates"), will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") to be dated as of
June 1, 1999 (the "Cut-off Date"), among the Company, as depositor, GE Capital
Loan Services, Inc., as master servicer (the "Master Servicer"), Banc One
Mortgage Capital Markets, LLC, as special servicer (the "Special Servicer"),
and Norwest Bank Minnesota, National Association, as trustee (in such capacity,
the "Trustee") and as REMIC administrator (in such capacity, the "REMIC
Administrator"). The Certificates will evidence the entire beneficial ownership
of a trust fund (the "Trust Fund") to be established by the Company pursuant to
the Pooling and Servicing Agreement. The Trust Fund will consist primarily of a
pool (the "Mortgage Pool") of conventional, monthly pay, commercial and
multifamily mortgage loans (the "Mortgage Loans") transferred by the Company to
the Trust Fund and listed in an attachment to the Pooling and Servicing
Agreement. Multiple real estate mortgage investment conduit ("REMIC") elections
are to be made with respect to the Trust Fund with the resulting REMICs being
referred to as "REMIC I", "REMIC II", "REMIC III" and the "Loan REMICs",
respectively. The Company acquired certain of the Mortgage Loans from GE
Capital Access, Inc. ("GECA"), certain of the
<PAGE>
Mortgage Loans from Goldman Sachs Mortgage Company ("GSMC") and the remaining
Mortgage Loans from Column Financial, Inc. ("Column"; and collectively with
GECA and GSMC, the "Mortgage Loan Sellers"), in each case pursuant to a
Mortgage Loan Purchase and Sale Agreement (each, a "Mortgage Loan Purchase and
Sale Agreement") dated as of the date hereof, between the Company and the
particular Mortgage Loan Seller. The Offered Certificates and the Mortgage
Loans are described more fully in the Basic Prospectus and the Prospectus
Supplement (each of which terms is defined below) which the Company is
furnishing to you. Capitalized terms used but not otherwise defined herein will
have the respective meanings assigned thereto in the Prospectus Supplement.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-59167) on Form
S-3 for the registration under the Securities Act of 1933, as amended (the
"Act"), of the offer and sale of the Offered Certificates, which registration
statement has become effective and copies of which have heretofore been
delivered to you. Such registration statement meets the requirements set forth
in Rule 415(a)(1) under the Act and complies in all other material respects
with such Rule. The Company proposes to file with the Commission pursuant to
Rule 424 under the Act a supplement, dated the date specified in Schedule II
hereto, to the prospectus, dated the date specified in Schedule II hereto,
relating to the Offered Certificates and the method of distribution thereof and
has previously advised you of all further information (financial and other)
with respect to the Offered Certificates set forth therein. Such registration
statement, including the exhibits thereto, as amended at the date hereof is
hereinafter called the "Registration Statement"; such prospectus, in the form
in which it will be filed with the Commission pursuant to Rule 424 under the
Act, is hereinafter called the "Basic Prospectus"; such supplement to the Basic
Prospectus, in the form in which it will be filed with the Commission pursuant
to Rule 424 under the Act, is hereinafter called the "Prospectus Supplement";
and the Basic Prospectus and the Prospectus Supplement together are hereinafter
called the "Prospectus". Any preliminary form of the Prospectus Supplement
which has heretofore been filed pursuant to Rule 402(a) or Rule 424 under the
Act is hereinafter called a "Preliminary Prospectus Supplement"; and any such
Preliminary Prospectus Supplement, together with the form of prospectus that
accompanied it, are hereinafter called a "Preliminary Prospectus". References
herein to the Prospectus or Prospectus Supplement shall exclude information
incorporated therein by reference pursuant to a filing made in accordance with
Section 9 hereof, but shall include any ABS Term Sheet (as defined in Section
9) actually included therein other than by incorporation by reference (and
regardless of whether such ABS Term Sheet is also incorporated therein by
reference). The Company, as depositor with respect to the Trust Fund, will file
with the Commission within fifteen days of the issuance of the Offered
Certificates a report on Form 8-K setting forth specific information concerning
the Offered Certificates.
(b) As of the date hereof, when the Registration Statement
became effective, when the Prospectus Supplement is first filed pursuant to
Rule 424 under the Act, when, prior to the Closing Date (as defined in Section
3), any other amendment to the Registration Statement becomes
-2-
<PAGE>
effective, when, prior to the Closing Date, any supplement to the Prospectus
Supplement is filed with the Commission, and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Prospectus, as
amended or supplemented as of any such time, complied or will comply in all
material respects with the applicable requirements of the Act and the rules
thereunder, (ii) the Registration Statement, as amended as of any such time,
did not and will not contain any untrue statement of a material fact and did
not and will not omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii) the
Prospectus, as amended or supplemented as of any such time, did not and will
not contain an untrue statement of a material fact and did not and will not
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, that the Company makes no representations or warranties
as to (A) the information contained in or omitted from the Registration
Statement or the Prospectus, or any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter directly for use therein, (B) the information
contained in or omitted from the Prospectus, or any amendment thereof or
supplement thereto, in reliance upon and conformity with (1) the Master Tape
(it being acknowledged that the Master Tape was used to prepare the Prospectus
Supplement, including, without limitation, Exhibit A-1 and Exhibit A-2 to the
Prospectus Supplement and the accompanying diskette), (2) the representations
and warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement, or (3) any other information
concerning the characteristics of the Mortgage Loans, the related Borrowers or
the related Mortgaged Properties furnished to the Company or the Underwriters
by any Mortgage Loan Seller, (C) the information regarding the Mortgage Loans,
the related borrowers (the "Borrowers" and the related mortgaged properties
(the "Mortgaged Properties") contained in or omitted from the Prospectus
Supplement, or any amendment thereof or supplement thereto, under the headings
"Summary of the Prospectus Supplement--The Mortgage Loans and the Mortgaged
Properties", "Risk Factors" and "Description of the Mortgage Pool" or on
Exhibit A-1 or Exhibit A-2 thereto or on the accompanying diskette, or (D) the
information contained in or omitted from any Computational Materials (as
defined in Section 9 hereof) or ABS Term Sheets, or any amendment thereof or
supplement thereto, incorporated by reference in the Registration Statement,
any Preliminary Prospectus or the Prospectus (or any amendment thereof or
supplement thereto) by reason of a filing made in accordance with Section 9.
The "Master Tape" consists of the compilation of underlying information and
data regarding the Mortgage Loans covered by the Independent Accountants Report
on Applying Agreed Upon Procedures dated June 3, 1999, as supplemented to the
Closing Date, and rendered by Arthur Andersen LLP.
(c) The Company is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, with
full power and authority (corporate and other) to own its properties and
conduct its business, as described in the Prospectus, and to enter into and
perform its obligations under this Agreement and the Pooling and Servicing
Agreement, and is conducting its business so as to comply in all material
respects with all applicable statutes, ordinances, rules and regulations of the
jurisdictions in which it is conducting business.
-3-
<PAGE>
(d) The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, regarding the Offered
Certificates (ii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose or (iii) any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(e) At or prior to the Closing Date, the Company will have
entered into the Pooling and Servicing Agreement; this Agreement has been duly
authorized, executed and delivered by the Company, and the Pooling and
Servicing Agreement, when delivered by the Company, will have been duly
authorized, executed and delivered by the Company; and this Agreement
constitutes, and the Pooling and Servicing Agreement, when delivered by the
Company, will constitute, valid and binding agreements of the Company,
enforceable against the Company in accordance with their respective terms,
except as such enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, moratorium, receivership, reorganization or similar laws affecting
the rights of creditors generally, (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and (iii) public
policy considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of any provisions of this
Agreement or the Pooling and Servicing Agreement which purport to provide
indemnification from securities law liabilities.
(f) The Offered Certificates and the Pooling and Servicing
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus; the issuance and sale of the Offered Certificates
have been duly and validly authorized by the Company, and such Certificates
will, when duly and validly executed and authenticated by the Trustee in
accordance with the Pooling and Servicing Agreement, be entitled to the
benefits of the Pooling and Servicing Agreement.
(g) As of the Closing Date, the representations and
warranties of the Company set forth in Section 2.04 of the Pooling and
Servicing Agreement will be true and correct.
(h) Neither the sale of the Offered Certificates to the
Underwriters pursuant hereto, nor the consummation of any other of the
transactions contemplated herein, nor the fulfillment of any of the terms of
the Pooling and Servicing Agreement or this Agreement, will result in the
breach of any term or provision of the certificate of incorporation or by-laws
of the Company or conflict with, result in a material breach, violation or
acceleration of or constitute a default under, the terms of any indenture or
other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it is bound, or any statute, order or regulation
applicable to the Company or any of its subsidiaries of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company or any of its subsidiaries. Neither the Company nor any of its
subsidiaries is a party to, bound by or in breach or violation of any indenture
or other agreement or instrument, or subject to or in violation of any statute,
order or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it,
-4-
<PAGE>
which materially and adversely affects the ability of the Company to perform
its obligations under this Agreement and the Pooling and Servicing Agreement.
(i) There are no actions or proceedings against, or
investigations of, the Company pending, or, to the knowledge of the Company,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Pooling and Servicing Agreement
or the Offered Certificates, (ii) seeking to prevent the issuance of the
Offered Certificates or the consummation of any of the transactions
contemplated by this Agreement or the Pooling and Servicing Agreement, (iii)
which might materially and adversely affect the performance by the Company of
its obligations under, or the validity or enforceability of, this Agreement,
the Pooling and Servicing Agreement or the Offered Certificates or (iv) seeking
to affect adversely the federal income tax attributes of the Offered
Certificates described in the Prospectus.
(j) There has not been any material adverse change in the
business, operations, financial condition, properties or assets of the Company
since the date of its latest audited financial statements which would have a
material adverse effect on the ability of the Company to perform its
obligations under the Pooling and Servicing Agreement.
(k) There are no contracts, indentures or other documents of
a character required by the Act or by the rules and regulations thereunder to
be described or referred to in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(l) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Offered Certificates pursuant to this Agreement and the
Pooling and Servicing Agreement, except such as have been, or as of the Closing
Date will have been, obtained or such as may otherwise be required under
applicable state securities laws in connection with the purchase and offer and
sale of the Offered Certificates by the Underwriters and any recordation of the
respective assignments of the Mortgage Loan documents to the Trustee pursuant
to the Pooling and Servicing Agreement, that have not been completed.
(m) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such license, certificate,
authority or permit which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company.
(n) Any taxes, fees and other governmental charges payable by
the Company in connection with the execution and delivery of this Agreement and
the Pooling and Servicing Agreement or the issuance and sale of the Offered
Certificates (other than such federal, state and local
-5-
<PAGE>
taxes as may be payable on the income or gain recognized therefrom) have been
or will be paid at or prior to the Closing Date.
(o) Immediately prior to the assignment of the Mortgage Loans
to the Trustee, the Company will have good title to, and will be the sole owner
of, each Mortgage Loan, free and clear of any pledge, mortgage, lien, security
interest or other encumbrance; provided that this representation and warranty
is made on the basis of the assumption that the Mortgage Loan Sellers delivered
to the Company good title to each Mortgage Loan, free and clear of any pledge,
mortgage, lien, security interest or other encumbrance.
(p) The transfer of the Mortgage Loans to the Trustee and the
sale of the Certificates by the Company, at the Closing Date, will be treated
by the Company for financial accounting and reporting purposes as a sale of
assets and not as a pledge of assets to secure debt.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal or
notional amount of each Class of the Offered Certificates set forth opposite
each such Underwriter's name in Schedule I hereto.
The purchase price for each Class of the Offered Certificates
as a percentage of the aggregate principal or notional amount thereof as of the
Closing Date is set forth in Schedule II hereto. There will be added to the
purchase price of the Offered Certificates interest in respect of each Class of
the Offered Certificates at the interest rate applicable to such Class from the
Cut-off Date to but not including the Closing Date.
3. Delivery and Payment. The closing for the purchase and
sale of the Offered Certificates contemplated hereby (the "Closing"), shall be
made at the date, location and time of delivery set forth in Schedule II
hereto, or such later date as shall be mutually acceptable to the Underwriters
and the Company (such date and time of purchase and sale of the Offered
Certificates being herein called the "Closing Date"). Delivery of the Offered
Certificates will be made in book-entry form through the facilities of The
Depository Trust Company ("DTC"). Each Class of Offered Certificates will be
represented by one or more definitive global Certificates to be deposited by or
on behalf of the Company with DTC. Delivery of the Offered Certificates shall
be made to the several Underwriters against payment by the several Underwriters
of the purchase price thereof to or upon the order of the Company by wire
transfer of immediately available funds or by such other method as may be
acceptable to the Company.
The Company agrees to have the Offered Certificates available
for inspection, checking and packaging by the Underwriters in New York, New
York, not later than 1:00 p.m. on the business day prior to the Closing Date.
-6-
<PAGE>
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Offered Certificates for sale to the
public as set forth in the Prospectus. It is further understood that the
Company in reliance upon Policy Statement 105, has not filed and will not file
an offering statement pursuant to Section 352-e of the General Business Law of
the State of New York with respect to the Offered Certificates. As required by
Policy Statement 105, each Underwriter therefore covenants and agrees with the
Company that sales of the Offered Certificates made by such Underwriter in the
State of New York will be made only to institutional investors within the
meaning of Policy Statement 105.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will promptly advise the Underwriters (i)
when, during any period that a prospectus relating to the Offered Certificates
is required to be delivered under the Act, any amendment to the Registration
Statement affecting the Offered Certificates shall have become effective, (ii)
of any request by the Commission for any amendment to the Registration
Statement or the Prospectus, or for any additional information, affecting or in
respect of the Offered Certificates, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
affecting the Offered Certificates or the institution or threatening of any
proceeding for that purpose and (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will not file any amendment to the
Registration Statement affecting the Offered Certificates or any supplement to
the Prospectus unless the Company has furnished you with a copy for your review
prior to filing, and will not file any such proposed amendment or supplement to
which you reasonably object, in any event until after the end of the period
during which a prospectus is required to be delivered to purchasers of the
Offered Certificates under the Act. Subject to the foregoing sentence, the
Company will cause the Prospectus Supplement to be transmitted to the
Commission for filing pursuant to Rule 424 under the Act by means reasonably
calculated to result in filing with the Commission pursuant to said Rule. The
Company will use its best efforts to prevent the issuance of any stop order
suspending the effectiveness of the Registration Statement affecting the
Offered Certificates and, if issued, to obtain as soon as possible the
withdrawal thereof
(b) The Company will cause any Computational Materials and
Structural Term Sheets (each as defined in Section 9 below) with respect to the
Offered Certificates that are delivered by an Underwriter to the Company
pursuant to Section 9 to be filed with the Commission on a Current Report on
Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on the business day
immediately following the later of (i) the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Company
by an Underwriter prior to 10:30 a.m. (New York City time) and (ii) the date on
which this Agreement is executed and delivered. The Company will cause one
Collateral Term Sheet (as defined in Section 9 below) with respect to the
Offered Certificates that is delivered by the Underwriters to the Company in
accordance with the provisions of Section 9 to be filed with the Commission on
a Current Report pursuant to Rule 13a-11 under the Exchange Act
-7-
<PAGE>
on the business day immediately following the day on which such Collateral
Term Sheet is delivered to counsel for the Company by the Underwriters prior
to 10:30 a.m. (New York City time). In addition, if at any time prior to the
availability of the Prospectus Supplement, the Underwriters have delivered to
any prospective investor a subsequent Collateral Term Sheet that reflects, in
the reasonable judgment of the Underwriters and the Company, a material change
in the characteristics of the Mortgage Loans from those on which a Collateral
Term Sheet with respect to the Offered Certificates previously filed with the
Commission was based, the Company will cause any such Collateral Term Sheet
that is delivered by the Underwriters to the Company in accordance with the
provisions of Section 9 to be filed with the Commission on a Current Report on
the business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by the Underwriters prior to
10:30 a.m. (New York City time). In each case, the Company will promptly
advise the Underwriters when such Current Report has been so filed. Each such
Current Report shall be incorporated by reference in the Prospectus and the
Registration Statement. Notwithstanding the foregoing provisions of this
Section 5(b), the Company shall have no obligation to file any materials
provided by the Underwriters pursuant to Section 9 which, in the reasonable
determination of the Company, are not required to be filed pursuant to the
Kidder Letters or the PSA Letter (each as defined in Section 9 below), or
contain erroneous information or contain any untrue statement of a material
fact or, when read in conjunction with the Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being understood,
however, that the Company shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any Computational Materials or ABS
Term Sheets provided by the Underwriters to the Company pursuant to Section 9
hereof. The Company shall give notice to the Underwriters of its determination
not to file any materials pursuant to the preceding sentence and agrees to
file such materials if the Underwriters reasonably object to such
determination within one business day after receipt of such notice.
(c) If, at any time when a prospectus relating to the
Offered Certificates is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the Act or the
rules under the Act, the Company promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 5, an amendment or
supplement that will correct such statement or omission or an amendment that
will effect such compliance and, if such amendment or supplement is required
to be contained in a post-effective amendment to the Registration Statement,
will use its best efforts to cause such amendment of the Registration
Statement to be made effective as soon as possible; provided, however, that
the Company will not be required to file any such amendment or supplement with
respect to any Computational Materials or ABS Term Sheets incorporated by
reference in the Prospectus other than any amendments or supplements of such
Computational Materials or ABS Term Sheets that are furnished to the Company
pursuant to Section 9 hereof which the Company determines to file in
accordance therewith.
-8-
<PAGE>
(d) The Company will furnish to the Underwriters and
counsel for the Underwriters, without charge, for so long as delivery by an
Underwriter or dealer of a prospectus relating to the Offered Certificates may
be required by the Act, as many copies of the Prospectus, the Preliminary
Prospectus, if any, and any amendments and supplements thereto as the
Underwriters may reasonably request.
(e) The Company agrees that, so long as the Offered
Certificates shall be outstanding, it will deliver or cause to be delivered to
the Underwriters the annual statements as to compliance and the annual
statements of a firm of independent public accountants, furnished to the
Trustee by the Master Servicer and the Special Servicer pursuant to Sections
3.13 and 3.14 of the Pooling and Servicing Agreement, as soon as such
statements are furnished to the Company.
(f) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as either
Underwriter may designate and will maintain such qualification in effect so
long as required for the distribution of the Offered Certificates, provided,
however, that the Company shall not be required to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action that
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(g) All costs and expenses in connection with the
transactions contemplated hereby will be payable in accordance with the Term
Sheet for the Joint Conduit Securitization dated as of April 26, 1999, among
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJSC"), GSMC and GECA.
(h) The Company shall deliver to the Underwriters a copy or
series of copies of the Prospectus (exclusive of information incorporated
therein and further exclusive of the exhibits and annexes to the Prospectus
Supplement) at or prior to the printing thereof, marked to show changes from
the Preliminary Prospectus.
6. Conditions to the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase the Offered Certificates
as provided in this Agreement shall be subject to the accuracy in all material
respects of the representations and warranties on the part of the Company
contained herein as of the date hereof and as of the Closing Date, to the
accuracy in all material respects of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance in all
material respects by the Company of its obligations hereunder and to the
following additional conditions with respect to the Offered Certificates:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened; and the Prospectus
Supplement shall have been filed with the Commission within the time period
prescribed by the Commission.
-9-
<PAGE>
(b) The Underwriters shall have received from the Company a
certificate, dated the Closing Date and executed by an executive officer of
the Company, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at
and as of the Closing Date with the same effect as if made on the Closing
Date; and (ii) the Company has in all material respects complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date.
(c) The Underwriters shall have received with respect to the
Company a good standing certificate from the Secretary of State of the State
of Delaware, dated not earlier than 10 days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary
or an assistant secretary of the Company, in his individual capacity, a
certificate, dated the Closing Date, to the effect that: (i) each individual
who, as an officer or representative of the Company, signed this Agreement,
the Pooling and Servicing Agreement or any other document or certificate
delivered on or before the Closing Date in connection with the transactions
contemplated herein or in the Pooling and Servicing Agreement, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (ii) no event (including,
without limitation, any act or omission on the part of the Company) has
occurred since the date of the good standing certificate referred to in
paragraph (c) above which has affected the good standing of the Company under
the laws of the State of Delaware. Such certificate shall be accompanied by
true and complete copies (certified as such by the Secretary or an assistant
secretary of the Company) of the certificate of incorporation and by-laws of
the Company, as in effect on the Closing Date, and of the resolutions of the
Company and any required shareholder consent relating to the transactions
contemplated in this Agreement and the Pooling and Servicing Agreement.
(e) The Underwriters shall have received from Sidley &
Austin, counsel for the Company, a favorable opinion, dated the Closing Date
and reasonably satisfactory in form and substance to counsel for each
Underwriter, to the effect that:
(i) The Registration Statement has become effective under
the Act.
(ii) To such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued, and
no proceedings for that purpose have been instituted or threatened.
(iii) The Registration Statement, the Basic Prospectus and
the Prospectus Supplement, as of their respective effective or issue
dates (other than the financial statements, schedules and other
financial and statistical information contained therein or omitted
therefrom, as to which such counsel need express no opinion),
complied as to form in all material respects with the applicable
requirements of the Act and the rules and regulations thereunder.
-10-
<PAGE>
(iv) To such counsel's knowledge, there are no material contracts,
indentures or other documents relating to the Offered Certificates of a
character required to be described or referred to in the Registration
Statement or the Prospectus Supplement or to be filed as exhibits to the
Registration Statement, other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto.
(v) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Delaware and has
the requisite corporate power and authority to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement.
(vi) Each of this Agreement and the Pooling and Servicing Agreement
has been duly authorized, executed and delivered by the Company.
(vii) Each of the Pooling and Servicing Agreement and this Agreement
constitutes a valid, legal and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by (A) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement of
the rights of creditors generally, (B) general principles of equity,
regardless of whether enforcement is sought in a proceeding in equity or at
law, and (C) public policy considerations underlying the securities laws to
the extent that the same limit the enforceability of any provisions of such
agreement that purport or are construed to provide indemnification with
respect to securities law violations.
(viii) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for in accordance with this Agreement, will be entitled to
the benefits of the Pooling and Servicing Agreement.
(ix) Neither the sale of the Offered Certificates to the Underwriters
pursuant to this Agreement nor the consummation of any of the other
transactions contemplated by, or the fulfillment by the Company of the terms
of, this Agreement and the Pooling and Servicing Agreement, will conflict
with, result in a material breach, violation or acceleration of or constitute
a material default under the terms of any indenture or other material
agreement or instrument known to such counsel (based solely on a certification
by the Company) to which the Company is a party or by which it is bound, or
conflict with or result in a breach or violation of any term or provision of
the certificate of incorporation or by-laws of the Company or any federal or
State of New York statute or regulation, except such counsel need express no
opinion as to compliance with the securities laws of the State of New York and
other particular States in connection with the purchase and the offer and sale
of the Offered Certificates by the Underwriters.
(x) No consent, approval, authorization or order of any federal or
State of New York court, agency or other governmental body is required for the
consummation by the
-11-
<PAGE>
Company of the transactions contemplated by the terms of this Agreement and
the Pooling and Servicing Agreement, except such as may be required under the
securities laws of the State of New York and other particular States in
connection with the purchase and the offer and sale of the Offered
Certificates by the Underwriters as to which such counsel need express no
opinion, and except such as have been obtained.
(xi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended. The Trust Fund is
not required to be registered under the Investment Company Act of 1940, as
amended.
(xii) The statements set forth in the Prospectus Supplement under the
headings "Description of the Offered Certificates" and "Servicing of the
Mortgage Loans" and in the Basic Prospectus under the headings "Description of
the Certificates" and "Description of the Pooling Agreements", insofar as such
statements purport to summarize certain material provisions of the Offered
Certificates and the Pooling and Servicing Agreement, are accurate in all
material respects.
(xiii) The statements set forth in the Prospectus Supplement under
the headings "Certain ERISA Considerations", "Federal Income Tax Consequences"
and "Legal Investment", and in the Basic Prospectus under the headings "ERISA
Considerations", "Federal Income Tax Consequences" and "Legal Investment", to
the extent that they purport to describe certain matters of federal law or
legal conclusions with respect thereto, while not discussing all possible
consequences of an investment in the Offered Certificates to all investors,
provide an accurate summary of such matters and conclusions set forth under
such headings.
(xiv) As described in the Prospectus Supplement, and assuming
compliance with all the provisions of the Pooling and Servicing Agreement, (A)
REMIC I will qualify as a REMIC within the meaning of Sections 860A through
860G of the Internal Revenue Code of 1986 in effect on the date hereof (the
"REMIC Provisions") and the REMIC I Regular Interests (as defined in the
Pooling and Servicing Agreement) will be "regular interests" and the Class R-I
Certificates will evidence the sole class of "residual interests" in REMIC I
(as both terms are defined in the REMIC Provisions in effect on the Closing
Date), (B) REMIC II will qualify as a REMIC within the meaning of the REMIC
Provisions, and the REMIC II Regular Interests (as defined in the Pooling and
Servicing Agreement) will be "regular interests" and the Class R-II
Certificates will evidence the sole class of "residual interests" in REMIC II,
and (C) REMIC III will qualify as a REMIC within the meaning of the REMIC
Provisions, and the Class S, Class A- I A, Class A- I B, Class A-2, Class A-3,
Class A-4, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
Class B-7, Class B-8 and Class C Certificates will evidence "regular
interests" and the Class R-III Certificates will evidence the sole class of
"residual interests" in REMIC III.
-12-
<PAGE>
(xv) The portions of the Trust Fund consisting of Grantor
Trust D-1 and Grantor Trust D-2 (each as defined in the Pooling and
Servicing Agreement) will each be classified as a grantor trust under
subpart E, part I of subchapter J of the Internal Revenue Code of
1986.
Such opinion (x) may express its reliance as to factual
matters on certificates of government and agency officials and the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Pooling and
Servicing Agreement, (y) may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the Company and otherwise be based on such assumptions as
may be reasonably acceptable to counsel for each of the Underwriters, and (z)
may be qualified as an opinion only on the law of the State of New York, the
federal law of the United States of America and the General Corporation Law of
the State of Delaware.
Based on such counsel's participation in conferences with
officers and other representatives of the Company and of the Master Servicer,
the Special Servicer, the Trustee, the REMIC Administrator, the Underwriters,
the Mortgage Loan Sellers, and their respective counsel, at which the contents
of the Registration Statement and the Prospectus were discussed and, although
such counsel need not pass upon or assume responsibility for the actual
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as stated in paragraphs (xii)
and (xiii) above) and need not make an independent check or verification
thereof, on the basis of the foregoing, such counsel shall also confirm that
nothing has come to the attention of such counsel that would lead such counsel
to believe that the Registration Statement (other than (x) financial
statements, schedules and other numerical, financial and statistical data
included therein or omitted therefrom and (y) the documents incorporated
therein, as to which such counsel need express no opinion), as of its
effective date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of the date of
the Prospectus Supplement and at the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than (x)
financial statements, schedules and other numerical, financial and statistical
data included therein or omitted therefrom and (y) the documents incorporated
therein, as to which such counsel need express no opinion).
(f) The Underwriters shall have received from counsel to
each Mortgage Loan Seller, a letter, dated the Closing Date, and reasonably
satisfactory in form and substance to counsel for each Underwriter, to the
effect that, based on such counsel's participation in conferences with
officers and other representatives of the Company, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Mortgage Loan
Sellers, the Underwriters and their respective counsel, at which the contents
of the Prospectus Supplement were discussed and, although such counsel need
not pass upon or assume responsibility for the actual accuracy, completeness
or fairness of the statements contained in the Prospectus Supplement and need
not make an independent check
-13-
<PAGE>
or verification thereof, nothing has come to the attention of such counsel
that would lead such counsel to believe that the Prospectus Supplement, as of
the date of the Prospectus Supplement and at the Closing Date, insofar as it
relates to the characteristics of the Mortgage Loans sold by such Mortgage
Loan Seller to the Company, the related Mortgaged Properties and/or the
related Borrowers, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (other than financial statements, schedules and other
numerical, financial and statistical data included therein or omitted
therefrom and the documents incorporated therein, as to which such counsel
need express no opinion).
(g) The Underwriters shall have received an opinion of
Cadwalader, Wickersham & Taft, counsel to Goldman, Sachs & Co. ("Goldman"), in
form and substance satisfactory to the Underwriters.
(h) The Underwriters shall have received, with respect to
each of the Master Servicer, the Special Servicer, the REMIC Administrator and
the Trustee, a favorable opinion of counsel, dated the Closing Date and
satisfactory to counsel for each Underwriter, addressing the valid existence
of such party under the laws of the jurisdiction of its organization, the due
authorization, execution and delivery of the Pooling and Servicing Agreement
by such party and, subject to the same limitations as set forth in Section
6(e)(vii), the enforceability of the Pooling and Servicing Agreement against
such party. Such opinion may express its reliance as to factual matters on
representations and warranties made by, and on certificates or other documents
furnished by officers and/or authorized representatives of parties to, this
Agreement and the Pooling and Servicing Agreement and on certificates
furnished by public officials. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than the party on behalf of which such opinion is
being rendered and be based upon such other assumptions as may be reasonably
acceptable to counsel for each of the Underwriters. Such opinion may be
qualified as an opinion only on the laws of the jurisdiction wherein the
subject party is organized, the laws of the State of New York and the federal
law of the United States.
(i) The Underwriters shall have received from Arthur
Andersen LLP, certified public accountants, letters dated the date of the
Preliminary Prospectus Supplement and the Prospectus Supplement, respectively,
and satisfactory in form and substance to the Underwriters and counsel for
each Underwriter, stating in effect that, using the assumptions and
methodology used by the Company, all of which shall be described in such
letters, they have recalculated such numbers and percentages set forth in the
Preliminary Prospectus Supplement and the Prospectus Supplement as the
Underwriters may reasonably request and as are agreed to by Arthur Andersen
LLP, compared the results of their calculations to the corresponding items in
the Preliminary Prospectus Supplement and the Prospectus Supplement,
respectively, and found each such number and percentage set forth in the
Preliminary Prospectus Supplement and the Prospectus Supplement, respectively,
to be in agreement with the results of such calculations.
-14-
<PAGE>
(j) The Underwriters shall have received all opinions,
certificates and other documents required under the Mortgage Loan Sale and
Purchase Agreements to be delivered by the respective Mortgage Loan Sellers
and their counsel in connection with their sales of Mortgage Loans to the
Company, and each such opinion shall be dated the Closing Date and addressed
to the Underwriters.
(k) The Underwriters shall have received all opinions
rendered to the Rating Agencies by counsel to the Company and the Mortgage
Loan Sellers, and each such opinion shall be dated the Closing Date and
addressed to the Underwriters.
(l) The Offered Certificates listed on Schedule II hereto
shall have been rated as indicated on such Schedule by the rating agency or
agencies identified on such Schedule and such ratings shall not have been
rescinded.
(m) All proceedings in connection with the transactions
contemplated by this Agreement, and all documents incident hereto and thereto,
shall be reasonably satisfactory in form and substance to the Underwriters and
counsel for each Underwriter.
(n) Subsequent to the date hereof, there shall not have
occurred any change, or development including a prospective change, in or
affecting the business or properties of the Company which, in the judgment of
the Underwriters after consultation with the Company, materially impairs the
investment quality of the Offered Certificates so as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the Offered
Certificates as contemplated in the Prospectus.
7. Cancellation for Failure to Perform. If any of the
conditions specified in Section 6 shall not have been fulfilled in all
material respects when and as provided by this Agreement, or if any of the
opinions and certificates mentioned in Section 6 or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in
form and substance to the Underwriters and counsel for each Underwriter, this
Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Closing Date by the Underwriters. Notice of
such cancellation shall be given to the Company in writing, or by telephone or
by either telegraph or telecopier confirmed in writing.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls such Underwriter within the meaning
of the Act or the Exchange Act, against any and all losses, claims, damages,
liabilities, costs and expenses, joint or several, to which such Underwriter
or any such controlling person may become subject, under the Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages, liabilities, costs
and expenses (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement
-15-
<PAGE>
of a material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment of or supplement to any such
document, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, and will reimburse each Underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending against such loss, claim,
damage, liability, cost, expense or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability, cost or expense (A) arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter directly for use therein, (B) arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus Supplement or the Prospectus Supplement (or
any amendment thereof or supplement thereto) in reliance upon and in
conformity with (1) the Master Tape (it being acknowledged that the Master
Tape was used to prepare any Preliminary Prospectus Supplement and the
Prospectus Supplement, including, without limitation, Exhibit A-1 and Exhibit
A-2 thereto and the accompanying diskette), (2) the representations and
warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement or (3) any other information
concerning the characteristics of the Mortgage Loans, the Mortgaged Properties
or the Borrowers furnished to the Company by any Mortgage Loan Seller, or (C)
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus Supplement
or the Prospectus Supplement (or any amendment thereof or supplement thereto)
with respect to the Mortgage Loans, the Mortgaged Properties, the Borrowers
and/or the Mortgage Loan Sellers under the headings "Summary of the Prospectus
Supplement--The Mortgage Loans and the Mortgaged Properties", "Risk Factors"
and "Description of the Mortgage Pool" therein or on Exhibit A-1 or Exhibit
A-2 thereto or on the accompanying diskette, or (D) arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Computational Materials or ABS Term Sheets (or any
amendments thereof or supplements thereto) furnished to prospective investors
and made a part of, or incorporated by reference into, the Registration
Statement or in any Preliminary Prospectus or the Prospectus (or any amendment
thereof or supplement thereto) by reason of a filing made pursuant to Section
9 (it being understood and agreed that if any ABS Term Sheet is both
incorporated by reference into the Prospectus or any Preliminary Prospectus
and also actually included therein, this clause (D) is intended solely to
exclude the version of such ABS Term Sheet that is incorporated by reference
therein); and provided, further, that such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling any Underwriter) from whom the person asserting any
such loss, claim, damage, liability, cost or expense purchased the Offered
Certificates which are the subject thereof if such Underwriter did not deliver
to such person a copy of the Prospectus (or the Prospectus as most recently
amended or supplemented) at or prior to the confirmation of the sale of such
Certificates to such person in any case where such delivery is required by the
Act, the Company has previously furnished to such Underwriter copies thereof
in sufficient quantity and the untrue statement or omission of a material
-16-
<PAGE>
fact contained in such Preliminary Prospectus was corrected in the Prospectus
(or the Prospectus as most recently amended or supplemented) and such
correction would have cured the defect giving rise to any such loss, claim,
damage, liability, cost or expense. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, against
any and all losses, claims, damages, liabilities, costs and expenses to which
the Company or any such director, officer or controlling person may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities, costs and expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in (i) any Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment thereof or
supplement thereto), or (ii) any Computational Materials or ABS Term Sheets
(or amendments thereof or supplements thereto) delivered to prospective
investors by such Underwriter and furnished to the Company by such Underwriter
pursuant to or as contemplated by Section 9 and made a part of, or
incorporated by reference in, the Registration Statement or in any Preliminary
Prospectus Supplement or the Prospectus (or any amendment thereof or
supplement thereto) by reason of a filing made pursuant to Section 9, or arise
out of or are based on the omission or alleged omission to state in any such
document a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made (and, in the case of
Computational Materials and ABS Term Sheets, when read in conjunction with the
Prospectus), not misleading; provided, however, that no Underwriter shall be
liable for any such loss, claim, damage, liability, cost or expense that
arises out of an untrue statement or alleged untrue statement or omission or
alleged omission in any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto), including,
without limitation, any ABS Term Sheet actually included therein, except to
the extent that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information relating to such Underwriter furnished to the Company by such
Underwriter directly for use in such document; and provided, further, that no
Underwriter shall be liable to the extent that any loss, claim, damage,
liability, cost or expense arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission in any
Computational Materials or ABS Term Sheets (or any amendment thereof or
supplement thereto) made in reliance upon and in conformity with (A) the
Master Tape (it being acknowledged that the Master Tape was used to prepare
any Computational Materials and ABS Term Sheets), (B) the representations and
warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement or (C) any other information
concerning the characteristics of the Mortgage Loans, the Mortgaged Properties
or the Borrowers furnished to the Underwriters by the Company or any Mortgage
Loan Seller (the error in the Master Tape or any such other information
concerning the characteristics of the Mortgage Loans, the Mortgaged Properties
or the Borrowers or the breach in such representations and warranties that
gave rise to such untrue statement or omission, a "Collateral Error"), except
to the extent that the related Mortgage Loan Seller or the Company notified
such Underwriter in writing of such Collateral Error or provided in written or
electronic form
-17-
<PAGE>
information superseding or correcting such Collateral Error (in any case, a
"Corrected Collateral Error") prior to the time of confirmation of sale to the
person that purchased the Offered Certificates that are the subject of any
such loss, claim, damage, liability, cost or expense, or action in respect
thereof, and such Underwriter failed to deliver to such person corrected
Computational Materials or ABS Term Sheets (or, if the superseding or
correcting information was contained in the Prospectus, failed to deliver to
such person the Prospectus as amended or supplemented) at or prior to
confirmation of such sale to such person. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. For all
purposes of this Agreement, the Company acknowledges that the statements set
forth in the second sentence of the last paragraph of the cover page, the
first two sentences of the last paragraph on page S-3, and the first sentence
of the third paragraph, the first sentence of the fifth paragraph and the
first sentence of the sixth paragraph under the heading "Method of
Distribution" in the Prospectus Supplement and any Preliminary Prospectus
Supplement constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents referred to
in the foregoing indemnity (other than any Computational Materials or ABS Term
Sheets (or amendments thereof or supplements thereto) furnished to the Company
by any Underwriter for filing pursuant to Section 9, any such ABS Term Sheet
to be treated separately from any version thereof actually included in the
Prospectus as described in Section 1(a) hereof), and you confirm that such
statements are correct. Any Computational Materials or ABS Term Sheets (or
amendments thereof or supplements thereto) so furnished to the Company by a
particular Underwriter shall relate exclusively to and be, to the extent
provided herein, the several responsibility of such Underwriter and no other
Underwriter.
(c) Promptly after receipt by an indemnified party under
paragraph (a) or (b) of this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under paragraph (a) or (b) of this Section
8, notify the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
paragraph (a) or (b), as applicable, of this Section 8. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party); provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
-18-
<PAGE>
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel, approved by you
in the case of paragraph (a) of this Section 8 and by the Company in the case
of paragraph (b) of this Section 8, representing the indemnified parties under
such paragraph (a) or (b), as the case may be, who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that,
if clause (i) or (iii) is applicable, such liability shall be only in respect
of the counsel referred to in such clause (i) or (iii). No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 8 (whether
or not the indemnified parties are actual or potential parties thereto),
unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages,
liabilities, costs or expenses referred to in and intended to be covered under
such paragraph (a) or (b), as the case may be, above, then the indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities, costs or expenses as
follows:
(i) in the case of any such losses, claims, damages,
liabilities, costs and expenses (or actions in respect thereof)
referred to in and intended to be covered under paragraph (a) above,
in such proportion so that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount
bears to the sum of such discount and the purchase price of the
Offered Certificates specified in Schedule II hereto and the Company
is responsible for the balance (or, if such allocation is not
permitted by applicable law or if the indemnified party failed to
give the notice required in Section 8(c) or in the last paragraph of
this Section 8(d), in such proportion as would be determined pursuant
to the immediately following clause (ii)); provided, however, that in
no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Offered
Certificates or in Section 8(e)) be responsible under this
subparagraph (i) for any amount in excess of the underwriting
discount applicable to the Offered Certificates purchased by such
Underwriter hereunder; and
(ii) in the case of any losses, claims, damages,
liabilities, costs and expenses (or actions in respect thereof)
referred to in and intended to be covered under paragraph (b)
-19-
<PAGE>
above, in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the Underwriters on the
other in connection with the statement or omissions which resulted in
such losses, claims, damages, liabilities, costs or expenses (or
actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact that is the basis for such loss, claim, damage,
liability, cost or expense, results from information prepared by the
Company on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities, costs or expenses (or actions in respect thereof) referred to
above in this Section 8 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, which expenses the indemnifying party
shall pay as and when incurred, at the request of the indemnified party, to
the extent that the indemnifying party will be ultimately obligated to pay
such expenses. If any expenses so paid by the indemnifying party are
subsequently determined to not be required to be borne by the indemnifying
party hereunder, the indemnified party that received such payment shall
promptly refund the amount so paid to the indemnifying party.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8(d), each person who controls an Underwriter within
the meaning of the Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to the preceding sentence of this Section 8(d). Any party
entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or parties
under this Section 8(d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
liability it or they may have otherwise than under this Section 8(d).
-20-
<PAGE>
(e) The Underwriters further agree as follows:
(i) DLJSC will indemnify and hold harmless Goldman against any
losses, claims, damages, liabilities, costs or expenses to which Goldman may
become subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities, costs or expenses arise out of or are
based upon any untrue statements or alleged untrue statements or omissions or
alleged omissions made in (i) any ABS Term Sheets relating to the Offered
Certificates (or any amendments thereof or supplements thereto) prepared by
DLJSC without Goldman's participation, or (ii) any Computational Materials (or
any amendments thereof or supplements thereto) developed, mailed or otherwise
transmitted by DLJSC, or (iii) any Preliminary Prospectus Supplement or the
Prospectus Supplement (or any amendments thereof or supplements thereto) in
reliance upon and in conformity with written information furnished to the
Company by DLJSC for use in such document; and DLJSC will reimburse Goldman
for any legal or other expenses reasonably incurred thereby in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(ii) Goldman will indemnify and hold harmless DLJSC against any
losses, claims, damages, liabilities, costs or expenses to which DLJSC may
become subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities, costs or expenses arise out of or are
based upon any untrue statements or alleged untrue statements or omissions or
alleged omissions made in (i) any ABS Term Sheets relating to the Offered
Certificates (or any amendments thereof or supplements thereto) prepared by
Goldman without DLJSC's participation, or (ii) any Computational Materials (or
any amendments thereof or supplements thereto) developed, mailed or otherwise
transmitted by Goldman, or (iii) any Preliminary Prospectus Supplement or the
Prospectus Supplement (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by Goldman for use in such document; and Goldman will reimburse DLJSC
for any legal or other expenses reasonably incurred thereby in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(iii) Each Underwriter agrees to pay its proportionate share (based
on its underwriting proportion as set forth in this Agreement) of any losses,
claims, damages, liabilities, costs or expenses, joint or several, under the
Act, the Exchange Act or otherwise, paid by the other Underwriter to any
person or entity (other than to the contributing Underwriter), arising out of
or based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, any Computational Materials or ABS Term Sheets relating to the
Offered Certificates, or any amendment of or supplement to any such document,
or arising out of or based upon the omission or alleged omission to state in
any such document a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(provided that the payment contemplated by this clause (iii)(A) shall not
cover any losses, claims, damages, liabilities, costs or expenses referred to
in and
-21-
<PAGE>
intended to be covered by clause (i) or (ii) of this Section 8(e)); and each
Underwriter will pay such proportionate share of any legal or other expenses
reasonably incurred by the other Underwriter in connection with investigating
or defending any such loss, claim, damage, liability, cost or expense (or any
action in respect thereof). Notwithstanding the foregoing, this clause (iii)
is not intended to cover any losses, claims, damages, liabilities, costs or
expenses referred to in the preceding sentence to the extent that they have
otherwise been covered by any indemnification by or contribution from the
Company or a Mortgage Loan Seller.
(iv) The provisions of Section 8(c) shall apply as between the two
Underwriters with respect to indemnities and payments under this Section 8(e),
except a contributing Underwriter under clause (iii) of this Section 8(e)
cannot assume the defense of any action.
(v) If the indemnities or payments provided in clauses (i), (ii) or
(iii) of this Section 8(e), as the case may be, are unavailable to or, except
in the case of clause (iii) of this Section 8(e), insufficient to hold
harmless an indemnified party or beneficiary under such clause in respect of
any losses, claims, damages, liabilities, costs or expenses (or actions in
respect thereof) referred to therein and intended to be covered thereby, then
the indemnifying or contributing Underwriter shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities, costs or expenses (or actions in respect thereof) in
such proportion as is appropriate to reflect both the relative benefits
received by DLJSC on the one hand and Goldman on the other, in each case as
Underwriter, from the offering of the Offered Certificates, and the relative
fault of DLJSC on the one hand and Goldman on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities, costs or expenses (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by
DLJSC on the one hand and Goldman on the other shall be deemed to be in the
same proportion to the amount of Offered Certificates underwritten by each
such party. The relative fault of DLJSC on the one hand and Goldman on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement or omission or alleged omission relates to
information supplied by DLJSC on the one hand or Goldman on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by
an indemnified party or beneficiary as a result of the losses, claims,
damages, liabilities, costs or expenses (or actions in respect thereof)
referred to above in this clause (y) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party or beneficiary in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this clause (y), neither DLJSC nor Goldman
shall be required to contribute any amount in excess of the amount by which
the total price at which the Offered Certificates underwritten by it and
distributed to the public, were sold, exceeds the amount of any damages which
such party has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11 (f) of the Act)
-22-
<PAGE>
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(vi) The obligations of DLJSC under clauses (i), (iii) and
(v) above shall be in addition to any liability which DLJSC may
otherwise have and shall extend, upon the same terms and conditions,
to each person, if any, who controls Goldman within the meaning of
the Act or the Exchange Act, and the obligations of Goldman under
clauses (ii), (iii) and (v) above shall be in addition to any
liability which Goldman may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls DLJSC
within the meaning of the Act or the Exchange Act.
9. Computational Materials and ABS Term Sheets. (a) Not
later than 10:30 a.m., New York City time, on the date hereof, the Underwriters
shall deliver to the Company and its counsel, as provided below, a complete
copy of all materials provided by the Underwriters to prospective investors in
the Offered Certificates which constitute either (i) "Computational Materials"
within the meaning of the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Commission to Kidder, Peabody
Acceptance Corporation I, Kidder, Peabody & Co. Incorporated, and Kidder
Structured Asset Corporation and the no-action letter dated May 27, 1994
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Kidder Letters ") or (ii) "ABS Term
Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter" and, together with the Kidder
Letters, the "No Action Letters"), if the filing of such materials with the
Commission is a condition of the relief granted in such letters and, in the
case of any such materials that constitute "Collateral Term Sheets" within the
meaning of the PSA Letter, such Collateral Term Sheets have not previously
been delivered to the Company as contemplated by Section 9(b)(i) below. For
purposes of this Agreement, "Structural Term Sheets" shall have the meaning
set forth in the PSA Letter. Each delivery of Computational Materials and/or
ABS Term Sheets to the Company and its counsel pursuant to this paragraph (a)
shall be made in paper form and, in the case of ABS Term Sheets, electronic
format suitable for filing with the Commission.
(b) Each Underwriter represents and warrants to and agrees
with the Company, as of the date hereof and as of the Closing Date, as
applicable, that:
(i) if such Underwriter has provided any Collateral Term
Sheets to potential investors in the Offered Certificates prior to
the date hereof and if the filing of such materials with the
Commission is a condition of the relief granted in the PSA Letter,
then in each such case such Underwriter delivered to the Company and
its counsel, in the manner contemplated by Section 9(a), a copy of
such materials no later than 10:30 a.m., New York City time, on the
first business day following the date on which such materials were
initially provided to a potential investor;
-23-
<PAGE>
(ii) the Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to the Company pursuant to
Section 9(a) or as contemplated in Section 9(b)(i) constitute all of the
materials relating to the Offered Certificates furnished by such Underwriter
(whether in written, electronic or other format) to prospective investors in
the Offered Certificates prior to the date hereof, except for any Preliminary
Prospectus and any Computational Materials and ABS Term Sheets with respect to
the Offered Certificates which are not required to be filed with the
Commission in accordance with the No-Action Letters, and all Computational
Materials and ABS Term Sheets provided by such Underwriter to potential
investors in the Offered Certificates comply with the requirements of the
No-Action Letters;
(iii) on the respective dates any such Computational Materials and/or
ABS Term Sheets with respect to the Offered Certificates referred to in
Section 9(b)(ii) were last furnished by such Underwriter to each prospective
investor, on the date of delivery thereof to the Company pursuant to or as
contemplated by this Section 9 and on the Closing Date, such Computational
Materials and/or ABS Term Sheets did not and will not include any untrue
statement of a material fact or, when read in conjunction with the Prospectus,
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(iv) at the time any Computational Materials or ABS Term Sheets with
respect to the Offered Certificates were furnished to a prospective investor
and on the date hereof, the Underwriters possessed, and on the date of
delivery of such materials to the Company pursuant to or as contemplated by
this Section 9 and on the Closing Date, the Underwriters will possess, the
capability, knowledge, expertise, resources and systems of internal control
necessary to ensure that such Computational Materials and/or ABS Term Sheets
conform to the representations and warranties of the Underwriters contained in
subparagraphs (ii) and (iii) above of this Section 9(b);
(v) all Collateral Term Sheets with respect to the Offered
Certificates furnished by such Underwriter to prospective investors contained
and will contain a legend, prominently displayed on the first page thereof,
indicating that the information contained therein will be superseded by the
description of the Mortgage Loans contained in the Prospectus and, except in
the case of the initial Collateral Term Sheet, that such information
supersedes the information in all prior Collateral Term Sheets;
(vi) all Computational Materials and ABS Term Sheets with respect to
the Offered Certificates furnished by such Underwriter to prospective
investors contained and will contain a legend generally to the effect that the
Company has not participated in the preparation of or authorized the
distribution of such Computational Materials or ABS Term Sheets; and
-24-
<PAGE>
(vii) on and after the date hereof, such Underwriter shall
not deliver or authorize the delivery of any Computational Materials,
ABS Term Sheets or other materials relating to the Offered
Certificates (whether in written, electronic or other format) to any
potential investor unless such potential investor has received a
Prospectus prior to or at the same time as the delivery of such
Computational Materials, ABS Term Sheets or other materials;
provided that the Underwriters make no representation or warranty as to whether
any Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement or omission
resulting directly from any Collateral Error (except any Corrected Collateral
Error, with respect to materials prepared after the receipt by the Underwriters
from the related Mortgage Loan Seller or the Company of notice of such
Corrected Collateral Error or materials superseding or correcting such
Corrected Collateral Error).
(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, it shall be necessary
in the opinion of the Underwriters or counsel for either of them to amend or
supplement the Prospectus as a result of an untrue statement of a material fact
contained in any Computational Materials or ABS Term Sheets provided by the
Underwriters pursuant to or as contemplated by this Section 9 or the omission
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made (and when read in conjunction
with the Prospectus), not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the Exchange Act or the
rules thereunder, the Underwriters, at their expense (such expense to be
allocated between them based on the relative fault of the Underwriters) (or, if
such amendment or supplement is necessary in order for any Current Report to
comply with the Act or the Exchange Act or the rules thereunder, at the expense
of the Company), shall prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and shall distribute
such amendment or supplement to each prospective investor in the Offered
Certificates that received such information being amended or supplemented. The
Company shall have no obligation to file such amendment or supplement if the
Company determines that (i) such amendment or supplement contains any untrue
statement of a material fact or, when read in conjunction with the Prospectus,
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it being
understood, however, that the Company shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this
paragraph (d)) or (ii) such filing is not required under the Act. Each
Underwriter represents and warrants to the Company, as of the date of delivery
of such amendment or supplement to the Company, that such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the Prospectus, omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Notwithstanding the foregoing, none
of the Underwriters make any representation or warranty as to whether any such
amendment or supplement of Computational Materials or ABS Term Sheets with
respect to the Offered Certificates included or will include any untrue
statement resulting directly from any Collateral Error (except any Corrected
Collateral Error,
-25-
<PAGE>
with respect to materials prepared after the receipt by the Underwriters from
the related Mortgage Loan Seller or the Company of notice of such Corrected
Collateral Error or materials superseding or correcting such Corrected
Collateral Error).
(d) If, at any time when a prospectus relating to the
Offered Certificates is required to be delivered under the Act, it shall be
necessary in the opinion of the Company or its counsel to amend or supplement
the Prospectus as a result of an untrue statement of a material fact contained
in any Computational Materials or ABS Term Sheets provided by the Underwriters
pursuant to or as contemplated by this Section 9 or the omission to state
therein a material fact necessary to make the statements therein, in the light
of the circumstances under which they made (and when read in conjunction with
the Prospectus), not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the Exchange Act or
the rules thereunder, the Company promptly will notify each Underwriter of the
necessity of such amendment or supplement, and the Underwriters, at their
expense (such expense to be allocated between them based on the relative fault
of the Underwriters) (or, if such amendment or supplement is necessary in
order for any Current Report to comply with the Act or the Exchange Act or the
rules thereunder, at the expense of the Company), shall prepare and furnish to
the Company for filing with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect such
compliance and shall distribute such amendment or supplement to each
prospective investor in the Offered Certificates that received such
information being amended or supplemented. Each Underwriter represents and
warrants to the Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the
Prospectus, omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, none of the Underwriters make any
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriters from the related
Mortgage Loan Seller or the Company of notice of such Corrected Collateral
Error or materials superseding or correcting such Corrected Collateral Error).
(e) The Underwriters (at their own expense) further agree to
provide to the Company any accountants' letters obtained relating to the
Computational Materials and/or ABS Term Sheets, which accountants' letters
shall be addressed to the Company or shall state that the Company may rely
thereon; provided that the Underwriters shall have no obligation to procure
any such letter.
10. Substitution of Underwriters. (a) If either
Underwriter shall fail to take up and pay for the amount of the Offered
Certificates agreed by such Underwriter to be purchased under this Agreement,
upon tender of such Offered Certificates in accordance with the terms hereof,
and the amount of the Offered Certificates not purchased does not aggregate
more than 10% of the total amount of the Offered Certificates set forth in
Schedule I hereof (based on aggregate purchase price),
-26-
<PAGE>
the remaining Underwriter shall be obligated to take up and pay for the
Offered Certificates that the withdrawing or defaulting Underwriter agreed but
failed to purchase.
(b) If either Underwriter shall fail to take up and pay for
the amount of the Offered Certificates agreed by such Underwriter to be
purchased under this Agreement (such Underwriter being a "Defaulting
Underwriter"), upon tender of such Offered Certificates in accordance with the
terms hereof, and the amount of the Offered Certificates not purchased
aggregates more than 10% of the total amount of the Offered Certificates set
forth in Schedule I hereto (based on aggregate price), and arrangements
satisfactory to the remaining Underwriter and the Company for the purchase of
such Certificates by other persons are not made within 36 hours thereafter,
this Agreement shall terminate. In the event of any such termination, the
Company shall not be under any liability to any Underwriter (except to the
extent provided in Section 5(g) and Section 8 hereof) nor shall any
Underwriter (other than an Underwriter who shall have failed, otherwise than
for some reason permitted under this Agreement, to purchase the amount of the
Offered Certificates such Underwriter agreed to purchase hereunder) be under
any liability to the Company (except to the extent provided in Sections 8 and
9 hereof). Nothing herein shall be deemed to relieve any Defaulting
Underwriter from any liability it may have to the Company or the other
Underwriter by reason of its failure to take up and pay for Offered
Certificates as agreed by such Defaulting Underwriter.
11. Termination Upon the Occurrence of Certain Events. This
Agreement shall be subject to termination in the absolute discretion of the
Underwriters by notice given to the Company prior to delivery of and payment
for all Offered Certificates if prior to such time (i) trading in securities
of the Company or any affiliate on the New York Stock Exchange shall have been
suspended or limited, or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared by either federal
or New York State authorities, or (iii) there shall have occurred any outbreak
or material escalation of hostilities or other calamity or crisis, the effect
of which on the financial markets of the United States is such as to make it,
in the judgment of the Underwriters, impractical to market the Offered
Certificates.
12. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to
in Section 8 hereof, and will survive delivery of and payment for the Offered
Certificates. The provisions of Sections 5(g), 1, 8 and 9 hereof shall survive
the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Underwriters, will be
mailed, delivered or either telegraphed or transmitted by telecopier and
confirmed to them at the addresses set forth on Schedule I hereto (or, in the
case of any Underwriter, at such other address as may be furnished by such
Underwriter to the Company and DLJ Mortgage Capital, Inc. (the "Additional
Party") in accordance with this Section 13); or, if sent to the Company, will
be mailed, delivered or either telegraphed or transmitted by
-27-
<PAGE>
telecopier and confirmed to it at 277 Park Avenue, 9th Floor, New York, New
York 10172, Attention: N. Dante LaRocca (or at such other address as may be
furnished by the Company to each Underwriter in accordance with this Section
13); or, if sent to the Additional Party, will be mailed, delivered or either
telegraphed or transmitted by telecopier and confirmed to it at 277 Park
Avenue, 9th Floor, New York, New York 10172, Attention: N. Dante LaRocca (or
at such other address as may be furnished by the Additional Party to each
Underwriter in accordance with this Section 13).
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof,
and their successors, heirs and legal representatives, and no other person
will have any right or obligation hereunder.
15. Applicable Law; Counterparts. This Agreement will be
governed by and construed in accordance with the substantive laws of the State
of New York applicable to agreements made and to be performed entirely in said
State. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which
shall together constitute but one and the same instrument.
16. Obligations of the Additional Party. The Additional
Party agrees, in consideration of and as an inducement to the Underwriters'
purchase of the Offered Certificates from the Company, to indemnify and hold
harmless each Underwriter, and each person who controls each Underwriter
within the meaning of the Act or the Exchange Act, against any failure by the
Company to perform any of its obligations under Section 8 hereof (as they
relate to the indemnity agreement of the Company in Section 8(a) and the
corresponding contribution obligations in Section 8(d) (the "Covered
Obligation )), promptly after receipt from any Underwriter of written notice
of any such failure. The Additional Party hereby waives notice of acceptance
of its obligations hereunder and notice of any obligation or liability to
which it may apply, and waives presentment, demand for payment, protest,
notice of dishonor or non-payment of any such obligation or liability, suit or
the taking of other action by any party hereto against, and any other notice
to, the Additional Party. The Additional Party's obligations hereunder shall
not be affected by any events, occurrences or circumstances which might
otherwise constitute a legal or equitable discharge or defense of a guarantor
or surety, and such obligations will only be discharged by full, complete and
final payment of the Covered Obligations.
[SIGNATURE PAGE FOLLOWS]
-28-
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Additional Party and the several Underwriters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
By: /s/ N. Dante LaRocca
-------------------------------------
Name: N. Dante LaRocca
Title: Senior Vice President
DLJ MORTGAGE CAPITAL, INC.*
By: /s/ N. Dante LaRocca
-------------------------------------
Name: N. Dante LaRocca
Title: Senior Vice President
Accepted at New York, New York as of the date first written above.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ N. Dante LaRocca
-------------------------------------
Name: N. Dante LaRocca
Title: Senior Vice President
Accepted at New York, New York
as of the date first written above.
GOLDMAN, SACHS & CO.
By: /s/ Rolf Edwards
-------------------------------------
Name: Rolf Edwards
Title: Attorney-In-Fact
DLJ Mortgage Capital, Inc. is executing this Underwriting Agreement
solely with respect to its obligations set forth in Section 16 and
with respect to the matters set forth in Section 12, Section 13,
Section 14 and Section 15.
<PAGE>
SCHEDULE I
Principal or Notional
Amount of Relevant
Class of Offered
Underwriters (and addresses) Class Certificates to be Purchased
---------------------------- ----- ----------------------------
Donaldson, Lufkin & Jenrette Class S $755,214,803(l)
Securities Corporation Class A-I A $120,805,000
277 Park Avenue Class A-IB $445,101,500
New York, New York 10172 Class A-2 $34,884,500
Attention: N. Dante LaRocca Class A-3 $40,699,000
Class A-4 $9,690,000
Class B-1 $29,070,500
Class B-2 $11,628,500
Goldman, Sachs & Co. Class S $755,214,803(1)
85 Broad Street Class A- I A $120,805,000
New York, NY 10004 Class A- I B $445,101,500
Class A-2 $34,884,500
Class A-3 $40,699,000
Class A-4 $9,690,000
Class B- 1 $29,070,500
Class B-2 $11,628,500
- ------------
(1) Notional Amount
<PAGE>
SCHEDULE II
Registration Statement No. 333-59167
Basic Prospectus dated June 3, 1999
Prospectus Supplement dated June 11, 1999
Title of Offered Certificates Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2, Class S,
Class A- I A, Class A- I B,
Class A-2, Class A-3, Class A-4,
Class B-I and Class B-2
Cut-off Date: June 1, 1999
Closing: 10:00 a.m. on June 22, 1999
at the offices of
Sidley & Austin
875 Third Avenue
New York, New York 10022
<PAGE>
Schedule II (continued)
<TABLE>
<CAPTION>
Initial
Aggregate Certificate
Principal Balance
or Notional Initial Purchase
Class Designation Amount of Class(1) Pass-Through Rate Price(2) Rating(3)
----------------- ------------------ ----------------- --------- ---------
<S> <C> <C> <C> <C>
Class S $1,550,429,606 0.4577% 3.359375% Aaa/AAA
Class A-I A $241,610,000 6.8800% 100.515625% Aaa/AAA
Class A-I B $890,203,000 7.3000% 101.500000% Aaa/AAA
Class A-2 $69,769,000 7.4500% 101.515625% Aa2/AA
Class A-3 $81,398,000 7.6067% 101.500000% A2/AA
Class A-4 $19,380,000 7.6067% 101.359375% A3/A
Class B-1 $58,141,000 7.6067% 99.328125% Baa2/BBB
Class B-2 $23,257,000 7.6067% 93.875000% Baa2/BBB-
</TABLE>
(1) Plus or minus a permitted variance of 5%.
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Offered Certificates to be purchased.
The purchase price for each class of the Offered Certificates will include
accrued interest at the initial Pass-Through Rate therefor on the aggregate
stated or notional amount, as applicable, thereof to be purchased from the
Cut-off Date to but not including the Closing Date.
(3) By each of Moody's Investors Service, Inc. and Fitch IBCA, Inc.,
respectively
(4) Aggregate Notional Amount.
<PAGE>
[LETTERHEAD OF SIDLEY & AUSTIN]
June 11, 1999
DLJ Commercial Mortgage Corp.
277 Park Avenue
New York, NY 10172
Dear Sirs:
Reference is made to the prospectus supplement dated June 3, 1999 (the
"Prospectus Supplement") and the accompanying prospectus (the "Prospectus")
dated June 3, 1999, relating to the offering of eight classes of DLJ Commercial
Mortgage Trust 1999-CG2, Commercial Mortgage Pass-Through Certificates, Series
1999-CG2 (the "Offered Certificates").
We have acted as tax counsel to DLJ Commercial Mortgage Corp. (the
"Company") in connection with the issuance of the Offered Certificates. We have
reviewed the statements under the heading "Federal Income Tax Consequences" in
the Prospectus and the Prospectus Supplement; and, to the extent they constitute
matters of Federal tax law or legal conclusions with respect thereto, we hereby
confirm our opinion that such statements while not discussing all possible
consequences of an investment in the Offered Certificates to all investors, are
correct in all material respects and constitute our opinion regarding such
matters of Federal tax law. In rendering this opinion, we have relied without
independent investigation on the description of the Offered Certificates set
forth in the Prospectus Supplement. We hereby consent to the filing of this
opinion as part of the Company's Registration Statement on Form S-3 (No.
333-59167) as an exhibit to a Current Report on Form 8K.
We assume no obligation to update or supplement this letter to reflect
any facts or circumstances which may hereafter come to our attention with
respect to the opinion expressed above, including any changes in applicable law
which may hereafter occur.
Very truly yours,
/s/ Sidley & Austin
