SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report: July 29, 1999,
(Date of earliest event reported)
Morgan Stanley Capital I Inc.
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(Exact name of registrant as specified in its charter)
Delaware 333-62911-04 13-3291626
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
1585 Broadway, New York, N.Y. 10036
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 761-4000
<PAGE>
ITEM 5. OTHER EVENTS.
Attached as Exhibit 1 is the Pooling and Servicing Agreement (as
defined below) for the Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-CAM1 (the "Certificates"). On July 21,
1999, Morgan Stanley Capital I Inc. (the "Company") caused the issuance of the
Certificates, pursuant to a Pooling and Servicing Agreement dated as of July 1,
1998 (the "Pooling and Servicing Agreement") by and among the Company, Conning
Asset Management Company, as master servicer and special servicer, and The Chase
Manhattan Bank, as trustee, in twenty-one classes: the Class A-1, Class A-2,
Class A-3, Class A-4, Class X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
R-I, Class R-II and Class R-III Certificates.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
Item 601(a) of
Regulation S-K
Exhibit No. Exhibit No. Description
----------- ----------- -----------
1 4 Pooling and Servicing Agreement dated
as of July 1, 1999.
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on behalf of the
Registrant by the undersigned thereunto duly authorized.
MORGAN STANLEY CAPITAL I INC.
By: /s/Russell Rahbany
--------------------------
Name: Russell Rahbany
Title: Vice President
Date: July 29, 1999
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MORGAN STANLEY CAPITAL I INC.,
as Depositor,
and
CONNING ASSET MANAGEMENT COMPANY,
as Master Servicer and Special Servicer,
and
THE CHASE MANHATTAN BANK,
as Trustee,
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POOLING AND SERVICING AGREEMENT
Dated as of July 1, 1999
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COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-CAM1
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<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
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<S> <C>
ARTICLE I--DEFINITIONS.........................................................................................
Section 1.1 Definitions................................................................................
Section 1.2 Calculations Respecting Mortgage Loans.....................................................
Section 1.3 Calculations Respecting Accrued Interest...................................................
Section 1.4 Interpretation.............................................................................
ARTICLE II--DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES..................................................................
Section 2.1 Conveyance of Mortgage Loans...............................................................
Section 2.2 Acceptance by Trustee......................................................................
Section 2.3 Sellers'Repurchase of Mortgage Loans for Document Defects and Breaches of
Representations and Warranties...........................................................
Section 2.4 Representations and Warranties.............................................................
Section 2.5 Conveyance of Interests....................................................................
ARTICLE III--THE CERTIFICATES..................................................................................
Section 3.1 The Certificates...........................................................................
Section 3.2 Registration...............................................................................
Section 3.3 Transfer and Exchange of Certificates......................................................
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates..........................................
Section 3.5 Persons Deemed Owners......................................................................
Section 3.6 Access to List of Certificateholders'Names and Addresses...................................
Section 3.7 Book-Entry Certificates....................................................................
Section 3.8 Notices to Clearing Agency.................................................................
Section 3.9 Definitive Certificates....................................................................
ARTICLE IV--ADVANCES 67
Section 4.1 P&I Advances by Master Servicer............................................................
Section 4.2 Servicing Advances.........................................................................
Section 4.3 Advances by the Trustee....................................................................
Section 4.4 Evidence of Nonrecoverability..............................................................
Section 4.5 Interest on Advances; Calculation of Outstanding Advances with Respect to a Mortgage
Loan.....................................................................................
Section 4.6 Reimbursement of Advances and Advance Interest.............................................
ARTICLE V--ADMINISTRATION OF THE TRUST.........................................................................
Section 5.1 Collections................................................................................
Section 5.2 Application of Funds in the Certificate Account and Interest Reserve Account...............
Section 5.3 Distribution Account.......................................................................
Section 5.4 Trustee Reports............................................................................
Section 5.5 Trustee Tax Reports........................................................................
ARTICLE VI--DISTRIBUTIONS......................................................................................
Section 6.1 Distributions Generally....................................................................
Section 6.2 REMIC I....................................................................................
Section 6.3 REMIC II...................................................................................
Section 6.4 REMIC III..................................................................................
Section 6.5 Allocation of Realized Losses, Expense Losses and Shortfalls Due to
Nonrecoverability........................................................................
Section 6.6 Net Aggregate Prepayment Interest Shortfalls...............................................
Section 6.7 Adjustment of Servicing Fees...............................................................
Section 6.8 Appraisal Reductions.......................................................................
Section 6.9 Compliance with Withholding Requirements...................................................
Section 6.10 Prepayment Premiums........................................................................
ARTICLE VII--CONCERNING THE TRUSTEE............................................................................
Section 7.1 Duties of Trustee..........................................................................
Section 7.2 Certain Matters Affecting the Trustee......................................................
Section 7.3 The Trustee Not Liable for Certificates or Interests or Mortgage Loans.....................
Section 7.4 The Trustee May Own Certificates...........................................................
Section 7.5 Eligibility Requirements for the Trustee...................................................
Section 7.6 Resignation and Removal of the Trustee.....................................................
Section 7.7 Successor Trustee..........................................................................
Section 7.8 Merger or Consolidation of Trustee.........................................................
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or Custodian...........................
Section 7.10 Authenticating Agents......................................................................
Section 7.11 Indemnification of Trustee.................................................................
Section 7.12 Fees and Expenses of Trustee...............................................................
Section 7.13 Collection of Moneys.......................................................................
Section 7.14 Trustee To Act; Appointment of Successor...................................................
Section 7.15 Notification to Holders....................................................................
Section 7.16 Representations and Warranties of the Trustee..............................................
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Trustee..........
ARTICLE VIII--ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...................................................
Section 8.1 Servicing Standard; Servicing Duties.......................................................
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Master
Servicer.................................................................................
Section 8.3 Master Servicer's General Power and Duties.................................................
Section 8.4 Sub-Servicing..............................................................................
Section 8.5 Master Servicer May Own Certificates.......................................................
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and Other..........................
Section 8.7 Enforcement of Due-On-Sale and Due-on-Encumbrance Clauses; Assumption Agreements...........
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files....................................
Section 8.9 Documents, Records and Funds in Possession of Master Servicer to be Held for the
Trustee for the Benefit of the Certificateholders........................................
Section 8.10 Servicing Compensation.....................................................................
Section 8.11 Master Servicer Reports; Account Statements................................................
Section 8.12 Annual Statement as to Compliance..........................................................
Section 8.13 Annual Independent Public Accountants'Servicing Report.....................................
Section 8.14 Annual Reports Regarding the Mortgaged Properties..........................................
Section 8.15 Other Available Information and Certain Rights of the Trustee and the Master
Servicer.................................................................................
Section 8.16 Rule 144A Information......................................................................
Section 8.17 Inspections................................................................................
Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents................................
Section 8.19 Specially Serviced Mortgage Loans..........................................................
Section 8.20 Representations, Warranties and Covenants of the Master Servicer...........................
Section 8.21 Merger or Consolidation....................................................................
Section 8.22 Resignation of Master Servicer.............................................................
Section 8.23 Assignment or Delegation of Duties by Master Servicer......................................
Section 8.24 Limitation on Liability of the Master Servicer and Others..................................
Section 8.25 Indemnification; Third-Party Claims........................................................
Section 8.26 Exchange Act Reporting.....................................................................
Section 8.27 Compliance with REMIC Provisions...........................................................
Section 8.28 Termination................................................................................
Section 8.29 Procedure Upon Termination.................................................................
ARTICLE IX--ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER..............
Section 9.1 Duties of Special Servicer.................................................................
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of Special Servicer................
Section 9.3 Sub-Servicers..............................................................................
Section 9.4 Special Servicer General Powers and Duties.................................................
Section 9.5 "Due-on-Sale"and "Due-on-Encumbrance"Clauses; Assignment and Assumption Agreements;
Modifications of Specially Serviced Mortgage Loans.......................................
Section 9.6 Release of Mortgage Files..................................................................
Section 9.7 Documents, Records and Funds in Possession of Special Servicer To Be Held for the
Trustee..................................................................................
Section 9.8 Representations, Warranties and Covenants of the Special Servicer..........................
Section 9.9 Standard Hazard, Flood and Comprehensive General Liability Insurance Policies..............
Section 9.10 Presentment of Claims and Collection of Proceeds...........................................
Section 9.11 Compensation to the Special Servicer.......................................................
Section 9.12 Realization Upon Defaulted Mortgage Loans..................................................
Section 9.13 Foreclosure................................................................................
Section 9.14 Operation of REO Property..................................................................
Section 9.15 Sale of REO Property.......................................................................
Section 9.16 Realization on Collateral Security.........................................................
Section 9.17 Sale of Defaulted Mortgage Loans...........................................................
Section 9.18 Annual Officer's Certificate as to Compliance..............................................
Section 9.19 Annual Independent Accountants'Servicing Report............................................
Section 9.20 Merger or Consolidation....................................................................
Section 9.21 Resignation of Special Servicer............................................................
Section 9.22 Assignment or Delegation of Duties by Special Servicer.....................................
Section 9.23 Limitation on Liability of the Special Servicer and Others.................................
Section 9.24 Indemnification; Third-Party Claims........................................................
Section 9.25 [RESERVED.]................................................................................
Section 9.26 Special Servicer May Own Certificates......................................................
Section 9.27 Tax Reporting..............................................................................
Section 9.28 Application of Funds Received..............................................................
Section 9.29 Compliance with REMIC Provisions...........................................................
Section 9.30 Termination................................................................................
Section 9.31 Procedure Upon Termination.................................................................
Section 9.32 Certain Special Servicer Reports...........................................................
Section 9.33 Special Servicer to Cooperate with the Master Servicer.....................................
Section 9.34 [RESERVED.]................................................................................
Section 9.35 [RESERVED.]................................................................................
Section 9.36 Sale of Defaulted Mortgage Loans and REO Properties........................................
Section 9.37 Operating Adviser; Elections...............................................................
Section 9.38 Limitation on Liability of Operating Adviser...............................................
Section 9.39 Duties of Operating Adviser................................................................
ARTICLE X--PURCHASE AND TERMINATION OF THE TRUST...............................................................
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans..................
Section 10.2 Procedure Upon Termination of Trust........................................................
Section 10.3 Additional Trust Termination Requirements..................................................
ARTICLE XI--RIGHTS OF CERTIFICATEHOLDERS.......................................................................
Section 11.1 Limitation on Rights of Holders............................................................
Section 11.2 Access to List of Holders..................................................................
Section 11.3 Acts of Holders of Certificates............................................................
ARTICLE XII--REMIC ADMINISTRATION..............................................................................
Section 12.1 REMIC Administration.......................................................................
Section 12.2 Prohibited Transactions and Activities.....................................................
Section 12.3 Modifications of Mortgage Loans............................................................
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC Status...........................
ARTICLE XIII--MISCELLANEOUS PROVISIONS.........................................................................
Section 13.1 Binding Nature of Agreement................................................................
Section 13.2 Entire Agreement...........................................................................
Section 13.3 Amendment..................................................................................
Section 13.4 GOVERNING LAW..............................................................................
Section 13.5 Notices....................................................................................
Section 13.6 Severability of Provisions.................................................................
Section 13.7 Indulgences; No Waivers....................................................................
Section 13.8 Headings Not to Affect Interpretation......................................................
Section 13.9 Benefits of Agreement......................................................................
Section 13.10 Special Notices to the Rating Agencies.....................................................
Section 13.11 Counterparts...............................................................................
Section 13.12 Intention of Parties.......................................................................
Section 13.13 Recordation of Agreement...................................................................
Section 13.14 Rating Agency Monitoring Fees..............................................................
</TABLE>
Exhibits and Schedules
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Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-4 Certificate
Exhibit A-5 Form of Class B Certificate
Exhibit A-6 Form of Class C Certificate
Exhibit A-7 Form of Class D Certificate
Exhibit A-8 Form of Class E Certificate
Exhibit A-9 Form of Class F Certificate
Exhibit A-10 Form of Class G Certificate
Exhibit A-11 Form of Class H Certificate
Exhibit A-12 Form of Class J Certificate
Exhibit A-13 Form of Class K Certificate
Exhibit A-14 Form of Class L Certificate
Exhibit A-15 Form of Class M Certificate
Exhibit A-16 Form of Class N Certificate
Exhibit A-17 Form of Class O Certificate
Exhibit A-18 Form of Class R-I Certificate
Exhibit A-19 Form of Class R-II Certificate
Exhibit A-20 Form of Class R-III Certificate
Exhibit A-21 Form of Class X Certificate
Exhibit B-1 Form of Initial Certification of Trustee
Exhibit B-2 Form of Final Certification of Trustee
Exhibit C Form of Request for Release
Exhibit D-1 Form of Transferor Certificate for Transfers of Definitive
Privately Offered Certificates
Exhibit D-2A Form I of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates
Exhibit D-2B Form II of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates
Exhibit D-3A Form I of Transferee Certificate for Transfers of
Interests in Book-Entry Privately Offered Certificates
Exhibit D-3B Form II of Transferee Certificate for Transfers of Interests
in Book-Entry Privately Offered Certificates
Exhibit E-1 Form of Transfer Affidavit and Agreement for Transfers of
REMIC Residual Certificates
Exhibit E-2 Form of Transferor Certificate for Transfers of REMIC
Residual Certificates
Exhibit F Form of Regulation S Certificate
Exhibit G Reserved
Exhibit H Form of Exchange Certification
Exhibit I Form of Euroclear or CEDEL Certificate
Exhibit J Servicing Fee Schedule
Exhibit K Reserved
Exhibit L Form of Inspection Report
Exhibit M Form of Monthly Certificateholder Report
Exhibit N Form of Annual Report
Exhibit O Form of Special Servicer Monthly Report
Exhibit P Reserved
Exhibit Q Form of Mortgage Loan Information
Exhibit R-1 Representations and Warranties of General American in
Respect of General American Loans
Exhibit R-2 Representations and Warranties of Retirement System in
Respect of Retirement System Loans
Exhibit S-1 Form of Power of Attorney for Master Servicer
Exhibit S-2 Form of Power of Attorney for Special Servicer
Exhibit T Procedures for Calculating Debt Service Coverage Ratio
Schedule I General American Loan Schedule
Schedule II Retirement System Loan Schedule
<PAGE>
THIS POOLING AND SERVICING AGREEMENT is dated as of July 1,
1999 (this "Agreement") among MORGAN STANLEY CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), CONNING ASSET MANAGEMENT COMPANY,
as master servicer (the "Master Servicer") and special servicer (the "Special
Servicer") and THE CHASE MANHATTAN BANK, as trustee of the Trust (the
"Trustee").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage
Loans from General American Life Insurance Company, as seller ("General
American"), and City and County of San Francisco Employees' Retirement System
Pension Trust, as seller ("Retirement System"), and will be the owner of the
Mortgage Loans and the other property being conveyed by it to the Trustee for
inclusion in the Trust which is hereby created. On the Closing Date, the
Depositor will acquire (i) the REMIC I Regular Interests and the Class R-I
Certificate as consideration for its transfer to the Trust of the Mortgage Loans
and the other property constituting the Trust; (ii) the REMIC II Regular
Interests and the Class R-II Certificates as consideration for its transfer of
the REMIC Regular I Interests to the Trust; and (iii) the REMIC III Certificates
as consideration for its transfer of the REMIC II Regular Interests to the
Trust. The Depositor has duly authorized the execution and delivery of this
Agreement to provide for the foregoing and the issuance of (A) the REMIC I
Regular Interests and the Class R-I Certificates representing in the aggregate
the entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests
and the Class R-II Certificates representing in the aggregate the entire
beneficial ownership of REMIC II and (C) the REMIC III Certificates representing
in the aggregate the entire beneficial ownership of REMIC III. All covenants and
agreements made by the Depositor and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust are for the benefit
of the Holders of the REMIC I Regular Interests, the REMIC II Regular Interests,
the Residual Certificates, and REMIC Regular Certificates. The parties hereto
are entering into this Agreement, and the Trustee is accepting the trusts
created hereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
The Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class
C, Class D, Class E and Class F Certificates have been offered for sale pursuant
to the prospectus (the "Prospectus") dated June 28, 1999, as supplemented by the
preliminary prospectus supplement dated June 28, 1999 (together with the
Prospectus, the "Preliminary Prospectus Supplement") and as further supplemented
by the final prospectus supplement dated July 9, 1999 (together with the
Prospectus, the "Final Prospectus Supplement") and the Class X, Class G, Class
H, Class J, Class K, Class L, Class M, Class N and Class O Certificates have
been offered for sale pursuant to the Private Placement Memorandum dated July 9,
1999 (the "Private Placement Memorandum").
The following sets forth the Class designation, Pass-Through
Rate, initial Aggregate Certificate Balance (or initial Notional Amount) and
Final Scheduled Distribution Date for each Class of REMIC I Regular Interests
and the Class R-I Certificates comprising the interests in REMIC I, each Class
of REMIC II Regular Interests and the Class R-II Certificate comprising the
interests in REMIC II and each Class of REMIC III Certificates comprising the
interests in REMIC III created hereunder:
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I
Regular Interest") will relate to a specific Mortgage Loan. Each Corresponding
REMIC I Regular Interest, will have a pass-through rate equal to the REMIC I Net
Mortgage Rate of the related Mortgage Loan, an initial principal amount (the
initial "Certificate Balance") equal to the Scheduled Principal Balance as of
the Cut-Off Date (as herein defined) of the Mortgage Loan to which the
Corresponding REMIC I Regular Interest relates, and a latest possible maturity
date set to the Maturity Date (as defined herein) of the Mortgage Loan to which
the Corresponding REMIC I Regular Interest relates. The Class R-I Certificate
will be designated as the sole Class of residual interests in REMIC I and will
have no Certificate Balance and no Pass-Through Rate, but will be entitled to
receive the proceeds of any assets remaining in REMIC I after all classes of
REMIC I Regular Interests have been paid in full.
REMIC II
The REMIC II Regular Interests, have the pass-through rates
and Certificate Balances set forth in the definition thereof. The Class R-II
Certificate will be designated as the sole Class of residual interests in REMIC
II and will have no Certificate Balance and no Pass-Through Rate, but will be
entitled to receive the proceeds of any assets remaining in REMIC II after all
classes of REMIC II Regular Interests have been paid in full.
<PAGE>
REMIC III
<TABLE>
<CAPTION>
Initial Aggregate
Initial Certificate
Pass-Through Principal or Final Scheduled Final Rated
Designation Rate(a) Notional Amount Distribution Date(b) Distribution Date(c)
----------- ------- --------------- -------------------- --------------------
<S> <C> <C> <C> <C>
Class A-1 6.54000% $95,763,000 April 2004 March 2032
Class A-2 6.76000% $180,000,000 November 2008 March 2032
Class A-3 6.92000% $167,680,000 November 2008 March 2032
Class A-4 7.02000% $205,751,000 November 2009 March 2032
Class X 0.61555% $806,455,937 September 2018 March 2032
Class B 7.12000% $26,209,000 December 2010 March 2032
Class C 7.36995% $26,210,000 December 2011 March 2032
Class D 7.49995% $12,097,000 May 2012 March 2032
Class E 7.49995% $20,161,000 June 2013 March 2032
Class F 7.49995% $8,065,000 September 2013 March 2032
Class G 6.54000% $14,113,000 January 2014 March 2032
Class H 6.54000% $14,112,000 July 2014 March 2032
Class J 6.54000% $6,049,000 January 2015 March 2032
Class K 6.54000% $8,064,000 November 2015 March 2032
Class L 6.54000% $6,049,000 May 2016 March 2032
Class M 6.54000% $6,048,000 June 2017 March 2032
Class N 6.54000% $4,032,000 January 2018 March 2032
Class O 6.54000% $6,052,937 September 2018 March 2032
Class R-III(d) N/A N/A N/A N/A
</TABLE>
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate."
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is expected
to be paid in full, assuming that timely payments (and no prepayments) will
be made on the Mortgage Loans in accordance with their terms.
(c) The Final Rated Distribution Date for each Class of Certificates is the
Distribution Date in March 2032. That date is approximately 36 months
following the end of the amortization term of the Mortgage Loan that, as of
the Closing Date, has the longest remaining amortization term.
(d) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all
Classes of Certificates have been reduced to zero.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $806,455,937.
As provided herein, with respect to the Trust, the Trustee
will make an election for the segregated pool of assets described in the first
paragraph of Section 12.1(a) hereof (including the Mortgage Loans) to be treated
for federal income tax purposes as a real estate mortgage investment conduit
("REMIC I"). The REMIC I Regular Interests will be designated as the "regular
interests" in REMIC I and the Class R-I Certificates will be designated as the
sole Class of "residual interests" in REMIC I.
As provided herein, with respect to the Trust, the Trustee
will make an election for the segregated pool of assets described in the second
paragraph of Section 12.1(a) hereof consisting of the REMIC I Regular Interests
to be treated for federal income tax purposes as a real estate mortgage
investment conduit ("REMIC II"). The REMIC II Regular Interests will be
designated as the "regular interests" in REMIC II and the Class R-II
Certificates will be designated as the sole Class of "residual interests" in
REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Trustee
will make an election for the segregated pool of assets described in the third
paragraph of Section 12.1(a) hereof consisting of the REMIC II Regular Interests
to be treated for federal income tax purposes as a real estate mortgage
investment conduit ("REMIC III"). The Class A-1, Class A-2, Class A-3, Class
A-4, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N and Class O Certificates will be
designated as the "regular interests" in REMIC III and the Class R-III
Certificates (together with the REMIC Regular Certificates, the "REMIC III
Certificates") will be designated as the sole Class of "residual interests" in
REMIC III for purposes of the REMIC Provisions.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"ACCOUNTANT" means a person engaged in the practice of
accounting who is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each
Distribution Date and any Class of Interests or Certificates, other than the
Class X Certificates, the Class R-I Certificates, the Class R-II Certificates
and the Class R-III Certificates, interest accrued during the Interest Accrual
Period relating to such Distribution Date on the aggregate Certificate Balance
of such Class or Interest as of the close of business on the immediately
preceding Distribution Date at the respective rates per annum set forth in the
definition of the applicable Pass-Through Rate for each such Class. Accrued
Certificate Interest on the Class X Certificates for each Distribution Date will
equal the Class X Interest Amount.
"ACQUISITION DATE" means the date upon which, under the Code
(and in particular the REMIC Provisions and Section 856(e) of the Code), the
Trust or a REMIC Pool is deemed to have acquired a Mortgaged Property.
"ADDITIONAL TRUST EXPENSE" means any of the following items:
(i) Special Servicing Fees and Liquidation Fees (to the extent not collected
from the related Mortgagor), (ii) Advance Interest that has been determined to
be non-recoverable based on a Final Recovery Determination; (iii) amounts paid
from the Trust to indemnify the Master Servicer, Special Servicer or Trustee (or
any other Person) pursuant to the terms of this Agreement; (iv) to the extent
not otherwise paid, any federal, state, or local taxes imposed on the Trust or
its assets and paid from amounts on deposit in the Certificate Account or
Distribution Account, (v) the amount of any Advance that is not recovered from
the proceeds of a Mortgage Loan upon a Final Recovery Determination and (vi) to
the extent not included in the calculation of a Realized Loss and not covered by
indemnification by one of the parties hereto or otherwise, any other
unanticipated cost, liability, or expense (or portion thereof) of the Trust
(including costs of collecting such amounts or other Additional Trust Expenses)
which the Trust has not recovered, and in the judgment of the Master Servicer
(or Special Servicer, in the case of a Specially Serviced Mortgage Loan) will
not, recover from the related Mortgagor or Mortgaged Property or otherwise,
including a Modification Loss described in clause (ii) of the definition
thereof. Notwithstanding anything to the contrary, "Additional Trust Expenses"
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.
"ADMINISTRATIVE COST RATE" means the sum of the Servicing Fee
Rate, the Trustee Fee Rate and the Excess Servicing Fee Rate for any month (in
each case, expressed as a per annum rate) for any Mortgage Loan in such month.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the Master
Servicer or the Trustee on outstanding Advances pursuant to Section 4.5 of this
Agreement.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate
as published in the "Money Rates" section of The Wall Street Journal from time
to time or such other publication as determined by the Trustee in its reasonable
discretion.
"ADVANCE REPORT DATE" means 4:00 p.m. New York City time on
the Business Day prior to each Distribution Date.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC as a REMIC or (ii) subject to Section 9.14(e), result in
the imposition of a tax upon the income of any REMIC or any of their respective
assets or transactions, including (without limitation) the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth in Section 860G(d) of the Code.
"AFFILIATE" means, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the
Certificate Balances of the REMIC III Certificates, the REMIC I Interests or the
REMIC II Interests, as the case may be, at any date of determination. With
respect to a Class of Certificates or Interests, Aggregate Certificate Balance
shall mean the aggregate of the Certificate Balances of all Certificates or
Interests, as the case may be, of that Class at any date of determination or by
Percentage Interest, in the case of the Class R-I, Class R-II or Class R-III
Certificates.
"AGGREGATE PRINCIPAL BALANCE" means, at the time of any
determination and as the context may require, the aggregate of the Scheduled
Principal Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANNUAL REPORT" means a report substantially in the form of
Exhibit N.
"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan,
not later than the earliest of (i) the date 60 days after the occurrence of any
delinquency in payment with respect to such Mortgage Loan if such delinquency
remains uncured, (ii) the date 30 days after receipt of notice that the related
Mortgagor has filed a bankruptcy petition or the related Mortgagor has become
the subject of involuntary bankruptcy proceedings or the related Mortgagor has
consented to the filing of a bankruptcy proceeding against it or a receiver is
appointed in respect of the related Mortgaged Property, provided such petition
or appointment is still in effect, (iii) the effective date of any modification
to a Money Term of a Mortgage Loan, other than an extension of the due date that
a Balloon Payment is due for a period of less than six months, and (iv) the date
30 days following the date the related Mortgaged Property becomes an REO
Property.
"APPRAISAL REDUCTION" means, with respect to any Required
Appraisal Loan with respect to which an Appraisal or internal valuation is
performed pursuant to Section 6.8, an amount equal to the excess of (A) the sum,
as of the first Determination Date that is at least 15 days after the date on
which the Appraisal or internal valuation is obtained or performed, of (i) the
Scheduled Principal Balance of such Mortgage Loan (or, in the case of an REO
Property, the related REO Mortgage Loan), (ii) to the extent not previously
advanced, all unpaid interest on such Mortgage Loan at a per annum rate equal to
the Mortgage Rate, (iii) all unreimbursed Advances and interest on Advances at
the Advance Rate with respect to such Mortgage Loan, and (iv) to the extent
funds on deposit in any applicable Escrow Accounts are not sufficient therefor,
all currently due and unpaid real estate taxes and assessments, insurance
premiums and, if applicable, ground rents in respect of such Mortgaged Property
or REO Property, as the case may be, over (B) 90% of the Appraised Value (net of
any prior mortgage liens) of such Mortgaged Property or REO Property as
determined by such Appraisal or internal valuation, as the case may be. Each
Appraisal or internal valuation for a Required Appraisal Loan shall be updated
annually. The Appraisal Reduction for each Required Appraisal Loan will be
recalculated based on subsequent Appraisals, internal valuations or updates. Any
Appraisal Reduction for any Mortgage Loan shall be reduced to reflect any
Realized Principal Losses on the Required Appraisal Loan. Each Appraisal
Reduction will be reduced to zero as of the date the related Mortgage Loan is
brought current under the then current terms of the Mortgage Loan for at least
three consecutive months, and no Appraisal Reduction will exist as to any
Mortgage Loan after it has been paid in full, liquidated, repurchased or
otherwise disposed of, or in certain cases will be reduced by the amount of any
Realized Principal Loss on the related Mortgage Loan incurred prior to the
liquidation or disposition thereof. Notwithstanding the foregoing, if an
internal valuation of the Mortgaged Property is performed, the Appraisal
Reduction will equal the greater of (A) the amount calculated above and (B) 25%
of the Scheduled Principal Balance of the Mortgage Loan.
"APPRAISED VALUE" means, with respect to any Mortgaged
Property, the appraised value thereof determined by an Appraisal of such
Mortgaged Property made by an Independent appraiser selected by the Master
Servicer or the Special Servicer, as applicable or, in the case of an internal
valuation performed pursuant to Section 6.8, the value of the Mortgaged Property
determined by such internal valuation.
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage
Loan, any assignment of leases, rents and profits or equivalent instrument,
whether contained in the related Mortgage or executed separately, assigning to
the holder or holders of such Mortgage all of the related Mortgagor's interest
in the leases, rents and profits derived from the ownership, operation, leasing
or disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage,
notice of transfer or equivalent instrument, in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect the transfer of the Mortgage to the Trustee, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering the Mortgage Loans secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any
Balloon Mortgage Loan for its Maturity Date (provided that such Mortgage Loan
has not been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect thereof, on or before the end of the
Collection Period in which such Maturity Date occurs) and for any subsequent Due
Date therefor as of which such Mortgage Loan remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment that would have been due in respect of such Mortgage Loan on
such Due Date, if it had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule in effect immediately prior to, and without regard to the
occurrence of, its most recent Maturity Date (as such may have been extended in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or the Special Servicer pursuant to the
terms hereof), and (ii) with respect to any REO Mortgage Loan for any Due Date
therefor as of which the related REO Property remains part of the Trust, the
scheduled monthly payment of principal and interest deemed to be due in respect
thereof on such Due Date equal to the Scheduled Payment (or, in the case of a
Balloon Mortgage Loan described in the preceding clause of this definition, the
Assumed Scheduled Payment) that was due in respect of the related Mortgage Loan
on the last Due Date prior to its becoming an REO Mortgage Loan.
"AUTHENTICATING AGENT" means any authenticating agent serving
in such capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an
Officer's Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" shall have the
meaning set forth in Section 4.6(a) hereof.
"AVAILABLE DISTRIBUTION AMOUNT" means in general, for any
Distribution Date: (A) all amounts on deposit in the Distribution Account as of
the commencement of business on such Distribution Date that represent payments
and other collections on or in respect of the Mortgage Loans and any REO
Properties that were received by the Master Servicer or the Special Servicer
through the end of the related Collection Period exclusive of (i) Scheduled
Payments collected but due on a Due Date subsequent to the related Collection
Period, (ii) Prepayment Premiums; (iii) amounts that are payable or reimbursable
to any person other than the Certificateholders pursuant to this Agreement
(including, among other things, amounts payable to the Trustee as compensation
or in reimbursement of outstanding Advances to the extent collected); (iv)
amounts deposited in the Distribution Account in error; and (v) if such
Distribution Date occurs during January, other than a leap year, or February of
any year, the Interest Reserve Amounts with respect to the Interest Reserve
Loans to be deposited into the Interest Reserve Account; (B) to the extent not
already included in clause (a), any P&I Advances made and any Compensating
Interest Payments paid with respect to such Distribution Date; and (C) if such
Distribution Date occurs during March of any year, the aggregate of the Interest
Reserve Amounts then on deposit in the Interest Reserve Account in respect of
each Interest Reserve Loan.
"BALLOON MORTGAGE LOAN" means Mortgage Loans which provide for
Scheduled Payments based on amortization schedules significantly longer than
their terms to maturity and which are expected to have remaining principal
balances equal to or greater than 5% of the original principal balance of each
Mortgage Loan as of their respective Stated Maturity Date.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage
Loan, the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under
the United States Bankruptcy Code or any other similar state law or other
proceeding with respect to the Mortgagor of, or Mortgaged Property under, a
Mortgage Loan, including, without limitation, any Deficient Valuation Amount or
losses, if any, resulting from any Debt Service Reduction Amount for the month
in which the related Remittance Date occurs.
"BASE INTEREST FRACTION" means, with respect to any principal
prepayment on any Mortgage Loan and with respect to any Class of Certificates, a
fraction (a) whose numerator is the amount, if any, by which (1) the
Pass-Through Rate on the related Class of Certificates exceeds (2) the yield
rate used in calculating the Yield Maintenance Payment with respect to such
principal prepayment and (b) whose denominator is the amount, if any, by which
(1) the Mortgage Rate on such Mortgage Loan exceeds (2) the yield rate used in
calculating the Yield Maintenance Payment with respect to such principal
prepayment; provided, however, that under no circumstances will the Base
Interest Fraction be greater than one. If the yield rate is greater than or
equal to the lesser of (a) the Mortgage Rate on such Mortgage Loan and (b) the
related Pass-Through Rate, then the Base Interest Fraction will equal zero.
"BENEFIT PLAN OPINION" means an Opinion of Counsel
satisfactory to the Trustee and the Master Servicer to the effect that any
proposed transfer will not (i) cause the assets of any REMIC to be regarded as
plan assets for purposes of the Plan Asset Regulations or (ii) give rise to any
fiduciary duty on the part of the Depositor, the Master Servicer, the Special
Servicer or the Trustee.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a
beneficial interest in a Class of Certificates, ownership and transfer of which
shall be made through book entries as described in Section 3.7; provided, that
after the occurrence of a condition whereupon book-entry registration and
transfer are no longer authorized and Definitive Certificates are to be issued
to the Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BUSINESS DAY" means any day other than (i) a Saturday or a
Sunday, (ii) a legal holiday in New York, New York, Texas or St. Louis, Missouri
or the principal cities in which the Special Servicer, the Trustee or the Master
Servicer conducts servicing or trust operations, or (iii) a day on which banking
institutions or savings associations in New York, New York, Texas or St. Louis,
Missouri are authorized or obligated by law or executive order to be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan
other than a Mortgage Loan with respect to which the related Mortgaged Property
became REO Property, the amount of all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds, Purchase Proceeds and other payments or
Recoveries with respect to a Final Recovery Determination. The Master Servicer
shall maintain records in accordance with the Servicing Standard (and, in the
case of Specially Serviced Mortgage Loans, based on the written reports with
respect to such Cash Liquidation delivered by the Special Servicer to the Master
Servicer), of each Cash Liquidation.
"CEDEL" means Cedelbank, societe anonyme.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts
established and maintained by the Master Servicer (or any Sub-Servicer on behalf
of the Master Servicer) pursuant to Section 5.1(a), which each account shall be
an Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate
or Interest (other than the Class X Certificates and the Residual Certificates)
as of any Distribution Date, the maximum specified dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal to
the initial principal amount set forth on the face of such Certificate (in the
case of a Certificate), or as ascribed thereto in the Preliminary Statement (in
the case of an Interest), minus (i) the amount of all principal distributions
previously made with respect to such Certificate pursuant to Section 6.4(a) or
deemed to have been made with respect to such Interest pursuant to Section
6.2(a) or Section 6.3(a), as the case may be, (ii) all Realized Losses allocated
or deemed to have been allocated to such Interest or Certificate pursuant to
Section 6.5, and (iii) Expense Losses allocated to such Interest or Certificate
pursuant to Section 6.5.
"CERTIFICATE OWNER" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Book-Entry
Certificate, as may be reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing Agency (directly or
as an indirect participant, in accordance with the rules of such Clearing
Agency).
"CERTIFICATE REGISTER" has the meaning provided in Section
3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant
to Section 3.2.
"CERTIFICATEHOLDERS" has the meaning provided in the
definition of "Holder."
"CERTIFICATES" means, collectively, the REMIC III
Certificates, the Class R-I Certificates and the Class R-II Certificates.
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests or REMIC III Certificates, any Class of such Certificates or
Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS A-3
CERTIFICATES," "CLASS A-4 CERTIFICATES," "CLASS X CERTIFICATES," "CLASS B
CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E
CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G CERTIFICATES," "CLASS H
CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L
CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N CERTIFICATES," "CLASS O
CERTIFICATES," "CLASS R-I CERTIFICATES," "CLASS R-II CERTIFICATES" or "CLASS
R-III CERTIFICATES," mean the Certificates designated as "Class A-1," "Class
A-2," "Class A-3," "Class A-4," "Class X," "Class B," "Class C," "Class D,"
"Class E," "Class F," "Class G," "Class H," "Class J," "Class K," "Class L,"
"Class M," "Class N," "Class O," "Class R-I," "Class R-II" and "Class R-III,"
respectively, on the face thereof, in substantially the form attached hereto as
Exhibits A-1 through A-21 hereof.
"CLASS A CERTIFICATES" means the Class A-1 Certificates, Class
A-2 Certificates, Class A-3 Certificates and Class A-4 Certificates,
collectively.
"CLASS A-2 SCHEDULED PRINCIPAL AMOUNT" means, with respect to
any Distribution Date, an amount equal to the product of (a) the Principal
Distribution Amount and (b) a fraction, the numerator of which is equal to the
aggregate outstanding Certificate Balance of the Class A-2 Certificates and the
denominator of which is equal to the sum of the aggregate outstanding
Certificate Balances of the Class A-1, Class A-2 and Class A-3 Certificates.
"CLASS X CERTIFICATES" means the Class X Certificates.
"CLASS X INTEREST AMOUNT" means, with respect to any
Distribution Date and the related Interest Accrual Period, interest equal to the
product of (i) one-twelfth of a per annum rate equal to the weighted average of
the Class X Strip Rates for the Class A-1 Certificates, Class A-2 Certificates,
Class A-3 Certificates, Class A-4 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates
and Class O Certificates, weighted on the basis of the respective Certificate
Balances of such Classes of Certificates, and (ii) the Class X Notional Amount
for such Distribution Date.
"CLASS X NOTIONAL AMOUNT" means, with respect to any
Distribution Date, the aggregate of the Certificate Balances of the REMIC
Regular Certificates as of the close of business on the related Distribution
Date.
"CLASS X STRIP RATE" means, for any Distribution Date, with
respect to any Class of Certificates (other than the Class X Certificates and
the Residual Certificates), the excess, if any, of the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date over (i) the Pass-Through Rate for
such Class of Certificates.
"CLEARING AGENCY" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the 1934 Act, which initially shall
be the Depository.
"CLOSING DATE" means July 21, 1999.
"CODE" means the Internal Revenue Code of 1986, as amended,
any successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution
Date, the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or in the case of the first
Distribution Date, the Cut-Off Date) and ending on the Determination Date in the
month in which the Distribution Date occurs.
"COMPENSATING INTEREST PAYMENT" means with respect to any
Distribution Date, an amount equal to the excess of (A) Prepayment Interest
Shortfalls resulting from Principal Prepayments during the related Collection
Period over (B) Prepayment Interest Excesses resulting from Principal
Prepayments during the same Collection Period, but in any event (i) with respect
to Compensating Interest Payments to be paid by the Master Servicer hereunder,
not more than the portion of the aggregate Servicing Fee for the related
Collection Period calculated in respect of all the Mortgage Loans (including REO
Mortgage Loans) and (ii) with respect to Compensating Interest Payment to be
paid by the Special Servicer hereunder, not more than the portion of the
aggregate Special Servicing Fee for the related Collection Period calculated in
respect of all the Specially Serviced Mortgage Loans, including REO Mortgage
Loans.
"CONDEMNATION PROCEEDS" means any awards resulting from the
full or partial condemnation or any eminent domain proceeding or any conveyance
in lieu or in anticipation thereof with respect to a Mortgaged Property by or to
any governmental, quasi-governmental authority or private entity with
condemnation powers other than amounts to be applied to the restoration,
preservation or repair of such Mortgaged Property or released to the related
Mortgagor in accordance with the terms of the Mortgage Loan.
"CONNING ASSET MANAGEMENT COMPANY" has the meaning assigned in
the Preliminary Statement hereof.
"CONTROLLING CLASS" means the most subordinate Class of
Subordinate Certificates outstanding at any time of determination; provided,
however, that if the aggregate Certificate Balance of such Class of Certificates
is less than 50%, with respect to the Class N and Class O Certificates, and 25%,
with respect to all other Classes of Certificates, of the initial aggregate
Certificate Balance of such Class as of the Closing Date, the Controlling Class
shall be the next most subordinate Class of Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any
other Person who "controls" such Person within the meaning of the 1933 Act.
"CORPORATE TRUST OFFICE" means, with respect to the
presentment and surrender of Certificates for the final distribution thereon or
the presentment and surrender of Certificates for any other purpose, the office
of the Certificate Registrar and, with respect to other purposes, the principal
corporate trust office of the Trustee. The principal corporate trust office of
the Trustee and Certificate Registrar is presently located at 450 West 33rd
Street, 14th Floor, New York, New York 10001, Attention: Capital Markets
Fiduciary Services (CMBS), Telecopy (212) 946-7317, or at such other address as
the Trustee or the Certificate Registrar, as the case may be, may designate from
time to time by notice to the Certificateholders, the Depositor, the Master
Servicer and the Special Servicer.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to
each Mortgage Loan, the REMIC I Regular Interest having an initial Certificate
Balance equal to the principal balance of such Mortgage Loan outstanding as of
the Cut-Off Date, after taking into account all principal and interest payments
made or due prior to the Cut-Off Date.
"CORRESPONDING REMIC II REGULAR INTEREST" means with respect
to each Class of Certificates, the REMIC II Regular Interest having the same
letter designation.
"CURRENTLY PAYING CLASS" means any one of the Class of
Interests which is currently receiving distributions of principal pursuant to
Section 6.2 hereof.
"CUSTODIAN" means the Trustee or any Person who is appointed
by the Trustee at any time as custodian pursuant to Section 7.9 and who is
unaffiliated with the Depositor and each Seller and satisfies the eligibility
requirements of the Trustee as set forth in Section 7.5.
"CUSTOMER" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"CUT-OFF DATE" means the end of business on July 1, 1999.
"CUT-OFF DATE AGGREGATE PRINCIPAL BALANCE" means, with respect
to the Mortgage Loans on the Closing Date, the Aggregate Principal Balance for
all such Mortgage Loans as of the Cut-Off Date, reduced by all payments of
principal due on or before the Cut-Off Date whether or not paid, and increased
by Scheduled Payments of principal due after the Cut-Off Date but received by
the Master Servicer on or before the Cut-Off Date.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any
Mortgage Loan, as of any date of determination and for any period, the amount
calculated for such date of determination in accordance with the procedures set
forth in Exhibit T.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due
Date and the related Determination Date, the amount of the reduction of the
Scheduled Payment which a Mortgagor is obligated to pay on such Due Date with
respect to a Mortgage Loan as a result of any proceeding under bankruptcy law or
any similar proceeding (other than a Deficient Valuation Amount); provided,
however, that in the case of an amount that is deferred, but not forgiven, such
reduction shall include only the net present value (calculated at the related
Mortgage Rate) of the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan which is in
default under the terms of the applicable Mortgage Loan documentation and for
which any applicable grace period has expired.
"DEFEASANCE COLLATERAL" means, with respect to any Defeasance
Loan, the United States Treasury obligations required or permitted to be pledged
in lieu of prepayment pursuant to the terms thereof.
"DEFEASANCE LOAN" means any Mortgage Loan which requires the
related Mortgagor (or permits the holder of such Mortgage Loan to require the
related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of
prepayment.
"DEFICIENT VALUATION" means, with respect to any Mortgage
Loan, a valuation by a court of competent jurisdiction of the Mortgaged Property
relating to a Mortgage Loan in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
initiated under the United States Bankruptcy Code, as amended from time to time,
and that reduces the amount the Mortgagor is required to pay under such Mortgage
Loan.
"DEFICIENT VALUATION AMOUNT" means the amount by which the
total amount due with respect to a Mortgage Loan (excluding interest not yet
accrued), including the principal balance of a Mortgage Loan plus any accrued
and unpaid interest thereon and any other amounts recoverable from the Mortgagor
with respect thereto pursuant to the terms thereof, is reduced in connection
with a Deficient Valuation.
"DEFINITIVE CERTIFICATES" means Certificates of any Class
issued in definitive, fully registered, certificated form without interest
coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is
repurchased from the Trust pursuant to the terms hereof or as to which one or
more Qualifying Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Morgan Stanley Capital I Inc., a Delaware
corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations by
and among the Depositor, the Trustee, as agent thereunder, and the Depository.
"DETERMINATION DATE" means, with respect to any Distribution
Date, the 5th Business Day prior to the related Distribution Date, commencing
August 9, 1999.
"DIRECTLY OPERATE" means, with respect to any REO Property,
the furnishing or rendering of services to the tenants thereof, the management
or operation of such REO Property, the holding of such REO Property primarily
for sale to customers (other than a sale of an REO Property pursuant to and in
accordance with Section 9.15 or Section 9.36), the performance of any
construction work thereon or any use of such REO Property in a trade or business
conducted by the Trust, in each case other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs, tenant
improvements or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
connection with leasing activity) or undertakes any ministerial action
incidental thereto.
"DISCOUNT RATE" means the rate which, when compounded monthly,
is equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate" is the yield calculated by the linear interpolation of the yields, as
reported in Federal Reserve Statistical Release H.15--Selected Interest Rates
under the heading "U.S. government securities/Treasury constant maturities" for
the week ending prior to the date of the relevant principal prepayment, of U.S.
Treasury constant maturities with a maturity date (one longer and one shorter)
most nearly approximating the maturity date of the Mortgage Loan prepaid. If
Release H.15 is no longer published, the Master Servicer will select a
comparable publication to determine the Treasury Rate.
"DISQUALIFIED ORGANIZATION" means any of (i) the United
States, any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for FHLMC,
a majority of its board of directors is not selected by any such governmental
unit), (ii) a foreign government, international organization or any agency or
instrumentality of either of the foregoing, (iii) an organization (except
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from tax imposed by Chapter 1 of the Code (unless such organization is
subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code, and (v) any other Person so designated by the Trustee
based upon an Opinion of Counsel that the holding of an ownership interest in a
Residual Certificate by such Person may cause any of the REMIC Pools, or any
Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the transfer of an ownership
interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST AMOUNT" means, in respect
of any Class of REMIC Regular Certificates for any Distribution Date, the sum
of: (A) Accrued Certificate Interest in respect of such Class of Certificates
for such Distribution Date, reduced (to not less than zero) by: (i) any Net
Aggregate Prepayment Interest Shortfalls and (ii) Realized Losses and Expense
Losses, in each case specifically allocated with respect to such Distribution
Date to reduce the Distributable Certificate Interest Amount payable in respect
of such Class in accordance with the terms of this Agreement; plus (B) the
Unpaid Interest.
"DISTRIBUTION ACCOUNT" means the Distribution Account
maintained by the Trustee, in accordance with the provisions of Section 5.3,
which account shall be an Eligible Account.
"DISTRIBUTION DATE" means the 15th day of each month or, if
such day is not a Business Day, the next succeeding Business Day, commencing
August 16, 1999.
"DOCUMENT DEFECT" has the meaning set forth in Section 2.3(a).
"DUE DATE" means, with respect to a Mortgage Loan, the date on
which a Scheduled Payment is due.
"ELIGIBLE ACCOUNT" means (i) an account or accounts maintained
with a depository institution or trust company the long-term unsecured debt
obligations of which are rated at least "AA" or better by Fitch, or if not so
rated by Fitch then otherwise approved by Fitch, and at least "AA" by S&P if
rated by S&P or if not so rated by S&P, then S&P has issued a Rating Agency
Confirmation with respect to the maintenance of such account or accounts; or
(ii) an account or accounts in which funds will be held therein for 30 days or
less which are maintained with a depository institution or trust company, the
short-term unsecured debt obligations of which are rated "F-1+" or better by
Fitch, or if not so rated by Fitch then otherwise approved by Fitch, and "A-1"
or better by S&P if rated by S&P, or if not so rated by S&P then S&P has issued
a Rating Agency Confirmation with respect to the maintenance of such account or
accounts, in each case at the time of any deposit therein; or (iii) a segregated
trust account or accounts maintained with the corporate trust department of a
federally or state chartered depository institution or trust company acting in
its fiduciary capacity, which may be the Master Servicer (or any Affiliate of
the Master Servicer) or Trustee, provided any such institution is subject to
regulations regarding fiduciary funds on deposit substantially similar to 12
C.F.R. Section 9.10(b) and the maintenance of such account in such institution
will not result in the qualification, downgrading or withdrawal of the rating
then assigned to any Class of Certificates as evidenced in writing by each
Rating Agency; or (iv) any account which is fully insured by the United States
Government, the Federal Deposit Insurance Corporation ("FDIC") or any other
agency or instrumentality of the United States; or (v) any account, the
establishment and maintenance of which is the subject of a Rating Agency
Confirmation; or (vi) an account or accounts maintained with The Chase Manhattan
Bank, provided that the long-term unsecured obligations of The Chase Manhattan
Bank are rated "AA" or better by Fitch and "AA" or better by S&P. Eligible
Accounts may bear interest.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property.
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the United States
of America, FNMA, FHLMC or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and credit of the
United States of America; provided that any obligation of, or guarantee by, FNMA
or FHLMC, other than an unsecured senior debt obligation of FNMA or FHLMC, shall
be an Eligible Investment only if Rating Agency Confirmation is obtained with
respect to such investment;
(ii) time deposits in, unsecured certificates of deposit
of, or bankers' acceptances issued by, any depository institution or trust
company (including the Trustee, the Master Servicer, the Special Servicer or any
Affiliate of the Master Servicer, the Special Servicer or the Trustee acting in
its commercial capacity) incorporated or organized under the laws of the United
States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long as the commercial
paper or other short-term debt obligations of such depository institution or
trust company are rated "AA" or better by Fitch or otherwise approved by Fitch
if not rated by Fitch, and "A-1+" or better by S&P, or if not rated by S&P then
S&P has issued a Rating Agency Confirmation with respect to such time deposits,
certificates of deposit, or bankers' acceptances or time deposits of The Chase
Manhattan Bank, provided that the long-term unsecured obligations of The Chase
Manhattan Bank are rated "AA" or better by Fitch and the short-term unsecured
debt obligations of The Chase Manhattan Bank are rated "A-1+" by S&P;
(iii) repurchase agreements or obligations with respect to
any security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase obligation
will mature prior to the Business Day preceding the next Distribution Date upon
which such amounts are required to be withdrawn from the related account and
which meets the minimum rating requirement for such entity described above;
(iv) debt issued by any corporation incorporated under the
laws of the United States of America or any state thereof, which securities have
ratings from Fitch and S&P that are at least equal to the highest long-term
credit ratings assigned by Fitch and "AA" or better by S&P, respectively, unless
otherwise consented to in a Rating Agency Confirmation; provided that securities
issued by any particular corporation will not be Eligible Investments to the
extent that investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held in the Certificate Account to
exceed 10% of the sum of the Aggregate Principal Balance and the aggregate
principal amount of all Eligible Investments in the Certificate Account;
(v) commercial paper (including both noninterest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof) rated
"F-1+" by Fitch (if rated by Fitch, and, if not by Fitch, then Fitch has issued
a Rating Agency Confirmation) and "A-1+" by S&P (if rated by S&P, and if not by
S&P, then S&P has issued a Rating Agency Confirmation with respect to such
commercial paper);
(vi) money market funds rated in the highest long-term
category by Fitch, or if not rated by Fitch then otherwise approved by Fitch,
and "AAAm" or "AAAmg" by S&P or if not rated by S&P then S&P has issued a Rating
Agency Confirmation with respect to such money market funds; and
(vii) such other investments bearing interest or sold at a
discount, or earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1) (as evidenced by an Opinion of
Counsel delivered to the Trustee by the Master Servicer at the Master Servicer's
expense) that are the subject of a Rating Agency Confirmation and otherwise
treated as "permitted investments" under Code Section 860G(a)(5);
provided, that if such investment is rated by S&P, it must not have an "r"
highlighter affixed to its rating; provided, further (A) such investment is held
for a temporary period pursuant to Section 1.860G-2(g)(1) of the Treasury
Regulations and (B) that no such instrument shall be an Eligible Investment if
such instrument evidences either (X) a right to receive only interest payments
or only principal payments with respect to the obligations underlying such
instrument or (Y) a right to receive both principal and interest payments
derived from obligations underlying such instrument and the principal and
interest payments with respect to such instrument provide a yield to maturity of
greater than 120% of the yield to maturity at par of such underlying
obligations, or (Z) if it may be redeemed at a price below the purchase price
(the foregoing clause (B) shall not apply to investments in units of money
market funds pursuant to clause (vi) or clause (viii) above); and provided,
further, that interest on any variable rate instrument shall be tied to a single
interest rate index plus a single fixed spread (if any) and move proportionally
with that index; and provided, further, that no amount beneficially owned by any
REMIC (including any amounts collected by the Master Servicer but not yet
deposited in the Certificate Account) may be invested in investments treated as
equity interests for Federal income tax purposes, unless the Master Servicer and
the Trustee shall receive an Opinion of Counsel (which shall be at the expense
of the party requesting such investment in equity interests) to the effect that
such investment will not adversely affect the status of any such REMIC as a
REMIC under the Code or result in imposition of a tax on any such REMIC. Each
Eligible Investment shall have a predetermined fixed dollar amount of principal
due at maturity that cannot vary or change and shall not be subject to
liquidation prior to maturity. No Eligible Investments shall be purchased at a
price in excess of par or have maturities in excess of one year. For the purpose
of this definition, units of investment funds (including money market funds)
shall be deemed to mature daily.
"ENVIRONMENTAL LAWS" means any and all federal, state and
local statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ESCROW ACCOUNT" means an account established by the Master
Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a
Mortgage Loan for taxes, assessments, water rates, all insurance premiums,
ground lease payments, reserves for capital improvements, deferred maintenance,
tenant improvements, leasing commissions, environmental matters and other
reserves or comparable items.
"EVENT OF DEFAULT" has the meaning set forth in Section
8.28(b).
"EXCESS SERVICING FEE" means with respect to each Mortgage
Loan and for any Distribution Date, an amount per Interest Accrual Period equal
to the product of (i) one-twelfth of the Excess Servicing Fee Rate and (ii) the
stated Principal Balance of such Mortgage Loan as of the Due Date in the
immediately preceding Collection Period (without giving effect to payments of
principal on such Mortgage Loan on such Due Date). The Excess Servicing Fee
shall be freely assignable and non-terminable. The Trustee will treat the Excess
Servicing Fee as a "Stripped Coupon" within the meaning of Section 1286 of the
Code, owned by the Master Servicer or any assignee or successor thereof.
"EXCESS SERVICING FEE RATE" means, with respect to each
Mortgage Loan, the rate as specified on Exhibit J hereto.
"EXCHANGE CERTIFICATION" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A-IAI Global
Certificate, as applicable.
"EXPENSE LOSS" means a loss realized upon payment by the Trust
of an Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or
any successor thereto.
"FHLMC AUDIT PROGRAM" shall have the meaning set forth in
Section 8.13.
"FINAL CERTIFICATION" has the meaning set forth in Section
2.2.
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
preliminary statement hereto.
"FINAL RATED DISTRIBUTION DATE" means with respect to each
rated Class of Certificates, the date shown on the chart in the Preliminary
Statement.
"FINAL RECOVERY DETERMINATION" means a determination with
respect to any Mortgage Loan by the Master Servicer (or, with respect to any
Specially Serviced Mortgage Loan, by the Special Servicer) in respect of any
Defaulted Mortgage Loan (including a Mortgage Loan that became an REO Property),
in each case, in its good faith discretion, consistent with the Servicing
Standard that all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds, Purchase Proceeds and other payments or Recoveries which Master
Servicer or Special Servicer, as applicable, expects to be finally recoverable
on such Mortgage Loan, without regard to any obligation of the Master Servicer
or the Trustee, as the case may be, to make payments from its own funds pursuant
to Article IV hereof, have been recovered. The Special Servicer shall be
required to provide the Master Servicer with prompt written notice of any Final
Recovery Determination with respect to any Specially Serviced Mortgage Loan upon
making such determination. The Master Servicer shall notify the Trustee of such
determination and the Trustee shall deliver a copy of such notice to each Rating
Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of
rated Certificates, the Distribution Date on which such Class will be paid in
full assuming that timely payments will be made on the Mortgage Loans in
accordance with their terms.
"FITCH" means Fitch IBCA, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"GENERAL AMERICAN" has the meaning assigned in the Preliminary
Statement hereof.
"GENERAL AMERICAN LOANS" means, collectively, those Mortgage
Loans sold to the Depositor pursuant to Mortgage Loan Purchase Agreement I and
shown on Schedule I hereto.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global
Certificate, Regulation S Temporary Global Certificate or Regulation S Permanent
Global Certificate.
"HOLDER" means the Person in whose name a Certificate is
registered on the Certificate Register.
"INDEPENDENT" means, when used with respect to any
Accountants, a Person who is "independent" within the meaning of Rule 2-01(b) of
the Securities and Exchange Commission's Regulation S-X. Independent means, when
used with respect to any other Person, a Person who (A) is in fact independent
of another specified Person and any Affiliate of such other Person, (B) does not
have any material direct or indirect financial interest in such other Person or
any Affiliate of such other Person, (C) is not connected with such other Person
or any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the Master Servicer (other than the Master Servicer, but which may
be an Affiliate of the Master Servicer) or, (B) that is a Specially Serviced
Mortgage Loan, any Person designated by the Special Servicer that would be an
"independent contractor" with respect to the applicable REMIC Pool within the
meaning of Section 856(d)(3) of the Code if such REMIC Pool were a real estate
investment trust (except that the ownership test set forth in such Section shall
be considered to be met by any Person that owns, directly or indirectly, 35% or
more of the Aggregate Certificate Balance or Notional Amount, as the case may
be, of any Class of the Certificates (other than the Class R-III Certificates),
a Percentage Interest of 35% or more in the Class R-III Certificates or such
other interest in any Class of the Certificates or of the applicable REMIC Pool
as is set forth in an Opinion of Counsel, which shall be at no expense to the
Trustee or the Trust) so long as such REMIC Pool does not receive or derive any
income from such Person and provided that the relationship between such Person
and such REMIC Pool is at arm's length all within the meaning of Treasury
Regulation Section 1.856 - 4(b)(5) or (ii) any other Person (including the
Master Servicer or the Special Servicer) upon receipt by the Trustee of an
Opinion of Counsel, which shall be at the expense of the Person delivering such
opinion to the Trustee, 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 (determined without regard
to the exception applicable for purposes of Section 860D(a) of the Code), or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property.
"INDIRECT PARTICIPANTS" means entities, such as banks,
brokers, dealers and trust companies, that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly.
"INITIAL CERTIFICATION" has the meaning set forth in Section
2.2.
"INITIAL DEPOSIT" means the amount of all collections made on
the Mortgage Loans due and collected after the Cut-Off Date to and excluding the
Closing Date.
"INSPECTION REPORT" means the report delivered by the Master
Servicer or the Special Servicer, as the case may be, substantially in the form
of Exhibit L hereto.
"INSTITUTIONAL ACCREDITED INVESTOR" shall mean an
institutional accredited investor qualifying pursuant to Rule 501(a)(1), (2),
(3) or (7) of Regulation D of the 1933 Act.
"INSURANCE POLICIES" means, collectively, any insurance policy
relating to the Mortgage Loans or the Mortgaged Properties in effect as of the
Closing Date or thereafter during the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under
any Insurance Policy, other than amounts required to be paid over to the
Mortgagor pursuant to law, the related Mortgage Loan or the Servicing Standard.
"INTEREST" means a REMIC I Interest or a REMIC II Interest, as
applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date,
with respect to all Classes of Certificates and Interests (other than the
Residual Certificates), the period beginning on the first day of the month
preceding the month in which such Distribution Date occurs and ending on the
last day of the month preceding the month in which such Distribution Date
occurs.
"INTEREST RESERVE ACCOUNT" means, that Interest Reserve
Account maintained by the Trustee pursuant to Section 5.1(a) which account shall
be an Eligible Account.
"INTEREST RESERVE AMOUNT" shall having the meaning set forth
in Section 5.1(d).
"INTEREST RESERVE LOANS" means a Mortgage Loan that accrues
interest other than on the basis of a 360-day year consisting of twelve 30-day
months.
"INTERESTED PERSON" means, as of any date of determination,
the Master Servicer, the Special Servicer, the Depositor, any Seller, with
respect to any Mortgage Loan, the holder of any related Junior Indebtedness, a
holder of 50% or more of the Controlling Class, the Operating Adviser, any
Independent Contractor engaged by the Master Servicer or the Special Servicer
pursuant to this Agreement, or any Person actually known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor
that is secured by a lien that is junior in right of payment to the lien of the
Mortgage securing the related Mortgage Note.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan,
all amounts received during any Collection Period, whether as late payments or
as Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds or otherwise, that represent payments or collections of Scheduled
Payments due but delinquent for a previous Collection Period and not previously
recovered.
"LATE FEES" shall mean a fee payable to the Master Servicer or
the Special Servicer, as the case may be, to the extent actually collected from
the Mortgagor as provided in the related Mortgage Loan in connection with a late
payment made by such Mortgagor.
"LIQUIDATION EXPENSES" means reasonable and direct expenses
incurred by the Special Servicer on behalf of the Trust in connection with the
enforcement and liquidation of any Specially Serviced Mortgage Loan or REO
Property acquired in respect thereof including, without limitation, reasonable
legal fees and expenses, committee or referee fees, property manager fees, and,
if applicable, brokerage commissions and conveyance taxes for such Specially
Serviced Mortgage Loan. All Liquidation Expenses relating to enforcement and
disposition of the Specially Serviced Mortgage Loan shall be paid (i) out of
income from the related REO Property, to the extent available or (ii) advanced
by the Master Servicer, subject to Section 4.4 hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0%
and (y) the Liquidation Proceeds received in connection with a final disposition
of a Specially Serviced Mortgage Loan or REO Property.
"LIQUIDATION PROCEEDS" means proceeds from the sale or
liquidation of a Mortgage Loan or related REO Property, net of Liquidation
Expenses and any related Advances and interest thereon.
"LIQUIDATION REALIZED LOSS" means, with respect to each
Mortgage Loan or REO Property, as the case may be, as to which a Cash
Liquidation or REO Disposition has occurred, an amount equal to the sum, without
duplication, of (A) the Principal Balance of the Mortgage Loan (or deemed
Principal Balance, in the case of an REO Mortgage Loan) as of the date of the
Cash Liquidation or REO Disposition, plus (B) unpaid interest and interest
accrued thereon at the applicable Mortgage Rate, plus (C) any expenses incurred
in connection with such Mortgage Loan that are reimbursable to any Person, other
than amounts previously treated as Expense Losses or included in the definition
of Liquidation Expenses minus the sum of (i) REO Income applied as recoveries of
principal or interest on the related Mortgage Loan or REO Property, and (ii)
Liquidation Proceeds received during the Collection Period in which such Cash
Liquidation or REO Disposition occurred. REO Income and Liquidation Proceeds
shall be applied first against any Expense Losses (to the extent not included in
the definition of Liquidation Expenses) for such Mortgage Loan, the unpaid
interest on the Mortgage Loan, calculated as described in clause (B) above, and
then against the principal balance of such Mortgage Loan, calculated as
described in clause (A) above.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a
Mortgage Loan, the fraction, expressed as a percentage, the numerator of which
is the principal balance of such Mortgage Loan at the date of determination and
the denominator of which is the value of the Mortgaged Property as shown on the
most recent Appraisal or valuation of the Mortgaged Property which is available
as of such date.
"LOCK-BOX ACCOUNT" shall have the meaning set forth in Section
8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan,
any lock-box agreement relating to such Mortgage Loan among the related
Mortgagor, a depositary institution and the Master Servicer pursuant to which a
Lock-Box Account is created.
"LOSSES" has the meaning set forth in Section 12.4.
"MASTER SERVICER" means Conning Asset Management Company and
its permitted successors or assigns.
"MASTER SERVICER REMITTANCE DATE" means for each Distribution
Date the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared by
the Master Servicer and in such media as may be agreed upon by the Master
Servicer and the Trustee containing such information regarding the Mortgage
Loans as will permit the Trustee to calculate the amounts to be distributed to
the Certificateholders pursuant to this Agreement and to furnish the Monthly
Statement to Certificateholders required to be delivered hereunder and
containing such additional information as the Master Servicer, the Trustee and
the Depositor may from time to time mutually agree.
"MATURITY DATE" means, with respect to any Mortgage Loan as of
any date of determination, the date on which the last payment of principal is
due and payable under the related Mortgage Note, after taking into account all
Principal Prepayments received and any Deficient Valuation, Debt Service
Reduction Amount or modification of the Mortgage Loan occurring prior to such
date of determination, but without giving effect to (i) any acceleration of the
principal of such Mortgage Loan or (ii) any grace period permitted by the
related Mortgage Note.
"MODIFICATION FEE" means a fee, if any, collected from a
Mortgagor by the Master Servicer in connection with a modification of any
Mortgage Loan other than a Specially Serviced Mortgage Loan or collected by the
Special Servicer in connection with the modification of a Specially Serviced
Mortgage Loan.
"MODIFICATION LOSS" means (i) a decrease in the principal
balance of a Mortgage Loan as a result of a modification thereof in accordance
with the terms hereof, (ii) any expenses connected with such modification, to
the extent (x) reimbursable to the Trustee, the Special Servicer or the Master
Servicer and (y) not recovered from the Mortgagor or (iii) in the case of a
modification of a Mortgage Loan that reduces the Mortgage Rate thereof, the
excess, on each Due Date, of the amount of interest that would have accrued at a
rate equal to the original Mortgage Rate, over interest that actually accrued on
such Mortgage Loan during the preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan, the
Maturity Date, Mortgage Rate, principal balance, amortization term or payment
frequency thereof or any provision thereof requiring the payment of a Prepayment
Premium, Yield Maintenance Payment or Percentage Premium in connection with a
principal prepayment (and shall not include late fees or default interest
provisions).
"MONTHLY STATEMENT TO CERTIFICATEHOLDERS" means a report
provided pursuant to Section 5.4 by the Trustee monthly as of the related
Determination Date generally in the form and substance of Exhibit M, which sets
forth, to the extent applicable: (i) the amount, if any, of such distributions
to the holders of each Class of Principal Balance Certificates applied to reduce
the respective Certificate Balances thereof; (ii) the amount of such
distribution to holders of each Class of Certificates allocable to (A) interest
accrued at the respective Pass-Through Rates, less any Net Aggregate Prepayment
Interest Shortfalls and (B) Prepayment Premiums; (iii) the number of outstanding
Mortgage Loans and the aggregate Principal Balance and Scheduled Principal
Balance of the Mortgage Loans at the close of business on such Distribution
Date; (iv) the number and aggregate Scheduled Principal Balance of Mortgage
Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 or
more days, (D) as to which foreclosure proceedings have been commenced, or (E)
as to which bankruptcy proceedings have been commenced; (v) with respect to any
REO Property included in the Trust, the Principal Balance of the related
Mortgage Loan as of the date of acquisition of the REO Property and the
Scheduled Principal Balance thereof; (vi) as of the related Determination Date
(A) as to any REO Property sold during the related Collection Period, the date
of the related determination by the Special Servicer or Master Servicer, as the
case may be, that it has recovered all payments which it expects to be finally
recoverable and the amount of the proceeds of such sale deposited into the
Certificate Account, and (B) the aggregate amount of other revenues collected by
the Special Servicer with respect to each REO Property during the related
Collection Period and credited to the Certificate Account, in each case
identifying such REO Property by the loan number of the related Mortgage Loan;
(vii) the aggregate Certificate Balance or Notional Amount, as the case may be,
of each Class of Certificates before and after giving effect to the distribution
made on such Distribution Date; (viii) the aggregate amount of Principal
Prepayments made during the related Collection Period; (ix) the Pass-Through
Rate applicable to each Class of Certificates for such Distribution Date; (x)
the aggregate amount of servicing fees paid to the Master Servicer and the
Special Servicer including the amount of any Excess Servicing Fees; (xi) the
amount of Unpaid Interest, Realized Losses or Expense Losses, if any, incurred
with respect to the Mortgage Loans, including a description of any Expense
Losses; (xii) the aggregate amount of Servicing Advances and P&I Advances
outstanding that have been made by the Master Servicer and the Trustee,
separately stated; and (xiii) the amount of any Appraisal Reductions effected
during the related Collection Period on a loan-by-loan basis and the total
Appraisal Reductions in effect as of such Distribution Date. In the case of
information furnished pursuant to subclauses (i), (ii) and (xi) above, the
amounts shall be expressed in the aggregate and as a dollar amount per $1,000 of
original principal amount of the Certificates for all Certificates of each
applicable Class.
"MORTGAGE" means the mortgage, deed of trust or other similar
instrument securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below
where applicable:
(i) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of The Chase Manhattan Bank, as Trustee
for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1, without recourse" or if the original Mortgage
Note is not included therein, then a lost note affidavit and indemnity with a
true and complete copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording
thereon, and, if the Mortgage was executed pursuant to a power of attorney,
either (a) a certified true copy of the power of attorney certified by the
public recorder's office, with evidence of recording thereon, or certified by a
title insurance company or escrow company to be a true copy thereof or (b) a
title insurance policy with no exceptions or qualifications related to the
authority of the person or entity executing the Mortgage for the Mortgagor;
provided that if such original Mortgage or power of attorney cannot be delivered
with evidence of recording thereon on or prior to the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Depositor shall deliver or cause to be delivered to the Trustee a true and
complete copy of such Mortgage, together with (A) in the case of a delay caused
by the public recording office, an Officer's Certificate of the applicable
Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (B) in the case of an original
Mortgage that has been lost after recordation, a copy of such Mortgage,
certified by the appropriate county recording office where such Mortgage is
recorded to be a true and complete copy of the original recorded Mortgage;
(iii) the originals of all Money Term or material
modification, consolidation and extension agreements, if any, with evidence of
recording thereon, or if such original modification, consolidation and extension
agreements have been delivered to the appropriate recording office for
recordation and either have not yet been returned with evidence of recordation
thereon or have been lost after recordation, true copies of such modifications,
consolidations and extensions certified by the applicable Seller together with
(A) in the case of a delay caused by the public recording office, an Officer's
Certificate of the applicable Seller stating that such original modification,
consolidation or extension agreement has been dispatched or sent to the
appropriate public recording official for recordation or (B) in the case of an
original modification, consolidation or extension agreement that has been lost
after recordation, a copy of such modification, consolidation or extension
agreement certified by the appropriate county recording office where such
document is recorded to be a true and complete copy of the original recorded
modification, consolidation or extension agreement, and the originals of all
assumption agreements, if any, each signed by the holder of record in favor of
"The Chase Manhattan Bank, as Trustee for Morgan Stanley Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1;"
(iv) an original Assignment of Mortgage for each Mortgage
Loan, in form and substance acceptable for recording, signed by the holder of
record in favor of "The Chase Manhattan Bank, as Trustee for Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-CAM1;"
(v) originals of all intervening Assignments of Mortgage,
if any, with evidence of recording thereon or, if such original Assignments of
Mortgage have been delivered to the appropriate recording office for
recordation, certified true copies of such Assignments of Mortgage certified by
the applicable Seller, or in the case of an original blanket intervening
Assignment retained by the applicable Seller, a copy thereof certified by the
applicable Seller or, if any original intervening Assignment has not been
returned from the applicable recording office or has been lost, a true and
correct copy thereof, together with (A) in the case of a delay caused by the
public recording office, an Officer's Certificate of the applicable Seller
stating that such original intervening Assignment has been sent to the
appropriate public recording official for recordation or (B) in the case of an
original intervening Assignment that has been lost after recordation, a copy of
such intervening Assignment certified by the appropriate county recording office
where such assignment is recorded to be a true and complete copy of the original
recorded intervening Assignment;
(vi) if the related Assignment of Leases is separate from
the Mortgage, the original of such Assignment of Leases with evidence of
recording thereon or, if such Assignment of Leases has not been returned from
the applicable public recording office, a copy of such Assignment of Leases
certified by the applicable Seller to be a true and complete copy of the
original Assignment of Leases submitted for recording, together with (A) an
original of each assignment of such Assignment of Leases with evidence of
recording thereon and showing a complete recorded chain of assignment from the
named assignee to the holder of record, and if any such assignment of such
Assignment of Leases has not been returned from the applicable public recording
office, a copy of such assignment certified by the applicable Seller to be a
true and complete copy of the original assignment submitted for recording, and
(B) an original assignment of such Assignment of Leases, in recordable form,
signed by the holder of record in favor of "The Chase Manhattan Bank, as Trustee
for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1," which assignment may be effected in the related
Assignment of Mortgage;
(vii) the original of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event
such original Title Insurance Policy has not been issued, an original specimen
title policy or title binder or actual title commitment or a copy thereof
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date or a preliminary title report with an
original Title Insurance Policy to follow within 180 days of the Closing Date;
(ix) certified or acknowledgement copies of all UCC
Financing Statements and continuation statements or copies thereof sufficient to
perfect (and maintain the perfection of) the security interest held by the
originator of the Mortgage Loan (and each assignee prior to the Trustee) in and
to the personalty of the Mortgagor at the Mortgaged Property constituting
security for such Mortgage Loan (in each case with evidence of filing thereon),
and original UCC assignments in a form suitable for filing, sufficient to
transfer such security interest to the Trustee;
(x) copies of ground leases, if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such lease and there is a
lien in favor of the mortgagee in such lease;
(xi) copies of any lock-box agreements, intercreditor
agreements and management agreements, if any, related to any Mortgage Loan;
(xii) the original of each letters of credit, if any,
constituting additional collateral for such Mortgage Loan, together with the
original supporting documentation evidencing a beneficial transfer, in favor of
"The Chase Manhattan Bank, as trustee for Morgan Stanley Capital I Inc.,
Commercial Pass-Through Certificates, Series 1999-CAM1"; provided, however, the
Trustee shall hold such Letter of Credit only in a custodial capacity and shall
have no obligation to maintain, extend the term of, enforce, or otherwise
preserve any rights under such Letter of Credit; provided that whenever the term
"Mortgage File" is used to refer to documents actually received by the Trustee
or a Custodian on its behalf, such terms shall not be deemed to include such
documents required to be included therein unless they are actually so received;
and
(xiii) any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage,
and all amendments and modifications thereof, identified on the Mortgage Loan
Schedule, as amended from time to time, and conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.1 or Section
2.3, and Mortgage Loan shall also include any Defeasance Loan.
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan
Purchase Agreement I or Mortgage Loan Purchase Agreement II, as the case may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain
Mortgage Loan Purchase Agreement, dated as of July 1, 1999, between General
American and the Depositor with respect to the General American Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain
Mortgage Loan Purchase Agreement, dated as of July 1, 1999, between Retirement
System and the Depositor with respect to the Retirement System Loans.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively
the schedule attached hereto as Schedule I, which identifies each General
American Loan, and the schedule attached hereto as Schedule II, which identifies
each Retirement System Loan, as such schedules may be amended from time to time
pursuant to Section 2.3.
"MORTGAGE NOTE" means the note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan, the per
annum rate at which interest accrues on such Mortgage Loan.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any date
of determination, the holder of the related Mortgage Note as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, (i) with respect to all Mortgage Loans which are not
Specially Serviced Mortgage Loans, the excess, if any, of aggregate Prepayment
Interest Shortfalls for such Mortgage Loans over the sum of (A) Compensating
Interest Payments received on account of such Prepayment Interest Shortfalls and
(B) the aggregate Prepayment Interest Excesses for such Collection Period for
all Mortgage Loans which are not Specially Serviced Mortgage Loans, and (ii)
with respect to all Specially Serviced Mortgage Loans on which there have been
voluntary Principal Prepayments (not from Liquidation Proceeds or from
modifications to Specially Serviced Mortgage Loans), the excess, if any, of
aggregate Prepayment Interest Shortfalls for such Mortgage Loans over the sum of
(A) Compensating Interest Payments received on account of such Prepayment
Interest Shortfalls and (B) the aggregate Prepayment Interest Excesses for such
Collection Period for all Specially Serviced Mortgage Loans (including REO
Mortgage Loans).
"NEW LEASE" means any lease of any REO Property entered into
on behalf of the Trust, including any lease renewed or extended on behalf of the
Trust if the Trust has the right to renegotiate the terms of such lease.
"NEW YORK PRESENTING OFFICE" means an office, if any, of an
agent of the Trustee or the Certificate Registrar, as the Trustee or the
Certificate Registrar may designate from time to time by written notice to the
Depositor and the Certificateholders.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as
amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of
Counsel to the effect that a contemplated action will neither cause any REMIC
Pool to fail to qualify as a REMIC at any time that any Certificates are
outstanding nor cause a "prohibited transaction," "prohibited contribution" or
any other tax to be imposed on any REMIC Pool or the Trust.
"NONRECOVERABLE ADVANCE" means the portion of any Advance
(including interest accrued thereon at the Advance Rate) previously made or
proposed to be made by the Master Servicer or the Trustee as applicable that, in
its sole discretion, exercised in good faith and, with respect to the Master
Servicer, in accordance with the Servicing Standard, will not or, in the case of
a current delinquency, would not be, ultimately recoverable, from subsequent
payments or collections, including Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds or Purchase Proceeds, with respect to the related Mortgage
Loan or REO Property, as evidenced by an Officer's Certificate delivered
pursuant to Section 4.4. Such Officer's Certificate shall be delivered to the
Trustee (upon which the Trustee may conclusively rely) or to the Depositor (if
the Trustee is delivering such Officer's Certificate) and (in either case) to
the Special Servicer in the time periods as specified in Section 4.4 and shall
include the information and reports set forth in Section 4.4. In determining
whether an Advance with respect to any Mortgage Loan will be recoverable, the
Master Servicer or the Trustee, as applicable, shall take into account amounts
that may be realized on the related Mortgaged Property in its "as is" or then
current condition and occupancy. Absent bad faith, the Master Servicer's
determination as to the recoverability of any Advance shall be conclusive and
binding on the Certificateholders and may, in all cases, be relied on by the
Trustee.
"NON-REGISTERED CERTIFICATE" means unless and until registered
under the Securities Act, any Class X, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O or Residual Certificate.
"NOTIONAL AMOUNT" means, as of any date of determination: (i)
with respect to all of the Class X Certificates as a Class, the Class X Notional
Amount as of such date of determination; and (ii) with respect to any Class X
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X Notional Amount as of such date of determination.
"OFFICER'S CERTIFICATE" means (x) in the case of the
Depositor, a certificate signed by one or more of the Chairman of the Board, any
Vice Chairman, the President, or any Executive Vice President, Senior Vice
President, Vice President or Assistant Vice President, and by one or more of the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
the Depositor, or (y) in the case of the Master Servicer and the Special
Servicer, any of the officers referred to above or an employee thereof
designated as a Servicing Officer or Special Servicing Officer pursuant to this
Agreement, (z) in the case of the Trustee, a certificate signed by a Responsible
Officer, each with specific responsibilities for the matters contemplated by
this Agreement.
"OPERATING ADVISER" shall have the meaning specified in
Section 9.37(a).
"OPERATING ADVISER VOTES" shall mean the votes cast at a duly
called meeting by the Holders of the Controlling Class to elect an Operating
Adviser.
"OPINION OF COUNSEL" means a written opinion of counsel
addressed to the Trustee, reasonably acceptable in form and substance to the
Trustee, and who is not in-house counsel to the party required to deliver such
opinion but who, in the good faith judgment of the Trustee, is Independent
outside counsel knowledgeable of the issues occurring in the practice of
securitization with respect to any such opinion of counsel concerning the
taxation, or status as a REMIC for tax purposes, of the Trust or any REMIC Pool.
"OWNERSHIP INTEREST" means, as to any Certificate, any
ownership or security interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"P&I ADVANCE" shall mean, (i) with respect to any Mortgage
Loan or Specially Serviced Mortgage Loan as to which all or a portion of the
Scheduled Payment (other than a Balloon Payment) due during the related
Collection Period was not received by the Master Servicer as of the related
Determination Date, the portion of such Scheduled Payment not received; (ii)
with respect to any Balloon Mortgage Loan (including any REO Property as to
which the related Mortgage Loan provided for a Balloon Payment) as to which a
Balloon Payment was due during or prior to the related Collection Period but was
delinquent, in whole or in part, as of the related Determination Date, an amount
equal to the excess, if any, of the Assumed Scheduled Payment for such Balloon
Mortgage Loan for the related Collection Period, over any Late Collections
received in respect of such Balloon Payment during such Collection Period; and
(iii) with respect to each REO Property, an amount equal to the excess, if any,
of the Assumed Scheduled Payment for the Mortgage Loan related to such REO
Property during the related Collection Period, over remittances of REO Income to
the Master Servicer by the Special Servicer, reduced by any amounts required to
be paid as taxes on such REO Income (including taxes imposed pursuant to Section
860G(c) of the Code); provided, however, that the interest portion of any
Scheduled Payment or Assumed Scheduled Payment shall be advanced at a per annum
rate equal to the sum of (x) the REMIC I Net Mortgage Rate relating to such
Mortgage Loan or Mortgage Loan relating to such REO Property and (y) the Trustee
Fee Rate, such that the Scheduled Payment or Assumed Scheduled Payment to be
advanced as a P&I Advance shall be net of the Servicing Fee and Excess Servicing
Fee; and provided, further, that the Scheduled Payment or Assumed Scheduled
Payment for any Mortgage Loan which has been modified shall be calculated based
on its terms as modified and provided, further, that the amount of the interest
portion of any P&I Advance with respect to a Mortgage Loan as to which there has
been an Appraisal Reduction will be an amount equal to the product of (i) the
amount of interest required to be advanced without giving effect to this proviso
and (ii) a fraction, the numerator of which is the Principal Balance of such
Mortgage Loan as of the immediately preceding Determination Date less any
Appraisal Reduction and the denominator of which is the Principal Balance of the
Mortgage Loan as of such Determination Date. All P&I Advances for any Mortgage
Loans that have been modified shall be calculated on the basis of their terms as
modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan
or REO Property, the amount of the P&I Advance for each Mortgage Loan computed
for any Distribution Date.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means initially
with respect to any Class of REMIC I Regular Interests, REMIC II Regular
Interests or REMIC Regular Certificates, other than the X Certificates, for any
Distribution Date, the rate set forth in the Preliminary Statement hereto. For
any Distribution Date occurring thereafter, the Pass-Through Rates for (i) the
REMIC I Regular Interests shall equal the REMIC I Net Mortgage Rate on the
related Mortgage Loan for such Distribution Date, (ii) the REMIC II Regular
Interests shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (iii) with respect to the Class A-1, Class A-2, Class A-3,
Class A-4, Class B, Class G, Class H, Class J, Class K, Class L, Class M, Class
N and Class O Certificates, the lesser of (A) the fixed rate corresponding to
such Class set forth in the Preliminary Statement hereto and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (iv) the Class X
Certificates, the per annum rate equal to the quotient of the Accrued
Certificate Interest thereon for such Distribution Date and the Class X Notional
Amount, (v) the Class C Certificates, the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date minus 0.13%, (vi) the Class D Certificates, the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (vii) the
Class E Certificates, the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date and (viii) the Class F Certificates, the Weighted Average
REMIC I Net Mortgage Rate for such Distribution Date.
"PERCENTAGE INTEREST" means with respect to each Class of
Certificates other than the Residual Certificates, the fraction of such Class
evidenced by such Certificate, expressed as a percentage (carried to four
decimal places and rounded, if necessary), the numerator of which is the
Certificate Balance or Notional Amount, as applicable, represented by such
Certificate determined as of the Closing Date (as stated on the face of such
Certificate) and the denominator of which is the aggregate Certificate Balance
or Notional Amount, as applicable, of all of the Certificates of such Class
determined as of the Closing Date. With respect to each Residual Certificate,
the percentage interest in distributions (if any) to be made with respect to the
relevant Class, as stated on the face of such Certificate.
"PERCENTAGE PREMIUM" means, with respect to any Distribution
Date, any amount received as a Prepayment Premium other than Yield Maintenance
Payment, that is calculated as a percentage of the principal amount prepaid.
"PERMITTED TRANSFEREE" means any Transferee other than a
Disqualified Organization.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PLACEMENT AGENT" means Morgan Stanley & Co. Incorporated.
"PHASE I ENVIRONMENTAL REPORT" means a report prepared at the
expense of the Person desiring to contribute such property, by an Independent
Person who regularly conducts environmental site assessments in accordance with
then current standards imposed by institutional commercial mortgage lenders and
who has had not less than five years experience in such matters which indicates
such property is in compliance with applicable Environmental Laws and that there
are no circumstances present at such property relating to the use, management or
disposal of any hazardous substances, hazardous materials, hazardous wastes or
petroleum based materials for which investigation, testing, monitoring,
containment, clean up or remediation could be required under any Federal, state
or local law or regulation.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor
regulations set forth in 29 C.F.R. section 2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth
in the preliminary statement hereto.
"PREPAYMENT INTEREST EXCESS" means, in a case in which a full
or partial Principal Prepayment or a Balloon Payment is made during any
Collection Period after the Due Date for such Mortgage Loan, the amount of
interest which accrues on the amount of such Principal Prepayment or Balloon
Payment from such Due Date to the date such payment was made (net of the
Servicing Fee and Excess Servicing Fee (or, if the related Mortgage Loan is a
Specially Serviced Mortgage Loan, the Special Servicing Fee) and the Trustee
Fee).
"PREPAYMENT INTEREST SHORTFALL" means, for any Distribution
Date and with respect to any Mortgage Loan the related Mortgagor has made a full
or partial Principal Prepayment or a Balloon Payment during the related
Collection Period, and the date such payment was made (or, in the case of a
Balloon Payment, the date through which interest thereon accrues) occurred prior
to the Due Date for such Mortgage Loan in such Collection Period, the excess of:
(A) the aggregate amount of interest (net of the Servicing Fee and Excess
Servicing Fee (or, if the related Mortgage Loan is a Specially Serviced Mortgage
Loan, the Special Servicing Fee) and the Trustee Fee) which would have accrued
on the Scheduled Principal Balance of such Mortgage Loan for the 30 days ending
on such Due Date if such Principal Prepayment or Balloon Payment had not been
made, over (B) the aggregate interest that did so accrue through the date such
payment was made.
"PREPAYMENT PREMIUM" means with respect to any Distribution
Date, the aggregate of all Yield Maintenance Payments or Percentage Premiums, if
any, received during the related Collection Period in connection with Principal
Prepayments or a Defeasance Loan.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan
or REO Mortgage Loan, for purposes of performing calculations with respect to
any Distribution Date, the principal balance of such Mortgage Loan or the
related REO Mortgage Loan outstanding as of the Cut-Off Date after taking into
account all principal and interest payments made or due prior to the Cut-Off
Date, reduced (to not less than zero) by (i) any payments or other collections
of amounts allocable to principal on such Mortgage Loan that have been collected
or received during any preceding Collection Period, other than any Scheduled
Payments due in any subsequent Collection Period, and (ii) the principal portion
of any Realized Loss incurred in respect of such Mortgage Loan during any
related Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the
Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class
O Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution
Date, the sum of the following amounts: (i) the principal portion of all
Scheduled Payments (other than the principal portion of Balloon Payments) and
any Assumed Scheduled Payments due or deemed due, as the case may be, in respect
of the Mortgage Loans and any REO Mortgage Loans for their respective Due Dates
occurring during the related Collection Period; (ii) all payments (including
Principal Prepayments and the principal portion of Balloon Payments) and any
other collections (including Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, Purchase Proceeds and REO Income) received on or in respect
of the Mortgage Loans during the related Collection Period and that were
identified and applied by the Master Servicer as recoveries of principal
thereof, in each case net of any portion of such payment or other collection
that represents a recovery of the principal portion of any Scheduled Payment
(other than a Balloon Payment) due, or of the principal portion of any Assumed
Scheduled Payment deemed due, in respect of the related Mortgage Loan on a Due
Date during or prior to the related Collection Period and not previously
recovered.
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary
payment or collection of principal on a Mortgage Loan which is received or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in advance of its scheduled Due Date,
including, without limitation, all proceeds, to the extent allocable to
principal, received from the payment of cash in connection with a substitution
shortfall pursuant to Section 2.3; provided, that the pledge by a Mortgagor of
Defeasance Collateral with respect to a Defeasance Loan shall not be deemed to
be a Principal Prepayment.
"PRIVATE PLACEMENT MEMORANDUM" has the meaning set forth in
the preliminary statement hereto.
"PROPOSED DISPOSITION" means a proposed disposition of any
Defaulted Mortgage Loan or the Mortgaged Property related thereto to be
performed as provided in Section 9.15 or 9.17 of this Agreement.
"PROSPECTUS" has the meaning set forth in the preliminary
statement hereto.
"PURCHASE PRICE" means, with respect to the purchase or
repurchase of a Mortgage Loan or REO Property pursuant to Article II or Article
IX of this Agreement, a price equal to the sum of (A) 100% of the unpaid
principal balance of such Mortgage Loan (or deemed principal balance, in the
case of an REO Property), plus (B) accrued but unpaid interest thereon
calculated at the Mortgage Rate to, but not including, the Due Date in the
Collection Period in which such purchase occurs, plus (C) the amount of any
expenses related to such Mortgage Loan or REO Property (including any Servicing
Advances, Advance Interest related to such Mortgage Loan and any Special
Servicer Fees and Liquidation Fees) that are reimbursable to the Master
Servicer, the Special Servicer or the Trustee.
"PURCHASE PROCEEDS" means any cash amounts received by the
Master Servicer in connection with: (i) the repurchase of a Mortgage Loan by a
Seller pursuant to Section 2.3 or (ii) the purchase of the Mortgage Loans and
REO Properties by the Depositor, the Master Servicer, the Special Servicer or
the holders of the Class R-I Certificates pursuant to Section 10.1(b).
"QIB" means a "qualified institutional buyer," as defined in
Rule 144A.
"QUALIFIED INSURER" means, (i) with respect to any Mortgage
Loan, an insurance company duly qualified as such under the laws of the state in
which the related Mortgaged Property is located, duly authorized and licensed in
such state to transact the applicable insurance business and to write the
insurance provided, and that has a claim paying ability rating no lower than two
ratings categories (without regard to pluses or minuses or numerical qualifiers)
lower than the highest rating of any outstanding Class of Certificates from time
to time, but in no event lower than "AA" by S&P, if rated by S&P or if not rated
by S&P, then S&P has issued a Rating Agency Confirmation with respect to such
insurer, and "AA" by Fitch if rated by Fitch or if not rated by Fitch, then
otherwise approved by Fitch, and (ii) with respect to the Servicer Errors and
Omissions Insurance Policy or Servicer Fidelity Bond an insurance company that
has a claim paying ability rating of no lower than two ratings categories
(without regard to pluses or minuses or numerical qualifiers) lower than the
highest rating of any outstanding Class of Certificates from time to time, but
in no event lower than "BBB" by S&P, if rated by S&P or if not rated by S&P,
then S&P has issued a Rating Agency Confirmation with respect to such insurer,
and "BBB" by Fitch if rated by Fitch or if not rated by Fitch, then "A-IX" by
A.M. Best or otherwise approved by Fitch, or (iii) in either case, a company not
satisfying clause (i) or (ii) but with respect to which Rating Agency
Confirmation is obtained.
"QUALIFIED MORTGAGE" means a Mortgage Loan that is a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code (but
without regard to the rule in Treasury Regulation Section 1.860G-2(f)(2) that
treats a defective obligation as a qualified mortgage, or any substantially
similar successor provision) and applicable Treasury Regulations promulgated
pursuant thereto.
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has a principal balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution, not
in excess of the principal balance of the Deleted Mortgage Loan; provided,
however, that, to the extent that the principal balance of such Mortgage Loan is
less than the principal balance of the Deleted Mortgage Loan, then such
differential in principal amount, together with interest thereon at the Mortgage
Rate on the related Mortgage Loan from the date as to which interest was last
paid through the last day of the month in which such substitution occurs, shall
be paid by the party effecting such substitution to the Master Servicer for
deposit into the Certificate Account, and shall be treated as a Principal
Prepayment hereunder; (ii) is accruing interest at a rate of interest at least
equal to that of the Deleted Mortgage Loan; (iii) has a remaining term to stated
maturity not greater than, and not more than two years less than, that of the
Deleted Mortgage Loan; (iv) has an original Loan-to-Value Ratio not higher than
that of the Deleted Mortgage Loan and a current Loan-to-Value ratio (equal to
the principal balance on the date of substitution divided by its current
Appraised Value) not higher than the current Loan-to-Value Ratio of the Deleted
Mortgage Loan; (v) will comply with all of the representations and warranties
relating to Mortgage Loans set forth herein, as of the date of substitution;
(vi) has a Phase I Environmental Report relating to the related Mortgaged
Property in its Mortgage Files and such Phase I Environmental Report does not,
in the good faith reasonable judgment of the Special Servicer, consistent with
the Servicing Standard raise material issues that have not been adequately
addressed; (vii) as to which the Trustee has received an Opinion of Counsel, at
the related Seller's expense, that such Mortgage Loan is a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code; and
(viii) has a Debt Service Coverage Ratio not lower than that of the Deleted
Mortgage Loan as of the Cut-Off Date unless otherwise approved by the Special
Servicer; provided that no Mortgage Loan may have a Maturity Date after the date
three years prior to the Final Rated Distribution Date, and provided, further,
that no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan
unless Rating Agency Confirmation is obtained. In the event that either one
mortgage loan is substituted for more than one Deleted Mortgage Loan or more
than one mortgage loan is substituted for one or more Deleted Mortgage Loans,
then (A) the principal balance referred to in clause (i) above shall be
determined on the basis of aggregate principal balances and (B) the rates
referred to in clauses (ii) above and the remaining term to stated maturity
referred to in clause (iii) above shall be determined on a weighted average
basis. Whenever a Qualifying Substitute Mortgage Loan is substituted for a
Deleted Mortgage Loan pursuant to this Agreement, the party effecting such
substitution shall certify that such Mortgage Loan meets all of the requirements
of this definition and shall send such certification to the Trustee, which shall
deliver a copy of such certification to the Special Servicer promptly, and in
any event within five Business Days, following the Trustee's receipt of such
certification.
"RATING AGENCIES" means Fitch and S&P.
"RATING AGENCY CONFIRMATION" means, with respect to any
matter, confirmation in writing by each Rating Agency that a proposed action,
failure to act, or other event specified herein will not in and of itself result
in the withdrawal, downgrade, or qualification, as applicable, of the rating
then assigned by such Rating Agency to any Class of Certificates then rated by
such Rating Agency.
"REALIZED INTEREST LOSS" means (i) in the case of a
Liquidation Realized Loss, the portion of any Liquidation Realized Loss that
exceeds the Realized Principal Loss on the related Mortgage Loan, (ii) in the
case of a Bankruptcy Loss, the portion of such Realized Loss that exceeds the
Realized Principal Loss on the related Mortgage Loan, (iii) in the case of an
Expense Loss, an Expense Loss resulting in any period from the payment of the
Special Servicing Fee or (iv) in the case of a Modification Loss, a Modification
Loss described in clauses (ii) and (iii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a
Modification Loss, a Bankruptcy Loss or an Expense Loss.
"REALIZED PRINCIPAL LOSS" means (i) in the case of a
Liquidation Realized Loss, the amount of such Realized Loss, to the extent that
it does not exceed the principal balance of the Mortgage Loan (or deemed
principal balance, in the case of REO Property), (ii) in the case of a
Modification Loss, the amount of such Modification Loss described in clause (i)
of the definition thereof, (iii) in the case of a Bankruptcy Loss, the amount of
such Realized Loss, to the extent that it does not exceed the principal balance
of the Mortgage Loan (or deemed principal balance, in the case of REO Property),
and (iv) in the case of an Expense Loss, the portion thereof not treated as a
Realized Interest Loss.
"RECORD DATE" means, for each Distribution Date and each Class
of Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan or REO Property following the period
in which a Final Recovery Determination occurs plus other amounts defined as
"Recoveries" herein.
"REGISTERED CERTIFICATES" means, collectively, the Class A-1,
Class A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class E and Class F
Certificates.
"REGULATION S" means Regulation S under the 1933 Act.
"REGULATION S CERTIFICATE" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S
Permanent Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with
respect to any Class of Certificates offered and sold outside of the United
States in reliance on Regulation S, a single temporary global Certificate, in
definitive, fully registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced
Mortgage Loan with respect to which (i) three consecutive Scheduled Payments
have been made (in the case of any such Mortgage Loan that was modified, based
on the modified terms), (ii) no other Servicing Transfer Event has occurred and
is continuing (or with respect to determining whether a Required Appraisal Loan
is a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other
Appraisal Event has occurred and is continuing) and (iii) the Trust has been
reimbursed for all costs incurred as a result of the occurrence of a Servicing
Transfer Event or such amounts have been forgiven.
"RELEASE DATE" means the date 40 days after the later of (i)
the commencement of the offering of the Certificates and (ii) the Closing Date.
"REMIC" means a real estate mortgage investment conduit within
the meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of
the Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and the Distribution Account, the Insurance Policies and any
REO Properties, for which a REMIC election has been made pursuant to Section
12.1(a) hereof.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular
Interests and the Class R-I Certificates.
"REMIC I NET MORTGAGE RATE" means, as to any REMIC I Regular
Interest, a rate per annum equal to the Mortgage Rate for the related Mortgage
Loan as of the Cut-Off Date (and without regard to any modification, waiver or
amendment of the terms thereof following the Cut-Off Date) calculated on a 360
day year consisting of twelve 30 day months regardless of the actual terms of
the related Mortgage Loan, minus the Administrative Cost Rate.
"REMIC I REGULAR INTERESTS" means, collectively, the
uncertificated interests designated as "regular interests" in REMIC I, which
shall consist of, with respect to each Mortgage Loan, an interest having an
initial Certificate Balance equal to the Cut-Off Date Scheduled Principal
Balance of such Mortgage Loan, and which has a Pass-Through Rate equal to the
REMIC I Net Mortgage Rate of such Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of
the REMIC I Regular Interests for which a REMIC election has been made pursuant
to Section 12.1(a) hereof.
"REMIC II A-2 SCHEDULED PRINCIPAL AMOUNT" means, with respect
to any Distribution Date, an amount equal to the product of (a) the Principal
Distribution Amount and (b) a fraction, the numerator of which is equal to the
Aggregate Certificate Balance of the REMIC II Regular Interest Class A-2 and the
denominator of which is equal to the sum of the Aggregate Certificate Balances
of the REMIC II Regular Interest Class A-1, REMIC II Regular Interest Class A-2
and REMIC II Regular Interest Class A-3.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class A-1 Certificates, and which has a Pass-Through Rate equal
to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to the aggregate
Certificates Balance of the Class A-2 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-3" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class A-3 Certificates, and which has a Pass-Through Rate equal
to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to the aggregate
Certificates Balance of the Class A-4 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class B Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class C Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class D Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class E Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class F Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class G Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class H Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class J Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class K Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class L Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class M Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST N" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class N Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST O" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the aggregate Certificate
Balance of the Class O Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II
Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest
A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest B, REMIC II
Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E,
REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II Regular
Interest H, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II
Regular Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N and
REMIC II Regular Interest O.
"REMIC III CERTIFICATES" has the meaning set forth in the
final paragraph of the Preliminary Statement hereto.
"REMIC III REGULAR INTERESTS" means, collectively, the Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K and Class L Certificates, Class M
Certificates, Class N Certificates and Class O Certificates.
"REMIC POOL" means each of the three segregated pools of
assets designated as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income
tax law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations and rulings promulgated thereunder, as the foregoing
may be in effect from time to time and taking account, as appropriate, of any
proposed legislation which, as proposed, would have an effective date prior to
enactment thereof and any proposed regulations.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N and Class O Certificates.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO
Property, income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section
9.14(a) hereof.
"REO DISPOSITION" means the receipt by the Master Servicer or
the Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"REO INCOME" means, with respect to any REO Property for any
Collection Period, all income received in connection with such REO Property
during such period less any operating expenses, utilities, real estate taxes,
management fees, insurance premiums, expenses for maintenance and repairs and
any other capital expenses directly related to such REO Property paid during
such period.
"REO MORTGAGE LOAN" means a Mortgage Loan as to which the
related Mortgaged Property is an REO Property.
"REO PROPERTY" means a Mortgaged Property acquired by the
Trust through foreclosure, deed-in-lieu of foreclosure, abandonment or
reclamation from bankruptcy in connection with a Defaulted Mortgage Loan or
otherwise treated as foreclosure property under the REMIC Provisions.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"REQUEST FOR RELEASE" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan as to which
an Appraisal Event has occurred. A Mortgage Loan will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"REQUIRED INSURANCE POLICY" means with respect to any
Mortgaged Property, any insurance policy that is required to be maintained from
time to time under this Agreement in respect of such Mortgaged Property,
including each Standard Hazard Insurance Policy and, if applicable, flood
insurance policy.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the
Class R-I Certificates, with respect to REMIC II, the Class R-II Certificates
and with respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the
initial Trustee, any officer assigned to the Capital Markets Fiduciary Services
(CMBS), with specific responsibilities for the matters contemplated by this
Agreement and when used with respect to any successor Trustee, any Vice
President, Assistant Vice President, corporate trust officer or any assistant
corporate trust officer.
"RETIREMENT SYSTEM" has the meaning assigned in the
Preliminary Statement hereof.
"RETIREMENT SYSTEM LOANS" means collectively, those Mortgage
Loans sold to the Depositor pursuant to Mortgage Loan Purchase Agreement II and
shown as Schedule II hereto.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class O,
Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C, Class B and Class A Certificates.
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any
Class of Certificates offered and sold in reliance on Rule 144A or to certain
institutional "accredited investors" within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D of the 1933 Act, a single, permanent global
Certificate, in definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Rating Services, a division of
The McGraw-Hill Companies, Inc.
"SCHEDULED PAYMENT" means each scheduled payment of principal
of, and interest on, a Mortgage Loan required to be paid on its Due Date by the
Mortgagor in accordance with the terms of the related Mortgage Note (excluding
all amounts of principal and interest which were due on or before the Cut-Off
Date, whenever received, and taking account of any modifications thereof and the
effects of any Debt Service Reduction Amounts and Deficient Valuation Amounts).
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any
Mortgage Loan or REO Mortgage Loan, for purposes of performing calculations with
respect to any Distribution Date, the Principal Balance thereof minus the
aggregate amount of any P&I Advances of principal previously made with respect
to such Mortgage Loan or REO Mortgage Loan.
"SELLER" means General American or Retirement System, as the
case may be.
"SENIOR CERTIFICATES" means the Class A and Class X
Certificates.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS
AND OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer or the Trustee, as the
case may be, in accordance with Section 8.2, Section 9.2 and Section 7.17,
respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or
insurance policy under which the insurer agrees to indemnify the Master
Servicer, the Special Servicer or the Trustee, as the case may be, (subject to
standard exclusions) for all losses (less any deductible) sustained as a result
of any theft, embezzlement, fraud or other dishonest act on the part of the
Master Servicer's, Special Servicer's or the Trustee's, as the case may be,
directors, officers or employees and is maintained in accordance with Section
8.2, Section 9.2 and Section 7.17, respectively.
"SERVICER'S MORTGAGE FILE" means copies of mortgage documents
listed in the definition of Mortgage File relating to a Mortgage Loan in the
possession of the Master Servicer or originals of any of such documents released
to the Master Servicer from time to time pursuant to the terms of this
Agreement.
"SERVICING ADVANCE" means any cost or expense of the Master
Servicer or the Trustee, as the case may be, designated as a Servicing Advance
pursuant to this Agreement and any other costs and expenses incurred by the
Master Servicer or the Trustee, as the case may be, to protect and preserve the
security for such Mortgage Loan.
"SERVICING FEE" means for each calendar month, as to each
Mortgage Loan (including REO Mortgage Loans and Defeasance Loans), the portion
of the Servicing Fee Rate applicable to such month (determined in the same
manner as the applicable Mortgage Rate is determined for such Mortgage Loan for
such month) multiplied by the Scheduled Principal Balance of each such Mortgage
Loan immediately before the Due Date occurring in such month, subject to
reduction in respect of Compensating Interest Payment, as set forth in Section
8.10(c) but not including the Excess Servicing Fee.
"SERVICING FEE RATE" means, with respect to each Mortgage Loan
(including any Mortgage Loan relating to an REO Property), 0.04% per annum.
"SERVICING OFFICER" means any officer or employee of the
Master Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans whose name and specimen signature appear on a
list of servicing officers or employees furnished to the Trustee by the Master
Servicer and signed by an officer of the Master Servicer, as such list may from
time to time be amended.
"SERVICING STANDARD" means, with respect to the Master
Servicer and the Special Servicer the higher of the following standards of care:
(a) in the same manner in which and with the same care,
skill, prudence and diligence with which the Master Servicer or the Special
Servicer, as the case may be, services and administers similar mortgage loans
for other third-party portfolios, giving due consideration to customary and
usual standards of practice of prudent institutional commercial mortgage lenders
servicing their own mortgage loans and to the maximization of the net present
value of the mortgage loans; or
(b) the care, skill, prudence and diligence the Master
Servicer or the Special Servicer, as the case may be, uses for loans which it
owns and which are similar to the Mortgage Loans, giving due consideration to
the maximization of the net present value of the mortgage loans;
but without regard to: any relationship that the Master Servicer or Special
Servicer or any Affiliate of the Master Servicer or Special Servicer may have
with the related Mortgagor; the ownership of any Certificate by the Master
Servicer or Special Servicer or any Affiliate; the ownership of any Junior
Indebtedness by the Master Servicer or Special Servicer or any Affiliate with
respect to the Mortgaged Property securing any Mortgage Loan; the Master
Servicer or Special Servicer's right to receive compensation for its services
hereunder or with respect to any particular transaction; the servicing of the
Mortgage Loans that are not Specially Serviced Mortgage Loans by the Master
Servicer; and the Master Servicer's obligation to make Advances and Servicing
Advances as specified herein or General American's obligation to repurchase any
Mortgage Loan under the Mortgage Loan Purchase Agreement I or Retirement
System's obligation to repurchase any Mortgage Loan under Mortgage Loan Purchase
Agreement II.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) any Mortgage Loan as to which a Balloon Payment is past
due, and the Master Servicer has determined, in its good faith reasonable
judgment in accordance with the Servicing Standard, that payment is unlikely to
be made on or before the Second Due Date succeeding the date the Balloon Payment
was due, or any other payment is more than 60 days past due or has not been made
on or before the second Due Date following the date such payment was due; (ii)
any Mortgage Loan as to which, to the Master Servicer's knowledge, the Mortgagor
has consented to the appointment of a receiver or conservator in any insolvency
or similar proceeding of, or relating to, such Mortgagor or to all or
substantially all of its property, or the Mortgagor has become the subject of an
involuntary appointment of a conservator or a receiver or a decree or order
issued under a bankruptcy, insolvency or similar law and such decree or order
shall have remained undischarged or unstayed for a period of 60 days; (iii) any
Mortgage Loan as to which the Master Servicer shall have received notice of the
foreclosure or proposed foreclosure of any other lien on the Mortgaged Property;
(iv) any Mortgage Loan as to which the Master Servicer has knowledge of a
default (other than a failure by the related Mortgagor to pay principal or
interest) which in the good faith reasonable judgment of the Master Servicer
materially and adversely affects the interests of the Certificateholders and
which has occurred and remains unremedied for the applicable grace period
specified in such Mortgage Loan (or, if no grace period is specified, 60 days);
(v) any Mortgage Loan as to which the Mortgagor admits in writing its inability
to pay its debts generally as they become due, files a petition to take
advantage of any applicable insolvency or reorganization statute, makes an
assignment for the benefit of its creditors or voluntarily suspends payment of
its obligations; and (vi) any Mortgage Loan as to which, in the good faith
reasonable judgment of the Master Servicer, a default has occurred or in the
judgment of the Master Servicer is imminent or is likely to occur within 60
days.
"SINGLE-PURPOSE ENTITY" means a Person, other than an
individual, whose organizational documents provide that it is formed solely for
the purpose of owning and operating Defeasance Collateral for the benefit of the
Trust and which (i) does not engage in any business unrelated thereto and the
financing thereof; (ii) does not have any assets other than those related to its
interest in Defeasance Collateral; (iii) maintains its own books, records and
accounts, in each case which are separate and apart from the books, records and
accounts of any other Person; (iv) conducts business in its own name and uses
separate stationery, invoices and checks; (v) does not guarantee or assume the
debts or obligations of any other Person; (vi) does not commingle its assets or
funds with those of any other Person; (vii) transacts business with affiliates
on an arm's length basis pursuant to written agreements; (viii) holds itself out
as being a legal entity, separate and apart from any other Person; (ix) does not
commingle its assets with those of any other Person and holds all of its assets
in its own name; (x) pays its own liabilities and expenses only out of its own
funds; (xi) observes all organizational formalities; (xii) pays the salaries of
its own employees from its own funds; (xiii) will not hold out its credit as
being available to satisfy the obligations of any other Person; (xiv) will not
acquire the obligations or securities of its Affiliates; (xv) will not make
loans to any other Person or buy or hold evidence of indebtedness issued by any
other Person (other than cash and investment-grade securities); (xvi) will
allocate fairly and reasonably any overhead expenses that are shared with an
Affiliate, including paying for office space and services performed by any
employee of an Affiliate; (xvii) will not pledge its assets for the benefit of
any other Person; (xviii) will correct any known misunderstanding regarding its
separate identity; (xix) will not identify itself as a division of any other
Person; (xx) will maintain adequate capital in light of its contemplated
business operations; (xxi) will not incur indebtedness other than the related
Mortgage Loan; (xxii) will not engage in any dissolution, liquidation,
consolidation, merger or sale of its assets and (xxiii) will at all times have
at least one duly appointed member of the board of directors (an "Independent
Director") or will have a managing member or general partner which will have an
Independent Director, who shall not have been at the time of such individual's
appointment, and may not have been at any time during the preceding five years,
and shall not be at any time while serving as Independent Director: (1) a
shareholder of, or an officer, director, attorney, counsel, partner, member or
employee of, the Single-Purpose Entity or any affiliate, (2) a customer of, or
supplier to, or other person who derives more than 10% of its purchases or
revenues from its activities with the Single-Purpose Entity or any affiliate,
(3) a person or other entity controlling, controlled by or under common control
with any such shareholder, officer, director, attorney, counsel, partner,
member, employee, customer, supplier or other person, or (4) a member of the
immediate family of any such shareholder, officer, director, attorney, counsel,
partner, member, employee, customer, supplier or other person. As used herein,
the term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management, policies or activities or a
person or entity, whether through ownership of voting securities or other
beneficial interest, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. The entity's
organizational documents also provide that any dissolution and winding up or
insolvency filing for such entity requires the unanimous consent of all partners
or members, as applicable, and that such documents may not be amended with
respect to the Single-Purpose Entity requirements.
"SPECIAL SERVICER" means Conning Asset Management Company or
any successor Special Servicer as herein provided.
"SPECIAL SERVICER COMPENSATION" means, with respect to any
applicable period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out Fees for such period.
"SPECIAL SERVICER MONTHLY REPORTS" mean the reports
substantially in the form of Exhibit O attached hereto.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day
preceding each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to
each Mortgage Loan which is a Specially Serviced Mortgage Loan, the fraction or
portion of the Special Servicing Fee Rate applicable to such month (determined
using the same interest accrual methodology that is applied with respect to the
Mortgage Rate for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of such Specially Serviced Mortgage Loan immediately before
the Due Date occurring in such month, subject to reduction in respect of
Compensating Interest Payments as set forth in Section 9.11.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of
the Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee and the Master Servicer by the Special Servicer signed by an officer of
the Special Servicer, as such list may from time to time be amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan with respect to which the Master Servicer has
notified the Special Servicer and the Trustee that a Servicing Transfer Event
has occurred (which notice shall be effective upon receipt) and the Special
Servicer has received all information, documents and records relating to such
Mortgage Loan as reasonably requested by the Special Servicer to enable it to
assume its duties with respect to such Mortgage Loan. A Specially Serviced
Mortgage Loan shall cease to be a Specially Serviced Mortgage Loan from and
after the date on which the Special Servicer notifies the Master Servicer and
the Trustee, in accordance with Section 8.1(b), that such Mortgage Loan has
become a Rehabilitated Mortgage Loan with respect to such Servicing Transfer
Event, unless and until the Master Servicer notifies the Special Servicer and
the Trustee, in accordance with Section 8.1(b) that another Servicing Transfer
Event with respect to such Mortgage Loan exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"SUB-SERVICER" shall have the meaning set forth in Section
8.4.
"SUB-SERVICING FEE" means with respect to each Mortgage Loan
(including Mortgage Loans relating to REO Properties) the monthly fee payable to
the applicable Sub-Servicer based on the per annum rate specified on the
Mortgage Loan Schedule.
"SUBORDINATE CERTIFICATES" means, collectively, the Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N and Class O Certificates.
"TAX MATTERS PERSON" means the person designated as the "tax
matters person" of each REMIC Pool pursuant to Treasury Regulation Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" shall have the meaning set forth in
Section 10.1(b) herein.
"TITLE INSURANCE POLICY" means a title insurance policy
maintained with respect to a Mortgage Loan issued on the date of origination of
the related Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale,
pledge, hypothecation, or other form of assignment of any Ownership Interest in
a Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement,
the assets which consist of all the assets of REMIC I (including the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account, the Distribution Account, the Insurance Policies, any REO Properties
and other items referred to in Section 2.1(a) hereof), REMIC II and REMIC III.
"TRUSTEE" means The Chase Manhattan Bank, as Trustee, or its
successor-in-interest, or if any successor trustee, or any co-trustee shall be
appointed as herein provided, then Trustee shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
"TRUSTEE FEE" means for each calendar month, as to each
Mortgage Loan (including REO Mortgage Loans and Defeasance Loans), the portion
of the Trustee Fee Rate applicable to such month (determined using the same
interest accrual methodology that is applied with respect to the Mortgage Rate
for such Mortgage Loan for such month) multiplied by the Scheduled Principal
Balance of each Mortgage Loan immediately before the Due Date occurring in such
month.
"TRUSTEE FEE RATE" means 0.0025% per annum.
"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in
the definition of Mortgage File hereof pertaining to a particular Mortgage Loan
and any additional documents required to be added to the Mortgage File pursuant
to this Agreement; provided that whenever the term "Trustee Mortgage File" is
used to refer to documents actually received by the Trustee or a Custodian on
its behalf, such terms shall not be deemed to include such documents required to
be included therein unless they are actually so received.
"UCC" means The Uniform Commercial Code, as enacted in each
applicable state.
"UCC FINANCING STATEMENT" means a financing statement executed
and filed pursuant to the UCC, as in effect in the relevant jurisdiction.
"UNDERWRITER" means each of Morgan Stanley & Co. Incorporated,
Donaldson, Lufkin & Jenrette Securities Corporation and Prudential Securities
Incorporated or their respective successors in interest.
"UNPAID INTEREST" means, on any Distribution Date with respect
to any Class of Interests or Certificates (other than the Residual
Certificates), the portion of Distributable Certificate Interest for such Class
remaining unpaid as of the close of business on the preceding Distribution Date,
plus one month's interest thereon at the applicable Pass-Through Rate other than
unpaid interest relating to Net Aggregate Prepayment Interest Shortfalls.
"U.S. PERSON" means a person that is a citizen or resident of
the United States, a corporation or partnership (except to the extent provided
in applicable Treasury regulations), created or organized in or under the laws
of the United States, any State or the District of Columbia, including an entity
treated as a corporation or partnership for federal income tax purposes, an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S.
Persons).
"USAP" shall have the meaning set forth in Section 8.13.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with
respect to any Distribution Date, the weighted average of the REMIC I Net
Mortgage Rates for the REMIC I Regular Interests, weighted on the basis of their
respective Certificate Balances as of the close of business on the preceding
Distribution Date.
"WORK-OUT FEE" means a fee payable with respect to any
Rehabilitated Mortgage Loan, equal to the product of (x) 1.00% and (y) the
amount of each collection of interest (other than default interest) and
principal received on such Mortgage Loan for so long as it remains a
Rehabilitated Mortgage Loan.
"YIELD MAINTENANCE PAYMENT" means, with respect to any
Distribution Date, any amount received as a Prepayment Premium which is
calculated based upon a yield maintenance formula.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS.
Calculations required to be made by the Trustee pursuant to this Agreement with
respect to any Mortgage Loan shall be made based upon then-current information
as to the terms of the Mortgage Loans and reports of payments received from the
Master Servicer on such Mortgage Loans and payments to be made to the Trustee as
supplied to the Trustee by the Master Servicer. The Trustee shall not be
required to recompute, verify or recalculate the information supplied to it by
the Master Servicer and may conclusively rely upon such information in making
such calculations. If, however, a Responsible Officer of the Trustee has actual
knowledge of an error in the calculations, the Trustee shall inform the Master
Servicer of such error.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued
interest on any Certificate shall be calculated based upon a 360-day year
consisting of twelve 30-day months and Pass-Through Rates shall be carried out
to eight decimal places, rounded if necessary. All dollar amounts calculated
hereunder shall be rounded to the nearest penny.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date
and a "related" Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Monthly Statement to the Certificateholders, Special Servicer
Remittance Date, Master Servicer Remittance Date or Determination Date, such
reference shall be to the Collection Period, Interest Accrual Period, Record
Date, Due Date, Report Date, Special Servicer Remittance Date, Master Servicer
Remittance Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in Section 1.1 shall have the respective meanings given to them under
generally accepted accounting principles or regulatory accounting principles, as
applicable.
(c) The words "hereof," "herein" and "hereunder," and
words of similar import, when used in this Agreement, shall refer to this
agreement as a whole and not to any particular provision of this Agreement, and
references to Sections, Schedules and Exhibits contained in this Agreement are
references to Sections, Schedules and Exhibits in or to this Agreement unless
otherwise specified.
(d) Whenever a term is defined herein, the definition
ascribed to such term shall be equally applicable to both the singular and
plural forms of such term and to masculine, feminine and neuter genders of such
term.
(e) This Agreement is the result of arm's-length
negotiations between the parties and has been reviewed by each party hereto and
its counsel. Each party agrees that any ambiguity in this Agreement shall not be
interpreted against the party drafting the particular clause which is in
question.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby assign to the Trustee, without recourse, for the
benefit of the Certificateholders all the right, title and interest of the
Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage
Loan Schedule, (ii) the Depositor's rights under each Mortgage Loan Purchase
Agreement that are permitted to be assigned pursuant to Sections 14 or 15
thereof as applicable, (iii) the Initial Deposit (which shall be deposited into
the Certificate Account) and (iv) all other assets included or to be included in
REMIC I for the benefit of REMIC II and REMIC III. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans and due after the Cut-Off Date. The transfer of the Mortgage Loans and the
related rights and property accomplished hereby is absolute and is intended by
the parties to constitute a sale. In connection with the initial sale of the
Certificates by the Depositor, the purchase price to be paid includes a portion
attributable to interest accruing on the Certificates from the Cut-Off Date.
(b) In connection with the Depositor's assignment
pursuant to Section 2.1(a) above, the Depositor shall direct, and hereby
represents and warrants that it has directed, each Seller pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage Note for each
Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of
the definition of "Mortgage File." The Depositor hereby represents that each
Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement,
to deliver to the Trustee the remaining documents constituting the Mortgage File
for each Mortgage Loan within 30 days following the Closing Date. None of the
Trustee, any Custodian, the Master Servicer or the Special Servicer shall be
liable for any failure by either Seller or the Depositor to comply with the
document delivery requirements of the Mortgage Loan Purchase Agreements and this
Section 2.1(b).
(c) The Master Servicer shall, at the expense of the
applicable Seller of the related Mortgage Loan, as to each Mortgage Loan,
promptly (and in any event within 45 days following the receipt thereof) cause
to be submitted for recording or filing, as the case may be, in the appropriate
public office for real property records or UCC Financing Statements, as
appropriate, each assignment to the Trustee referred to in clauses (iv), (v),
(vi) and (ix) of the definition of "Mortgage File". Each such assignment shall
reflect that it should be returned by the public recording office to the Trustee
following recording or filing; provided that in those instances where the public
recording office retains the original assignment of Mortgage or assignment of
Assignment of Leases the Master Servicer shall obtain therefrom at the expense
of the related Seller a certified copy of the recorded original. The Master
Servicer shall forward copies thereof to the Trustee and the Special Servicer.
If any such document or instrument is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, the Master Servicer shall direct
each Seller pursuant to the applicable Mortgage Loan Purchase Agreement promptly
to prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Master Servicer shall upon receipt thereof
cause the same to be duly recorded or filed, as appropriate.
(d) The Depositor shall deliver, or shall cause the
Sellers to deliver, all relevant servicing documents and records in the
possession of the Depositor or the Sellers that relate to the Mortgage Loans and
that are not required to be a part of a Mortgage File in accordance with the
definition thereof to the Master Servicer on or before the Closing Date and such
documents and records shall be held by the Master Servicer on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Depositor shall
deliver or cause the related Seller to deliver to the Special Servicer a copy of
each Mortgage File to the extent that (i) such copy has not previously been
delivered to the Special Servicer and (ii) the Special Servicer requests (in
writing) such copy within 180 days following the Closing Date. The Depositor
shall deliver or cause the related Seller to deliver such copy within a
reasonable period following such request by the Special Servicer.
(e) In connection with the Depositor's assignment
pursuant to Section 2.1(a) above, the Depositor shall deliver to the Trustee on
or before the Closing Date a copy of a fully executed counterpart of each
Mortgage Loan Purchase Agreement, as in full force and effect on the Closing
Date, which Mortgage Loan Purchase Agreements shall contain the representations
and warranties made by the Sellers with respect to each related Mortgage Loan as
of the Closing Date as are set forth on Exhibits R-1 and R-2 hereto.
(f) Concurrently herewith, the Depositor has acquired the
General American Loans from General American and the Retirement System Loans
from Retirement System. The Depositor will deliver the original Mortgage Notes
(or lost note affidavits with true and complete copies of the related Mortgage
Notes, as described in the definition of Mortgage File) relating to the General
American Loans to the Trustee, with the Trustee, on behalf of the
Certificateholders, inserted in the endorsement in blank executed by General
American, to effect the transfer to the Trustee of such Mortgage Notes and all
related deeds of trust, mortgages and other loan documents. The Depositor will
deliver the original Mortgage Notes relating to the Retirement System Loans to
the Trustee, with the Trustee, on behalf of the Certificateholders, inserted in
the endorsement in blank executed by Retirement System, as described in the
definition of Mortgage file, to effect the transfer to the Trustee of such
Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. To avoid the unnecessary expense and administrative inconvenience
associated with the execution and recording of multiple assignment documents,
General American and Retirement System, as applicable, are required under the
Mortgage Loan Purchase Agreements to deliver Assignments of Mortgages and
assignments of UCC financing statements naming the Trustee, on behalf of the
Certificateholders, as assignee. Notwithstanding the fact that the assignments
shall name the Trustee, on behalf of the Certificateholders, as the assignee,
the parties hereto acknowledge and agree that for all purposes the General
American Loans shall be deemed to have been transferred from General American to
the Depositor, the Retirement System Loans shall be deemed to have been
transferred from Retirement System to the Depositor, and all Mortgage Loans
shall be deemed to have been transferred from the Depositor to the Trustee on
behalf of the Certificateholders.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee will hold (i)
the documents constituting a part of the Mortgage Files delivered to it, (ii)
the REMIC I Regular Interests and (iii) the REMIC II Regular Interests, in each
case, in trust for the use and benefit of all present and future
Certificateholders.
Upon execution and delivery of this Agreement in respect of
the Initial Certification, and within 90 days after the Closing Date in respect
of the Final Certification, the Trustee shall examine the Mortgage Files in its
possession, and shall deliver to the Depositor, the Master Servicer and the
Special Servicer a certification (the "Initial Certification" and the "Final
Certification", respectively, in the respective forms set forth as Exhibit B-1
and Exhibit B-2 hereto) (i) in the case of the Initial Certification, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in the schedule of exceptions to Mortgage File delivery attached thereto, to the
effect that: (A) all documents pursuant to clause (i) of the definition of
Mortgage File are in its possession, (B) such documents have been reviewed by it
and have not been materially mutilated, damaged, defaced, torn or otherwise
physically altered, and such documents relate to such Mortgage Loan, and (C)
each Mortgage Note has been endorsed as provided in clause (i) of the definition
of Mortgage File, and (ii) in the case of the Final Certification, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in the schedule of exceptions to Mortgage File delivery attached thereto, to the
effect that: (A) all documents pursuant to clauses (i), (ii), (iv), (v) and
(viii) of the definition of Mortgage File required to be included in the
Mortgage File, and with respect to all documents specified in the other clauses
of the definition of Mortgage File to the extent known by a Responsible Officer
of the Trustee to be required pursuant to this Agreement, are in its possession,
(B) such documents have been reviewed by it and have not been materially
mutilated, damaged, defaced, torn or otherwise physically altered, and such
documents relate to such Mortgage Loan, (C) based on its examination and only as
to the Mortgage Note and Mortgage, the street address of the Mortgaged Property
and the name of the Mortgagor set forth in the Mortgage Loan Schedule respecting
such Mortgage Loan accurately reflects the information contained in the
documents in the Mortgage File, and (D) each Mortgage Note has been endorsed and
each Assignment of Mortgage has been delivered as provided in clause (i) and
clause (iv), respectively, of the definition of Mortgage File. The Trustee shall
deliver to the Master Servicer, the Special Servicer and each Seller (as to its
respective Mortgage Loans only), a copy of such Final Certification. Within 360
days after the Cut-Off Date, the Trustee shall provide a confirmation of receipt
of recorded assignments of Mortgage to the Master Servicer, the Special Servicer
and each Seller, and if any recorded assignment of Mortgage has not been
received by the Trustee by such time, the Trustee shall provide information in
such confirmation on the status of missing assignments. In giving the
certifications required above, the Trustee shall be under no obligation or duty
to inspect, review or examine any such documents, instruments, securities or
other papers to determine whether they or the signatures thereon are valid,
legal, genuine, enforceable, in recordable form or appropriate for their
represented purposes, or that they are other than what they purport to be on
their face, or to determine whether any Mortgage File should include any
assumption agreement, modification agreement, consolidation agreement, extension
agreement, Assignment of Lease, ground lease, UCC financing statement, guaranty,
written assurance, substitution agreement, lock box agreement, intercreditor
agreement, management agreement or letter of credit.
If, in the course of such review, the Trustee finds any
document constituting a part of a Trustee Mortgage File which does not meet the
requirements of clauses (A) through (D) in the preceding paragraph, the Trustee
shall promptly notify the applicable Seller, the Master Servicer, the Special
Servicer, the Operating Adviser, and the Depositor in writing and the Master
Servicer shall, and the Special Servicer may, request such Seller to correct or
cure such defect in the manner and within the period or periods set forth in the
applicable Mortgage Loan Purchase Agreement and absent such correction or cure,
and, in the case of a defect which results from a failure to meet one or more
requirements of clauses (A) through (C) in the preceding paragraph, such defect
materially and adversely affects the value of the related Mortgage Loan or the
interest of the Trustee in the related Mortgage Loan (in the good faith judgment
of the Master Servicer or the Trustee), or in any event in the case of a defect
under (D), the Master Servicer shall, and the Special Servicer may, request the
applicable Seller, at such Seller's election, to, and such Seller shall be
required promptly upon such request, either (i) substitute for the related
Mortgage Loan, without recourse, a Qualifying Substitute Mortgage Loan or Loans,
which substitution shall be accomplished in the manner and subject to the
conditions set forth in Section 2.3; or (ii) purchase such Mortgage Loan from
the Trust at the Purchase Price therefor in accordance with the related Mortgage
Loan Purchase Agreement. The Purchase Price for any such Mortgage Loan shall be
paid to the Master Servicer and deposited by the Master Servicer in the
Certificate Account. Upon receipt by the Trustee of written notification of
deposit of the Purchase Price or other amount required of the applicable Seller,
signed by a Servicing Officer of the Master Servicer (which notification shall
include a statement as to the accuracy of the calculation of the Purchase Price
or other required deposit), the Trustee shall release the related Trustee
Mortgage File to the applicable Seller and the Trustee and the Depositor shall
execute and deliver such instruments of transfer or assignment in the forms
presented to it, in each case without recourse, representation or warranty as
shall be necessary to vest in such Seller, or its designee, title (to the extent
that such title was transferred to the Depositor or the Trustee) to any Mortgage
Loan released pursuant hereto.
The Trustee or its authorized agents shall retain possession
and custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR DOCUMENT
DEFECTS AND BREACHES OF REPRESENTATIONS AND WARRANTIES.
(a) If any party hereto discovers that any document or
documents constituting a part of a Mortgage File has not been delivered as and
when required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgage
Properties as set forth in the related Mortgage Loan Purchase Agreements, and in
either case such defect (a "Document Defect") or breach (a "Breach") materially
and adversely affects the interests of the holders of the Certificates, such
party shall give prompt written notice to the other parties hereto and to each
Rating Agency. Promptly upon becoming aware of any such Document Defect or
Breach, the Master Servicer shall, and the Special Servicer may, request that
the related Seller, not later than 90 days from such Seller's receipt of the
notice of such Document Defect or Breach, cure such Document Defect or Breach,
as the case may be, in all material respects; provided, however, that if such
Document Defect or Breach, as the case may be, cannot be corrected or cured in
all material respects within such 90-day period, but the related Seller is
diligently attempting to effect such correction or cure, as certified by such
Seller in an Officer's Certificate delivered to the Trustee, then the cure
period will be extended for an additional 90 days.
If any such Document Defect or Breach cannot be corrected or
cured in all material respects within the above cure periods, the related Seller
will be obligated, not later than the last day of such permitted cure period, to
(i) repurchase the affected Mortgage Loan from the Trust at the applicable
Purchase Price in accordance with the related Mortgage Loan Purchase Agreement,
or (ii) if within the three-month period commencing on the Closing Date (or
within the two-year period commencing on the Closing Date if the related
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)), at
the Seller's option, replace such Mortgage Loan with a Qualifying Substitute
Mortgage Loan. If such Document Defect or Breach would cause the Mortgage Loan
to be other than a "qualified mortgage" (as defined in the Code), then
notwithstanding the previous sentence, repurchase must occur within 90 days from
the earlier of the date the Seller discovered or was notified of the defect or
substitution must occur within the earlier of (i) 90 days from the earlier of
the date the Seller discovered or was notified of the defect or (ii) two years
from the Closing Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the
Master Servicer shall cause the related Seller to deliver to the Trustee for
such Qualifying Substitute Mortgage Loan or Loans, the Mortgage Note, the
Mortgage, the related assignment of the Mortgage, and such other documents and
agreements as are required by Section 2.1, with the Mortgage Note endorsed as
required by Section 2.1. No substitution may be made in any calendar month after
the Determination Date for such month. Monthly payments due with respect to
Qualifying Substitute Mortgage Loans in the month of substitution shall not be
part of the Trust and will be retained by Master Servicer and remitted by the
Master Servicer to the related Seller on the next succeeding Distribution Date.
For the month of substitution, distributions to Certificateholders will include
the Scheduled Payment due on the related Deleted Mortgage Loan for such month
and thereafter the related Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan and
the substitution of the Qualifying Substitute Mortgage Loan or Loans and upon
such amendment the Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee and the Special Servicer. Upon
such substitution, the Qualifying Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement in all respects. Upon receipt of the
Trustee Mortgage File pertaining to any Qualifying Substitute Mortgage Loans,
the Trustee shall release the Trustee Mortgage File relating to such Deleted
Mortgage Loan to the related Seller, and the Trustee (and the Depositor, if
necessary) shall execute and deliver such instruments of transfer or assignment
in the form presented to it, in each case without recourse, representation or
warranty, as shall be necessary to vest title (to the extent that such title was
transferred to the Trustee or the Depositor) in the related Seller or its
designee to any Deleted Mortgage Loan substituted for pursuant to this Section
2.3.
In any month in which the related Seller substitutes one or
more Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage
Loans, the Master Servicer will determine the amount (if any) by which the
aggregate principal balance of all such Qualified Substitute Mortgage Loans as
of the date of substitution is less than the aggregate principal balance of all
such Deleted Mortgage Loans (in each case after application of scheduled
principal portion of the monthly payments received in the month of
substitution). The Depositor shall cause the related Seller to deposit the
amount of such shortage into the Certificate Account in the month of
substitution, without any reimbursement thereof. In addition, the Depositor
shall cause the related Seller to deposit into the Certificate Account, together
with such shortage, if any, an amount equal to interest on the Deleted Mortgage
Loans at a rate equal to the sum of the applicable Mortgage Rate from the Due
Date as to which interest was last paid up to the Due Date next succeeding such
substitution together with the amount of any expenses related to such Deleted
Mortgage Loan or REO Property (including any Servicing Advances, Advance
Interest related to such Deleted Mortgage Loan and any Special Servicer Fees and
Liquidation Fees) that are reimbursable to the Master Servicer, the Special
Servicer or the Trustee. The Depositor shall cause the related Seller, in the
case of the Mortgage Loans, to give notice in writing (accompanied by an
Officer's Certificate as to the calculation of such shortage) to the Trustee and
the Master Servicer of such event which notice shall be accompanied by an
Officers' Certificate as to the calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the Purchase Price are to be wired. Any such purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
Notwithstanding the foregoing, the delivery of a commitment to issue a Title
Insurance Policy in lieu of the delivery of the actual Title Insurance Policy
shall not be considered a Document Defect with respect to any Mortgage File if
such actual Title Insurance Policy is delivered to the Trustee or a Custodian on
its behalf not later than the 180th day following the Closing Date.
(b) In connection with any repurchase of or substitution
for a Mortgage Loan contemplated by this Section 2.3, the Trustee, the Master
Servicer and the Special Servicer shall each tender to the related Seller, upon
delivery to each of them of a receipt executed by such Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan possessed
by it, and each document that constitutes a part of the Mortgage File shall be
endorsed or assigned to the extent necessary or appropriate to the related
Seller or its designee in the same manner, and pursuant to appropriate forms of
assignment, substantially similar to the manner and forms pursuant to which
documents were previously assigned to the Trustee, but in any event, without
recourse, representation or warranty; provided that such tender by the Trustee
shall be conditioned upon its receipt from the Master Servicer of a Request for
Release. The Master Servicer shall, and is hereby authorized and empowered by
the Trustee to, prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so.
The Master Servicer shall indemnify the Trustee for all costs, liabilities and
expenses (including attorneys' fees) incurred by the Trustee in connection with
any negligent or intentional misuse of any such powers of attorney by the Master
Servicer.
(c) The Mortgage Loan Purchase Agreements provide the
sole remedies available to the Certificateholders, or the Trustee on behalf of
the Certificateholders, respecting any Document Defect or Breach. The parties
hereunder understand that (i) General American, as Seller under the Mortgage
Loan Purchase Agreement I, will be providing the remedies with respect to
General American Loans, and (ii) Retirement System will be providing the
remedies with respect to the Retirement System Loans under the Mortgage Loan
Purchase Agreement II.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor
hereby represents and warrants to the Master Servicer, the Special Servicer and
the Trustee (in its capacity as Trustee of the Trust) as of the Closing Date
that:
(a) The Depositor is a corporation duly organized,
validly existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its property, to
carry on its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action on the
part of the Depositor; neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance with
the provisions hereof, will conflict with or result in a breach of, or
constitute a default under, (i) any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the
Depositor of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered
by the Depositor and, assuming due authorization, execution and delivery by the
Master Servicer, the Special Servicer and the Trustee, constitutes a valid and
binding obligation of the Depositor enforceable against it in accordance with
its terms;
(e) There are no actions, suits or proceedings pending
or, to the best of the Depositor's knowledge, threatened or likely to be
asserted against or affecting the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (A) with respect to any
of the transactions contemplated by this Agreement or (B) with respect to any
other matter which in the judgment of the Depositor will be determined adversely
to the Depositor and will, if determined adversely to the Depositor, materially
and adversely affect it or its business, assets, operations or condition,
financial or otherwise, or adversely affect its ability to perform its
obligations under this Agreement; and
(f) Immediately prior to the consummation of the
transactions contemplated in this Agreement, the Depositor had good title to and
was the sole owner of each Mortgage Loan free and clear of any and all adverse
claims, charges or security interests (including liens arising under the federal
tax laws or ERISA.
SECTION 2.5 CONVEYANCE OF INTERESTS. Concurrently with the
execution and delivery of this Agreement, the Depositor does hereby transfer,
assign, set over, deposit with and otherwise convey to the Trustee, without
recourse, in trust, all the right, title and interest of the Depositor in and to
(i) the REMIC I Regular Interests in exchange for the REMIC II Interests and
(ii) the REMIC II Regular Interests in exchange for the REMIC III Certificates.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms
set forth in Exhibits A-1 through A-21 hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable judgment of the Trustee or the
Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be determined
by the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Certificates will be issuable in
denominations of $25,000 initial Certificate Balance and in any whole dollar
denomination in excess thereof. The Class X, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class
O Certificates will be issuable in denominations of $100,000 initial Certificate
Balance or initial Notional Amount (as applicable) or in any whole dollar
denomination in excess thereof. The Class R-I, Class R-II and Class R-III
Certificates will be issued in minimum Percentage Interests of 10% and integral
multiples of 10% in excess thereof.
(c) Each Certificate shall, on original issue, be
authenticated by the Authenticating Agent upon the order of the Depositor. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by an
Authorized Officer of the Authenticating Agent by manual signature, and such
certification upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication. At
any time and from time to time after the execution and delivery of this
Agreement, the Depositor may deliver Certificates to the Authenticating Agent
for authentication and the Authenticating Agent shall authenticate and deliver
such Certificates as in this Agreement provided and not otherwise. In the event
that additional Certificates need to be prepared at any time subsequent to the
Closing Date, the Depositor shall prepare, or cause to be prepared, deliver, or
cause to be delivered, at the Depositor's expense, any such additional
Certificates. With respect to the Class A, Class X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N
and Class O Certificates, on the Closing Date, the Authenticating Agent upon the
order of the Depositor shall authenticate Book-Entry Certificates that are
issued to a Clearing Agency or its nominee as provided in Section 3.7 against
payment of the purchase price thereof.
SECTION 3.2 REGISTRATION. The Trustee shall be the initial
Certificate Registrar in respect of the Certificates and the Certificate
Registrar shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Certificate Registrar may resign
or be discharged or removed by the Trustee or the Certificateholders, and a new
successor may be appointed, in accordance with the procedures and requirements
set forth in Sections 7.6 and 7.7 hereof with respect to the resignation,
discharge or removal of the Trustee and the appointment of a successor Trustee.
The Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Trustee, any trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder
thereof only upon presentation and surrender of such Certificate at the offices
of the Certificate Registrar (which shall be located, as of the Closing Date, at
450 West 33rd Street, 14th Floor, New York, New York 10001; Capital Markets
Fiduciary Services (CMBS), duly endorsed or accompanied by a written instrument
of transfer duly executed by such Holder or such Holder's duly authorized
attorney in such form as shall be satisfactory to the Certificate Registrar.
Upon the transfer of any Certificate in accordance with the preceding sentence,
and subject to the restrictions set forth in the other subsections of this
Section 3.3, the Certificate Registrar shall execute, and the Authenticating
Agent shall authenticate and deliver to the transferee, one or more new
Certificates of the same Class and evidencing, in the aggregate, the same
aggregate initial Certificate Balance, initial Notional Amount or Percentage
Interest, as the case may be, as the Certificate being transferred. No service
charge shall be made to a Certificateholder for any registration of transfer of
Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration or transfer of Certificates. The Certificate
Registrar may decline to accept any request for a registration of transfer of
any Certificate during the period beginning five calendar days prior to any
Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof
for any number of new Certificates of the same Class, in authorized
denominations, representing in the aggregate the same initial Certificate
Balance, initial Notional Amount or Percentage Interest, as the case may be, as
the Certificate surrendered, upon surrender of the Certificate to be exchanged
at the offices of the Certificate Registrar duly endorsed or accompanied by a
written instrument of exchange duly executed by such Holder or such Holder's
duly authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
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 held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or one of its Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit D-1 hereto
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as Exhibit
D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer shall be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding such transfer from the Certificateholder desiring to effect
such transfer and/or such Certificateholder's prospective Transferee on which
such Opinion of Counsel is based (such Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such). If a transfer of any interest in a Non-Registered
Certificate that constitutes a Book-Entry Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a transfer of any interest in such
Non-Registered Certificate by the Depositor or any of its Affiliates), then the
Certificate Owner desiring to effect such transfer shall be required to obtain
either (i) a certificate from such Certificate Owner's prospective Transferee
substantially in the form attached as Exhibit D-3A hereto or as Exhibit D-3B
hereto, or (ii) an Opinion of Counsel (such Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such) to the effect that such transfer may be made without
registration under the Securities Act. None of the Depositor, the Trustee, the
Master Servicer 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 qualification. Any Certificateholder or
Certificate Owner desiring to effect a transfer of Non-Registered Certificates
or interests therein shall, and does hereby agree to, indemnify the Depositor,
each Underwriter, the Trustee, the Master Servicer, the Special Servicer and the
Certificate Registrar against any liability that may result if the transfer is
not exempt from such registration or qualification or is not made in accordance
with such federal and state laws.
(d) No transfer of a Subordinate or Residual Certificate
or any interest therein shall be made (A) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Keogh plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including, without limitation,
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 such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: (i) in the case of a
Subordinate Certificate that constitutes a Book-Entry Certificate, the purchase
and holding of such Certificate or interest therein qualifies for the exemptive
relief available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a Subordinate
or Residual Certificate held as a Definitive Certificate, the prospective
Transferee provides the Certificate Registrar and the Trustee with a
certification of facts and a Benefit Plan Opinion which establish to the
satisfaction of the Certificate Registrar and the Trustee that such transfer
will not constitute or result in a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code or subject the Depositor, the
Trustee, the Master Servicer, the Special Servicer or the Certificate Registrar
to any obligation in addition to those undertaken in this Agreement. Each Person
who acquires any Subordinate or Residual Certificate or interest therein (unless
it shall have acquired such Certificate or interest therein from the Depositor
or an Affiliate thereof or unless it shall have delivered to the Certificate
Registrar the certification of facts and Opinion of Counsel referred to in
clause (ii) of the preceding sentence) shall be required to deliver to the
Certificate Registrar (or, in the case of an interest in a Subordinate
Certificate that constitutes a Book-Entry Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that: (i) it
is neither a Plan nor any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with "plan assets" of a Plan; or (ii) that the purchase and holding of
such Certificate or interest therein by such person qualifies for the exemptive
relief available under Sections I and III of PTCE 95-60.
(e) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(F) below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Certificate Registrar under clause (G) below to
negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
The rights of such person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and a U.S. Person and shall promptly notify the
Certificate Registrar 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 Certificate, the Certificate
Registrar shall require delivery to it, and no Transfer of any
Residual Certificate shall be registered until the Certificate
Registrar receives, an affidavit and agreement substantially
in the form attached hereto as Exhibit E-1 (a "Transfer
Affidavit and Agreement") from the proposed Transferee, in
form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring
its Ownership Interest in the Residual Certificate that is the
subject of the proposed Transfer as a nominee, trustee or
agent for any Person that is not a Permitted Transferee, that
for so long as it retains its Ownership Interest in a Residual
Certificate, it will endeavor to remain a Permitted
Transferee, that it is a U.S. Person, and that it has reviewed
the provisions of this Section 3.3(e) 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 the Certificate Registrar has actual knowledge
that the proposed Transferee is not a Permitted Transferee or
is not a U.S. Person, no Transfer of an Ownership Interest in
a Residual Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate shall agree (1) to require
a Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts to transfer its
Ownership Interest in such Residual Certificate and (2) not to
transfer its Ownership Interest in such Residual Certificate
unless it provides to the Certificate Registrar a certificate
substantially in the form attached hereto as Exhibit E-2
stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted Transferee
or is not a U.S. Person.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate that is a "pass-through
interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) or is holding an
Ownership Interest in a Residual Certificate on behalf of a
"pass-through interest holder", by purchasing an Ownership
Interest in such Certificate, agrees to give the Certificate
Registrar written notice of its status as such immediately
upon holding acquiring such Ownership Interest in a Residual
Certificate.
(F) If any purported Transferee shall become a Holder
of a Residual Certificate in violation of the provisions of
this Section 3.3(e) or if any Holder of a Residual Certificate
shall lose its status as a Permitted Transferee or a U.S.
Person, then the last preceding Holder of such Residual
Certificate that was in compliance with the provisions of this
Section 3.3(e) shall be restored, to the extent permitted by
law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of
such Residual Certificate. None of the Trustee, the Master
Servicer, the Special Servicer or the Certificate Registrar
shall be under any liability to any Person for any
registration of Transfer of a Residual Certificate that is in
fact not permitted by this Section 3.3(e) or for making any
payments due on such Certificate to the Holder thereof or for
taking any other action with respect to such Holder under the
provisions of this Agreement.
(G) If any purported Transferee shall become a Holder
of a Residual Certificate in violation of the restrictions in
this Section 3.3(e), or if any Holder of a Residual
Certificate shall lose its status as a Permitted Transferee or
a U.S. Person, and to the extent that the retroactive
restoration of the rights and obligations of the prior Holder
of such Residual Certificate as described in clause (F) above
shall be invalid, illegal or unenforceable, then the
Certificate Registrar shall have the right, without notice to
the Holder or any prior Holder of such Residual Certificate,
but not the obligation, to sell such Residual Certificate to a
purchaser selected by the Trustee on such terms as the Trustee
may choose. Such noncomplying Holder shall promptly endorse
and deliver such Residual Certificate in accordance with the
instructions of the Certificate Registrar. Such purchaser may
be the Certificate Registrar itself or any Affiliate of the
Certificate Registrar. The proceeds of such sale, net of the
commissions (which may include commissions payable to the
Certificate Registrar or its Affiliates), expenses and taxes
due, if any, will be remitted by the Certificate Registrar to
such noncomplying Holder. The terms and conditions of any sale
under this clause (G) shall be determined in the sole
discretion of the Certificate Registrar, and the Certificate
Registrar shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of
its exercise of such discretion.
The Master Servicer, on behalf of the Trustee, shall make available, upon
written request from the Trustee, to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership Interest in a
Residual Certificate to any Person who is not a Permitted Transferee, including
the information described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is not a Permitted Transferee. The Person holding such Ownership Interest
shall be responsible for the reasonable compensation, and for the reimbursement
of reasonable expenses, of the Master Servicer and the Trustee for providing
such information.
The provisions of this Section 3.3(e) set forth above may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee, the Certificate Registrar, the Master Servicer and the Depositor
the following:
(i) written notification from each Rating Agency to
the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating
Agency to qualify, downgrade or withdraw its then current
rating of any Class of Certificates; and
(ii) an Opinion of Counsel (delivered by, and at the
expense, of the party requesting such modification, addition
or elimination of such provisions), in form and substance
satisfactory to the Trustee, the Certificate Registrar and the
Depositor, to the effect that such modification of, addition
to or elimination of such provisions will not cause any of
REMIC I, REMIC II or REMIC III to (x) cease to qualify as a
REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Residual Certificate to a Person which is not
a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a tax caused by the
Transfer of a Residual Certificate to a Person which is not a
Permitted Transferee.
(f) None of the Master Servicer, the Trustee or the
Certificate Registrar shall have any liability to the Trust arising from a
transfer of any Certificate in reliance upon a certification, ruling or Opinion
of Counsel described in this Section 3.3; provided, however, that the
Certificate Registrar shall not register the transfer of a Residual Certificate
if it has actual knowledge that the proposed transferee does not meet the
qualifications of a permitted Holder of a Residual Certificate as set forth in
Section 3.3(e). The Certificate Registrar shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restriction on transfer
or exchange of Certificates or any interest therein imposed under this Article
III or under applicable law other than to require delivery of the certifications
and/or opinions described in this Article III; provided, however, that the
Certificate Registrar shall not register the transfer of a Residual Certificate
if it has actual knowledge that the proposed transferee does not meet the
qualifications of a permitted Holder of a Residual Certificate as set forth in
Section 3.3(e). The Certificate Registrar shall have no liability for transfers
(including without limitation transfers made through the book-entry facilities
of the Depository or between or among Participants or Certificate Owners) made
in violation of applicable restrictions, provided that the Certificate Registrar
has satisfied its duties expressly set forth in Sections 3.3(c), 3.3(d) and
3.3(e).
(g) All Certificates surrendered for transfer and
exchange shall be physically cancelled by the Certificate Registrar, and the
Certificate Registrar shall hold such cancelled Certificates in accordance with
its standard procedures.
(h) The Certificate Registrar shall provide notice to the
Master Servicer, the Special Servicer and the Depositor of each transfer of a
Certificate on the Certificate Register and, upon written request at the expense
of the requesting Person, provide each such Person with an updated copy of the
Certificate Register within a reasonable period of time following receipt of
such request.
(i) Unless and until it is exchanged in whole for the
individual Certificates represented thereby, a Global Certificate representing
all of the Certificates of a Class may not be transferred, except as a whole by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (A) 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 (B) except in the case of a
mutilated Certificate so surrendered, there is delivered to the Certificate
Registrar such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and interest in the Trust.
In connection with the issuance of any new Certificate under this Section 3.4,
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Master Servicer, the Special
Servicer, the Trustee, the Operating Adviser and any agent of the Master
Servicer, the Special Servicer, the Trustee or the Operating Adviser may treat
the Person in whose name any Certificate is registered as of the related Record
Date as the owner of such Certificate for the purpose of receiving distributions
as provided in this Agreement and for all other purposes whatsoever, and neither
the Master Servicer, the Special Servicer, the Trustee, the Operating Adviser
nor any agent of the Master Servicer, the Special Servicer, the Trustee or the
Operating Adviser shall be affected by any notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, the Master Servicer, the Special
Servicer, the Operating Adviser or the Depositor (A) request in writing from the
Certificate Registrar a list of the names and addresses of Certificateholders
and (B) in the case of a request by Certificateholders, state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, then the
Certificate Registrar shall, within ten Business Days after the receipt of such
request, afford such Certificateholders, the Master Servicer, the Special
Servicer, the Depositor or the Operating Adviser, as applicable, access during
normal business hours to a current list of the Certificateholders. The expense
of providing any such information requested by such Person shall be borne by the
party requesting such information and shall not be borne by the Certificate
Registrar or the Trustee. Every Certificateholder, by receiving and holding a
Certificate, agrees that the Certificate Registrar and the Trustee shall not be
held accountable by reason of the disclosure of any such information as to the
list of the Certificateholders hereunder, regardless of the source from which
such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) Notwithstanding the foregoing, the Class A-1, Class
A-2, Class A-3, Class A-4, Class X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificates, upon original issuance, each shall be issued in the form of one or
more Certificates representing the Book-Entry Certificates, to be delivered to
the Certificate Registrar, as custodian for The Depository Trust Company (the
"Depository"), the initial Clearing Agency, by, or on behalf of, the Depositor.
The Certificates shall initially be registered on the Certificate Register in
the name of Cede & Co., the nominee of the Depository, as the initial Clearing
Agency, and no Certificate Owner will receive a definitive certificate
representing such Certificate Owner's interest in the Certificates, except as
provided in Section 3.9. Unless and until Definitive Certificates have been
issued to the Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full
force and effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Certificate
Registrar and the Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Certificates) as the authorized
representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7
conflict with any other provisions of this Agreement, the provisions of this
Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such
Class shall be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency and/or the Participants.
Pursuant to the Depository Agreement, unless and until Certificates are issued
pursuant to Section 3.9, the initial Clearing Agency will make book-entry
transfers among the Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement
requiring or permitting actions with the consent of, or at the direction of,
Holders of the Certificates evidencing a specified percentage of the aggregate
unpaid principal amount of Certificates, such direction or consent may be given
by the Clearing Agency at the direction of Certificate Owners owning
Certificates evidencing the requisite percentage of principal amount of
Certificates. The Clearing Agency may take conflicting actions with respect to
the Certificates to the extent that such actions are taken on behalf of the
Certificate Owners.
(c) The Certificates of each Class (other than the
Residual Certificates) initially sold in reliance on Rule 144A or to
Institutional Accredited Investors shall be represented by the Rule 144A-IAI
Global Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. The Certificates evidenced by any Rule
144A-IAI Global Certificate shall be subject to certain restrictions on transfer
as set forth in Section 3.3 hereof and shall bear legend(s) regarding such
restrictions described herein.
(d) The Certificates of each Class (other than the
Residual Certificates) initially sold in offshore transactions in reliance on
Regulation S shall be represented by the Regulation S Temporary Global
Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. Not earlier than the Release Date, beneficial
interests in any Regulation S Temporary Global Certificate shall be exchangeable
for beneficial interests in the Regulation S Permanent Global Certificate for
such Class. Beneficial interests in any Regulation S Temporary Global
Certificate may be held only through Euroclear or CEDEL; provided, however, that
such interests may be exchanged for interests in the Rule 144A-IAI Global
Certificate for such Class in accordance with the certification requirements
described in Section 3.7(f). The Regulation S Permanent Global Certificates
shall be deposited with the Certificate Registrar, as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository.
On or prior to the Release Date and on or prior to any
Distribution Date occurring prior to the Release Date, each Certificate Owner of
a Regulation S Temporary Global Certificate that holds a beneficial interest
therein on the Release Date or on any such Distribution Date, as the case may
be, must deliver to Euroclear or CEDEL (as applicable) a Regulation S
Certificate; provided, however, that any Certificate Owner that holds a
beneficial interest in a Regulation S Temporary Global Certificate on the
Release Date or on any such Distribution Date that has previously delivered a
Regulation S Certificate to Euroclear or CEDEL with respect to its interest
therein does not need to deliver any subsequent Regulation S Certificate (unless
the certificate previously delivered is no longer true as of such subsequent
date, and such Certificate Owner must promptly notify Euroclear or CEDEL, as
applicable, thereof). Euroclear or CEDEL, as applicable, shall be required to
promptly deliver to the Certificate Registrar a certificate substantially in the
form of Exhibit I hereto to the effect that it has received the requisite
Regulation S Certificates for each such Class, and no Certificate Owner (or
transferee from any such Certificate Owner) shall be entitled to receive an
interest in the Regulation S Permanent Global Certificate for such Class or any
payment or principal or interest with respect to its interest in such Regulation
S Temporary Global Certificate prior to the Certificate Registrar receiving such
certification from Euroclear or CEDEL with respect to the portion of the
Regulation S Temporary Global Certificate owned by such Certificate Owner (and,
with respect to an interest in the applicable Regulation S Permanent Global
Certificate, prior to the Release Date). After the Release Date, distributions
due with respect to any beneficial interest in a Regulation S Temporary Global
Certificate shall not be made to the holders of such beneficial interests unless
exchange for a beneficial interest in the related Regulation S Permanent Global
Certificate is improperly withheld or refused. No interest in a Regulation S
Global Certificate may be held by or transferred to a U.S. Person (as defined in
Regulation S) except for exchanges for a beneficial interest in the Rule
144A-IAI Global Certificate for such Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below
in Section 3.9, owners of beneficial interests in Book-Entry Certificates shall
not be entitled to receive physical delivery of Definitive Certificates. The
Certificates are not issuable in bearer form. Upon the issuance of each
Book-Entry Certificate, the Depository or its custodian shall credit, on its
internal system, the respective principal amount of the individual beneficial
interests represented by such Book-Entry Certificate to the accounts of Persons
who have accounts with such Depository. Such accounts initially shall be
designated by or on behalf of the Placement Agents. Ownership of beneficial
interests in a Book-Entry Certificate shall be limited to Customers or Persons
who hold interests directly or indirectly through Customers. Ownership of
beneficial interests in the Book-Entry Certificates shall be shown on, and the
transfer of that ownership shall be effected only through, records maintained by
the Depository or its nominee (with respect to interests of Customers) and the
records of Customers (with respect to interests of Persons other than
Customers).
So long as the Depository, or its nominee, is the registered
holder of a Global Certificate, the Depository or such nominee, as the case may
be, shall be considered the sole owner and holder of the Certificates
represented by such Global Certificate for all purposes under this Agreement and
the Certificates, including, without limitation, obtaining consents and waivers
thereunder, and the Trustee and the Certificate Registrar, as applicable, shall
not be affected by any notice to the contrary. Except under the circumstance
described in Section 3.9, owners of beneficial interests in a Global Certificate
will not be entitled to have any portions of such Global Certificate registered
in their names, will not receive or be entitled to receive physical delivery of
Definitive Certificates in certificated form and shall not be considered the
owners or holders of the Global Certificate (or any Certificates represented
thereby) under this Agreement or the Certificates. In addition, no Certificate
Owner of an interest in a Global Certificate shall be able to transfer that
interest except in accordance with the Depository's applicable procedures (in
addition to those under this Agreement and, if applicable, those of Euroclear
and CEDEL).
(f) Any holder of an interest in a Regulation S Global
Certificate shall have the right, upon prior written notice to the Certificate
Registrar, Euroclear or CEDEL, as applicable, and the Depository, in the form of
an Exchange Certification (substantially in the form of Exhibit H attached
hereto), to exchange all or a portion of such interest (in authorized
denominations as set forth in Section 3.1(b)) for an equivalent interest in the
Rule 144A-IAI Global Certificate for such Class in connection with a transfer of
its interest therein to a transferee that is eligible to hold an interest in
such Rule 144A-IAI Global Certificate as described herein; provided, however,
that no Exchange Certification shall be required if any such exchange occurs
after the Release Date. Any holder of an interest in the Rule 144A-IAI Global
Certificate shall have the right, upon prior written notice to the Certificate
Registrar, the Depository and Euroclear or CEDEL, as applicable, in the form of
an Exchange Certification, to exchange all or a portion of such interest (in
authorized denominations as set forth in Section 3.1(b)) for an equivalent
interest in the Regulation S Global Certificate for such Class in connection
with a transfer of its interest therein to a transferee that is eligible to hold
an interest in such Regulation S Global Certificate as described herein;
provided, however, that if such exchange occurs prior to the Release Date, the
transferee shall acquire an interest in a Regulation S Temporary Global
Certificate only and shall be subject to all of the restrictions associated
therewith described in Section 3.7(d). Following receipt of any Exchange
Certification or request for transfer, as applicable, by the Certificate
Registrar: (i) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates being exchanged
to reduce the stated principal amount of such Global Certificate by the
denominations of the Certificate or Certificates for which such exchange is to
be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or
other communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the Trustee shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners
of beneficial interests in a Global Certificate or their nominees if (i) the
Depository notifies the Depositor and the Certificate Registrar in writing that
the Depository is unwilling or unable to continue as depositary for such Global
Certificate and a qualifying successor depositary is not appointed by the
Depositor within 90 days thereof, (ii) the Trustee has instituted or caused to
be instituted or has been directed to institute any judicial proceeding in a
court to enforce the rights of the Certificateholders under this Agreement and
under such Global Certificate and the Trustee has been advised by counsel that
in connection with such proceeding it is necessary or advisable for the Trustee
or its custodian to obtain possession of such Global Certificate, or (iii) after
the occurrence of an Event of Default, Certificate Owners representing a
majority in aggregate outstanding Certificate Balance of such Global Certificate
advise the Depository through the Participants in writing (and the Depository so
advises the Depositor, the Certificate Registrar and the Master Servicer in
writing) that the continuation in global form of the Certificates being
evidenced by such Global Certificate is no longer in their best interests;
provided, that under no circumstances will Definitive Certificates be issued to
Certificate Owners of the Regulation S Temporary Global Certificate. Upon notice
of the occurrence of any of the events described in the preceding sentence, the
Certificate Registrar shall notify the Depository and request the Depository to
notify all Certificate Owners, through the applicable Participants, of the
occurrence of the event and of the availability of Definitive Certificates to
such Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of the Global Certificates by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency for registration, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver, the Definitive Certificates. None of the Depositor,
the Trustee or the Certificate Registrar shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable with respect to
such Definitive Certificates, and the Certificate Registrar and the Trustee
shall recognize the Holders of Definitive Certificates as Certificateholders
hereunder.
(b) Distributions of principal and interest on the
Definitive Certificates shall be made by the Trustee directly to holders of
Definitive Certificates in accordance with the procedures set forth in this
Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made by the
Master Servicer and, if the Master Servicer does not make such Advances, by the
Trustee ( except that its obligation to make Advances shall be subject to the
same limitations, and it shall have the same rights, as described herein for the
Master Servicer), except to the extent that the Master Servicer or the Trustee,
as applicable, determines in accordance with Section 4.4 below, that any such
Advance would be a Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER.
(a) At or prior to the Advance Report Date, the Master
Servicer shall notify the Trustee if the P&I Advance Amount for the related
Distribution Date is greater than zero, and the Master Servicer shall make a P&I
Advance of such amount no later than 4:00 p.m. New York City time on the Master
Servicer Remittance Date. It is understood that the obligation of the Master
Servicer to make such P&I Advances is mandatory and shall apply through any
court appointed stay period or similar payment delay resulting from any
insolvency of the Mortgagor or related bankruptcy, notwithstanding any other
provision of this Agreement. Notwithstanding the foregoing, the Master Servicer
shall not be required to make such P&I Advance, if the Master Servicer
determines, in accordance with Section 4.4 below, that any such P&I Advance
would be a Nonrecoverable Advance. Such determination shall be conclusive and
binding on the Trustee and the Certificateholders. The Special Servicer shall
not be required to make P&I Advances under this Agreement.
(b) If the Master Servicer determines that there is a P&I
Advance Amount for a Distribution Date, the Master Servicer shall on the Master
Servicer Remittance Date either (A) deposit in the Certificate Account an amount
equal to the P&I Advance Amount or (B) utilize funds in the Certificate Account
being held for future distributions or withdrawals to make such Advance. If a
Scheduled Payment due during the related Collection Period is received after the
Determination Date and on or before the Master Servicer Remittance Date, the
Master Servicer shall include such Scheduled Payment in the amounts deposited
into the Distribution Account pursuant to Section 5.2(a)(xi) and shall not make
any P&I Advance with respect to such Scheduled Payment. Any funds being held in
the Certificate Account for future distribution or withdrawal and so used shall
be replaced by the Master Servicer from its own funds by deposit in the
Certificate Account on or before 4:00 p.m. New York City time on any future
Master Servicer Remittance Date to the extent that funds in the Certificate
Account on such Master Servicer Remittance Date shall be less than payments to
the Trustee or other Persons required to be made on such date.
SECTION 4.2 SERVICING ADVANCES. The Master Servicer and, if
the Master Servicer does not, the Trustee shall make Servicing Advances to the
extent provided in this Agreement, except to the extent that the Master Servicer
or the Trustee, as applicable, determines in accordance with Section 4.4 below,
that any such Advance would be a Nonrecoverable Advance. Such determination
shall be conclusive and binding on the Trustee and the Certificateholders. The
Special Servicer shall not be required to make Servicing Advances under this
Agreement.
SECTION 4.3 ADVANCES BY THE TRUSTEE.
(a) To the extent that the Master Servicer fails to make
a P&I Advance by 4:00 p.m. New York City time on the Master Servicer Remittance
Date (other than a P&I Advance that the Master Servicer determines is a
Nonrecoverable Advance), the Trustee shall make such P&I Advance on the related
Distribution Date unless the Trustee determines that such P&I Advance, if made,
would be a Nonrecoverable Advance. To the extent that the Trustee is required
hereunder to make P&I Advances, it shall deposit the amount thereof in the
Distribution Account by 1:00 p.m. (New York City time) on such Distribution
Date.
(b) To the extent that the Master Servicer fails to make
a Servicing Advance by the date such Servicing Advance is required to be made
(other than a Servicing Advance that the Master Servicer determines is a
Nonrecoverable Advance), and a Responsible Officer of the Trustee receives
notice thereof, the Trustee shall make such Servicing Advance promptly, but in
any event, not later than five Business Days after notice thereof, unless the
Trustee determines that such Servicing Advance, if made, would be a
Nonrecoverable Advance.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY. If the Master
Servicer determines at any time, in its sole discretion, exercised in good faith
in accordance with the Servicing Standard, that any Advance previously made or
proposed Advance, if made, would constitute a Nonrecoverable Advance, such
determination shall be evidenced by an Officer's Certificate delivered to the
Trustee and the Special Servicer by the Business Day prior to the Distribution
Date. Such Officer's Certificates shall set forth the reasons for such
determination of nonrecoverability, together with, to the extent such
information, report or document is in the Master Servicer's possession, any
related financial information such as related income and expense statements,
rent rolls, occupancy status, property inspections and any appraisals performed
in accordance with MAI standards within the last 12 months on the Mortgaged
Property, and, if such reports are used by the Master Servicer to determine that
any P&I Advance or Servicing Advance, as applicable, would be a Nonrecoverable
Advance, any engineers' reports, environmental surveys, internal final
valuations or other information relevant thereto which support such
determination. If the Trustee determines at any time that any portion of an
Advance previously made or a portion of a proposed Advance that the Trustee is
required to make pursuant to this Agreement, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate of a Responsible Officer of the Trustee delivered to the Depositor,
the Master Servicer and the Special Servicer similar to the Officer's
Certificate of the Master Servicer described in the prior sentence. The Trustee
shall be entitled to rely conclusively on any determination by the Master
Servicer that any Advances previously made or any proposed Advance, if made,
would constitute a Nonrecoverable Advance, and, in particular shall not be
required to make an Advance that the Master Servicer has previously determined
to be a Nonrecoverable Advance. Notwithstanding any other provision of this
Agreement, none of the Master Servicer or the Trustee shall be obligated to, nor
shall it, make any Advance or make any payment that is designated in this
Agreement to be an Advance, if it determines in its good faith judgment that
such Advance or such payment (including interest accrued thereon at the Advance
Rate) would be a Nonrecoverable Advance. The Master Servicer's determination in
accordance with the above provisions shall be conclusive and binding on the
Trustee and the Certificateholders. The Trustee's determination in accordance
with the above provisions shall be conclusive and binding on the
Certificateholders.
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING
ADVANCES WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from
the Master Servicer's or the Trustee's own funds shall accrue interest on a
daily basis, at a per annum rate equal to the Advance Rate, from the date such
Advance was made until the date on which such Advance has been reimbursed. For
purposes of determining whether a P&I Advance is outstanding, amounts collected
with respect to a particular Mortgage Loan or REO Property and treated as
collections of principal or interest shall be applied first to reimburse the
earliest P&I Advance made with respect to such Mortgage Loan and then each
succeeding P&I Advance made with respect to such Mortgage Loan to the extent not
inconsistent with Section 4.6. Except with respect to Specially Serviced
Mortgage Loans, the Master Servicer shall use reasonable efforts to collect (but
shall have no obligation to collect) Late Fees in an amount sufficient to pay
Advance Interest from the related Mortgagor. The Master Servicer shall be
entitled to retain Late Fees and default interest in excess of the Mortgage Rate
of the Mortgage Loan paid by any Mortgagor with respect to any Mortgage Loan
(other than a Specially Serviced Mortgage Loan, as to which the Special Servicer
shall retain Late Fees and default interest in excess of the Mortgage Rate for
such Mortgage Loan), as additional servicing compensation to the extent such
Late Fees and default interest in exces of the Mortgage Rate for such Mortgage
Loan or Specially Serviced Mortgage Loan exceed Advance Interest. The Master
Servicer (with respect to any Mortgage Loan that is not a Specially Serviced
Mortgage Loan), shall pay from any related Late Fees and default interest in
excess of the Mortgage Rate for such Mortgage Loan which it collects,
outstanding and unpaid Advance Interest owed to the Trustee. The Special
Servicer, with respect to any Specially Serviced Mortgage Loan, shall (i) pay
from any related Late Fees and default interest in excess of the Mortgage Rate
for such Mortgage Loan which it collects, outstanding and unpaid Advance
Interest first, owed to the Trustee and then owed to the Master Servicer, and
(ii) retain any remaining portion of such Late Fees and default interest in
excess of the Mortgage Rate for such Mortgage Loan as additional Special
Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan or
Specially Serviced Mortgage Loan or REO Property (including Advances later
determined to be Nonrecoverable Advances) shall be reimbursed to the extent of
the amounts identified to be applied therefor in Section 5.2. The aggregate of
the amounts available to repay Advances pursuant to Sections 5.2 collected in
any Collection Period with respect to Mortgage Loans or Specially Serviced
Mortgage Loans or REO Property shall be an "Available Advance Reimbursement
Amount."
(b) To the extent that Advances have been made on
Mortgage Loans, Specially Serviced Mortgage Loans or REO Property, the Available
Advance Reimbursement Amount with respect to any Determination Date shall be
applied to reimburse (i) the Trustee for any Advances outstanding to the Trustee
with respect to any of such Mortgage Loans or Specially Serviced Mortgage Loans
or REO Property, plus any Advance Interest owed to the Trustee with respect to
such Advances and then (ii) the Master Servicer for any Advances outstanding to
the Master Servicer with respect to any of such Mortgage Loans or Specially
Serviced Mortgage Loans or REO Property, plus any Advance Interest owed to the
Master Servicer with respect to such Advances. To the extent that any Advance
Interest payable to the Master Servicer or the Trustee with respect to a
Specially Serviced Mortgage Loan or REO Property cannot be recovered from the
related Mortgagor, the amount of such Advance Interest shall be treated as a
Servicing Advance and shall be payable to the Trustee or the Master Servicer, as
the case may be, from amounts on deposit in the Certificate Account or the
Distribution Account pursuant to Section 5.2(a) or Section 5.3(b)(ii). The
Master Servicer's and the Trustee's right of reimbursement under this Agreement
for Advances shall be prior to the rights of the Certificateholders to receive
any amounts recovered with respect to such Mortgage Loans or REO Properties, and
the Trustee's right of reimbursement under this Agreement for Advances shall be
prior to the rights of the Master Servicer to be reimbursed for such amounts.
(c) Amounts applied to reimburse Advances shall first be
applied to reduce the Advance Interest thereon and then reduce the outstanding
amount of such Advances.
(d) To the extent that the Special Servicer incurs
out-of-pocket expenses, in accordance with the Servicing Standard, in connection
with servicing Specially Serviced Mortgage Loans, the Master Servicer shall
reimburse the Special Servicer for such expenditures within 30 days after
receiving an invoice and a report from the Special Servicer, subject to Section
4.4. With respect to each Collection Period, the Special Servicer shall deliver
such invoice and report to the Master Servicer by the following Determination
Date. All such amounts reimbursed by the Master Servicer shall be a Servicing
Advance. In the event that the Master Servicer defaults under its obligation to
reimburse the Special Servicer hereunder or the Master Servicer determines that
such Servicing Advance, if made, would be a Nonrecoverable Advance, the Special
Servicer shall notify the Master Servicer in writing of such nonpayment and the
amount payable to the Special Servicer and shall be entitled to receive
reimbursement from the Trust as an Additional Trust Expense. The Master Servicer
and the Trustee shall have no obligation to verify the amount payable to the
Special Servicer pursuant to this Section 4.6(d) and circumstances surrounding
the notice delivered by the Special Servicer pursuant to this Section 4.6(d).
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, the Master Servicer
shall open, or cause to be opened, and shall thereafter maintain, or cause to be
maintained, a separate account or accounts, which accounts must be Eligible
Accounts, in the name of "Conning Asset Management Company, as Master Servicer
for The Chase Manhattan Bank, as Trustee for the Holders of Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1"
(the "Certificate Account"). On or prior to the Closing Date, the Trustee shall
open, or cause to be opened, and shall maintain, or cause to be maintained an
additional separate account or accounts in the name of "The Chase Manhattan
Bank, as Trustee for the Holders of Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-CAM1" (the "Interest Reserve
Account").
(b) On or prior to the date the Master Servicer shall
first deposit funds in a Certificate Account, the Master Servicer shall give to
the Trustee prior written notice of the name and address of the depository
institution at which the Certificate Account is maintained and the account
number of such account. The Master Servicer shall take such actions as are
necessary to cause the depository institution holding the Certificate Account to
hold such account in the name of the Master Servicer as provided in Section
5.1(a), subject to the Master Servicer's (or its Sub-Servicer's) right to direct
payments and investments and its rights of withdrawal under this Agreement. The
Trustee shall take such actions as are necessary to cause the depository
institution holding the Interest Reserve Account to hold such account in the
name of the Trustee as provided in Section 5.1(a), subject to the Trustee's
right to direct payments and instruments and its rights of withdrawal under this
Agreement.
(c) The Master Servicer shall deposit, or cause to be
deposited, into the Certificate Account on the Business Day following receipt
(or, in the case of unscheduled remittances of principal or interest, on the
Business Day following identification of the proper application of such
amounts), the following amounts received by it (including amounts remitted to
the Master Servicer by the Special Servicer from an REO Account pursuant to
Section 9.14 or as a Compensating Interest Payment pursuant to Section 9.11),
other than in respect of interest and principal on the Mortgage Loans due on or
before the Cut-Off Date which shall be remitted to the Depositor (provided that
the Master Servicer may retain amounts otherwise payable to the Master Servicer
as provided in Section 5.2(a) rather than deposit them into the Certificate
Account):
(A) Principal: all payments on account of principal,
including Principal Prepayments, the principal component of
Scheduled Payments, and any Late Collections in respect
thereof on the Mortgage Loans;
(B) Interest: all payments on account of interest,
including Compensating Interest Payments paid by the Special
Servicer pursuant to Section 9.11 (minus any portion of any
such payment that is allocable to the period prior to the
Cut-Off Date which shall be remitted to the Depositor);
(C) Liquidation Proceeds: all Liquidation Proceeds
with respect to the Mortgage Loans;
(D) Insurance Proceeds: all insurance proceeds other
than proceeds to be applied to the restoration or repair of
the property subject to the related Mortgage or released to
the related Mortgagor in accordance with the Servicing
Standard, which proceeds shall be deposited by the Master
Servicer into an Escrow Account and not deposited in the
Certificate Account;
(E) Condemnation Proceeds: all condemnation proceeds
other than proceeds to be applied to the restoration or repair
of the property subject to the related Mortgage or released to
the related Mortgagor in accordance with the Servicing
Standard, which proceeds shall be deposited by the Master
Servicer into an Escrow Account and not deposited in the
Certificate Account;
(F) REO Income: all REO Income received from the
Special Servicer;
(G) Investment Losses: any amounts required to be
deposited by the Master Servicer pursuant to Section 5.1(e) in
connection with losses realized on Eligible Investments with
respect to funds held in the Certificate Account;
(H) Advances: all P&I Advances unless made directly
to the Distribution Account; and
(I) Other: all other amounts, including Prepayment
Premiums, required to deposited in the Certificate Account
pursuant to this Agreement, including Purchase Proceeds of any
Mortgage Loans repurchased by a Seller or substitution
shortfall amounts (as described in the fifth paragraph of
Section 2.3(a)) paid by a Seller in connection with the
substitution of any Qualifying Substitute Mortgage Loans.
Remittances from any REO Account to the Master Servicer for
deposit in the Certificate Account shall be made by the Special Servicer no
later than the Special Servicer Remittance Date.
(d) The Trustee, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year,
shall deposit from the Distribution Account into the Interest Reserve Account in
respect of each Interest Reserve Loan, an amount equal to one day's interest at
the related REMIC I Net Mortgage Rate on the Scheduled Principal Balance of such
Mortgage Loan as of the Due Date in the month in which such Distribution Date
occurs, to the extent a Scheduled Payment or P&I Advance is timely made in
respect thereof for such Due Date (all amounts so deposited in any consecutive
January and February in respect of each Interest Reserve Loan, the "Interest
Reserve Amount").
(e) Funds in the Certificate Account and Interest Reserve
Account may be invested and, if invested, shall be invested by, and at the risk
of, the Master Servicer with respect to the Certificate Account and the Trustee
with respect to the Interest Reserve Account in Eligible Investments selected by
the Master Servicer or the Trustee, as applicable, which shall mature, unless
payable on demand, not later than the Business Day immediately preceding the
next Master Servicer Remittance Date, and any such Eligible Investment shall not
be sold or disposed of prior to its maturity unless payable on demand. All such
Eligible Investments shall be made in the name of "The Chase Manhattan Bank, as
Trustee for the Holders of the Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-CAM1." None of the Depositor,
the Mortgagors or the Trustee shall be liable for any loss incurred on such
Eligible Investments in the Certificate Account. None of the Depositor, the
Mortgagor or Master Servicer shall be liable for any loss incurred on such
Eligible Investments in the Interest Reserve Account.
An amount equal to all income and gain realized from any such
investment in the Certificate Account shall be paid to the Master Servicer as
additional servicing compensation and shall be subject to its withdrawal at any
time from time to time. The amount of any net losses incurred in respect of any
such investments in the Certificate Account shall be for the account of the
Master Servicer which shall deposit the amount of such loss (to the extent not
offset by income from other investments) in the Certificate Account out of its
own funds before the related Master Servicer Remittance Date. If the Master
Servicer deposits in any Certificate Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Certificate
Account any provision herein to the contrary notwithstanding.
An amount equal to all income and gain realized from any such
investment in the Interest Reserve Account shall be paid to the Trustee as
additional trustee compensation and shall be subject to its withdrawal at any
time from time to time. The amount of any losses incurred in respect of any such
investments in the Interest Reserve Account shall be for the account of the
Trustee which shall deposit the amount of such loss (to the extent not offset by
income from other investments) in the Interest Reserve Account out of its own
funds before the related Distribution Date. If the Trustee deposits in any
Interest Reserve Account any amount not required to be deposited therein, it may
at any time withdraw such amount from the Interest Reserve Account any provision
herein to the contrary notwithstanding.
(f) Except as expressly provided otherwise in this
Agreement, if any default occurs in the making of a payment due under any
Eligible Investment in the Certificate Account, or if a default occurs in any
other performance required under any Eligible Investment in the Certificate
Account, the Trustee may take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if the Master Servicer shall have deposited
in the Certificate Account an amount equal to all amounts due under any such
Eligible Investment (net of anticipated income or earnings thereon that would
have been payable to the Master Servicer as additional servicing compensation)
the Master Servicer shall have the sole right to enforce such payment or
performance.
(g) Certain of the Mortgage Loans may provide for payment
by the Mortgagor to the Master Servicer of amounts to be used for payment of
Escrow Amounts for the account of the Mortgagor. The Master Servicer shall deal
with these amounts in accordance with the Servicing Standard and the terms of
the related Mortgage Loans.
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT
AND INTEREST RESERVE ACCOUNT.
(a) The Master Servicer shall, from time to time, make
withdrawals from the Certificate Account and remit them by wire transfer on the
related Master Servicer Remittance Date in immediately available funds to the
account specified in this Section or otherwise (w) to such account as it shall
determine from time to time of amounts payable to the Master Servicer from the
Certificate Account pursuant to clauses (i), (ii), (iii), (iv), (vi), (viii) and
(ix) below; (x) to the account specified in writing by the Trustee from time to
time of amounts payable to the Trustee from the Certificate Account pursuant to
clauses (ii), (iii), (vi), (xi) and (xii) below; (y) with respect to clause (v),
to the Distribution Account, the amount payable to the Trustee as described
herein; and (z) to the Special Servicer from time to time of amounts payable to
the Special Servicer from such Certificate Account pursuant to clauses (i),
(iv), (vi), and (vii) below of the following amounts, from the amounts specified
for the following purposes:
(i) Fees: the Master Servicer shall pay (A) to itself Late
Fees (in excess of Advance Interest) and default interest with respect to each
Mortgage Loan payable at a rate above the Mortgage Rate (in excess of Advance
Interest) relating to Mortgage Loans which are not Specially Serviced Mortgage
Loans, Modification Fees, assumption fees and extension fees relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans as provided in
Section 8.18, Section 8.7(a) and Section 8.10, respectively, or other fees
payable to the Master Servicer hereunder and (B) directly to the Special
Servicer, Late Fees (in excess of Advance Interest) and default interest with
respect to each Mortgage Loan payable at a rate above the Mortgage Rate (in
excess of Advance Interest) on Specially Serviced Mortgage Loans and
Modification Fees, assumption fees, extension fees and other fees collected on
Specially Serviced Mortgage Loans, in each case from funds paid by the
applicable Mortgagor to the extent provided for herein;
(ii) Servicing Advances (including amounts later determined
to be Nonrecoverable Advances): to apply, pursuant to Section 4.6, (x) prior to
a Final Recovery Determination or determination in accordance with Section 4.4
that any Advance is a Nonrecoverable Advance, payments made by the related
Mortgagor of the amounts to which a Servicing Advance relates or from REO Income
from the related REO Property or from related Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or Purchase Proceeds or (y) after a Final Recovery
Determination or determination that any Advance is a Nonrecoverable Advance, any
funds on deposit in the Certificate Account (regardless of whether such amount
was recovered from the applicable Mortgage Loan or REO Property), to reimburse
the Trustee and itself, in that order, as provided in, and subject to, Article
IV hereof, for any Servicing Advances (and Advance Interest thereon) made with
respect to a Mortgage Loan or REO Property and not previously reimbursed;
(iii) P&I Advances (including amounts later to be
determined to be Nonrecoverable Advances): to apply pursuant to Section 4.6, (x)
prior to a Final Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, payments made by the related Mortgagor of the amounts to
which a P&I Advance relates, or REO Income from the related REO Property or from
related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or
Purchase Proceeds, in each case, within one Business Day after the date such
amount is received, or (y) after a Final Recovery Determination or determination
in accordance with Section 4.4 that any Advance is a Nonrecoverable Advance, for
any Mortgage Loan, any funds on deposit in the Certificate Account (regardless
of whether such amount was recovered from the applicable Mortgage Loan or REO
Property), to reimburse the Trustee and itself, in that order, in accordance
with Article IV hereof, for any P&I Advances (and Advance Interest thereon)
previously made by it with respect to the related Mortgage Loan or REO Property
and not previously reimbursed;
(iv) Servicing Fee, Excess Servicing Fee and Special
Servicer Compensation: to pay to itself the Servicing Fee (to the extent not
previously retained by the Master Servicer), to pay the Excess Servicing Fee, to
pay to the Special Servicer the Special Servicing Fee and Workout Fee, in each
case, subject to reduction for any Compensating Interest Payment;
(v) Trustee Fee: to deposit into the Distribution Account,
for withdrawal by the Trustee, an amount sufficient to pay the Trustee's Fee;
(vi) Expenses of Trust: to pay to the Person entitled
thereto any amounts specified herein to be Additional Trust Expenses (other than
Liquidation Fees) (at the time set forth herein or in the definition thereof),
the payment of which is not more specifically provided for in this Agreement;
provided that the Depositor shall not be entitled to receive reimbursement for
performing its duties under this Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final
Recovery Determination to pay to the Special Servicer from the Certificate
Account, the amount certified by the Special Servicer equal to the Liquidation
Fee, to the extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain
realized on the investment of funds deposited in the Certificate Account
relating to the Trust;
(ix) Prepayment Interest Excesses: to pay to the Master
Servicer the amount of the aggregate Prepayment Interest Excesses relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans (to the extent
not offset by Prepayment Interest Shortfalls relating to such Mortgage Loans);
and to pay to the Special Servicer the amount of the aggregate Prepayment
Interest Excesses relating to Specially Serviced Mortgage Loans which have
received voluntary Principal Prepayments (not from Liquidation Proceeds or from
modifications to Specially Serviced Mortgage Loans), to the extent not offset by
Prepayment Interest Shortfalls relating to such Mortgage Loans.
(x) Correction of Errors: to withdraw funds deposited in
the Certificate Account in error;
(xi) Distribution Account: to make payment by 4:00 p.m.
(New York City time) on each Master Servicer Remittance Date to the Distribution
Account of the remaining amounts in the Certificate Account other than amounts
held for payment in future periods or pursuant to Section 5.2(b) below; and
(xii) Clear and Terminate: to clear and terminate the
Certificate Account pursuant to
Section 8.29.
The Master Servicer shall keep and maintain a separate
accounting for each Mortgage Loan for the purpose of justifying any withdrawal
from the Certificate Account.
(b) Scheduled Payments due in a Collection Period
succeeding the Collection Period relating to such Master Servicer Remittance
Date, Prepayments received after the related Collection Period, or other amounts
not distributable on the related Distribution Date, shall be held in the
Certificate Account and shall be distributed on the Master Servicer Remittance
Date or Dates to which such succeeding Collection Period or Periods relate.
(c) On each Master Servicer Remittance Date in March of
every year commencing in March 2000, the Trustee shall withdraw all amounts then
in the Interest Reserve Account and deposit such amounts into the Distribution
Account.
SECTION 5.3 DISTRIBUTION ACCOUNT.
(a) The Trustee, shall establish, on or prior to the
Closing Date, and maintain in the name of the Trustee, an account (the
"Distribution Account"), to be held in trust for the benefit of the Holders
until disbursed pursuant to the terms of this Agreement, titled: "The Chase
Manhattan Bank, as Trustee, in trust for the benefit of the Holders of Morgan
Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-CAM1, Distribution Account." The Distribution Account shall be an Eligible
Account. Funds in the Distribution Account shall not be invested. The
Distribution Account shall be held separate and apart from and shall not be
commingled with any other monies including, without limitation, other monies of
the Trustee held under this Agreement.
(b) The Trustee shall deposit into the Distribution
Account on the Business Day received all moneys remitted by the Master Servicer
pursuant to this Agreement, including P&I Advances made by the Master Servicer
and the Trustee. On any Master Servicer Remittance Date, the Master Servicer
shall have no duty to remit to the Distribution Account any amounts other than
amounts held in the Certificate Account and collected during the related
Collection Period as provided in clauses (v) and (xi) of Section 5.2(a) and the
P&I Advance Amount. On the Master Servicer Remittance Date occurring in March of
any year, commencing in March 2000, the Trustee will deposit into the
Distribution Account amounts held in the Interest Reserve Account. The Trustee
shall make withdrawals from the Distribution Account and the Interest Reserve
Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution
Account and the Interest Reserve Account in error and pay such amounts to the
Persons entitled thereto;
(ii) to pay any amounts payable to the Trustee (including
the Trustee's Fee) or other expenses or other amounts permitted to be paid
hereunder and not previously paid to such Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders
pursuant to Section 6.4;
(iv) to make deposits into the Interest Reserve Account as
provided for in Section 5.1(d);
(v) to clear and terminate the Distribution Account and the
Interest Reserve Account pursuant to Section 10.2; and
(vi) with respect to the Interest Reserve Account, to make
deposits into the Distribution Account as provided for in Section 5.2(c); and
(vii) to make withdrawals of net investment earnings from
the Interest Reserve Account earned pursuant to Section 5.1(e).
SECTION 5.4 TRUSTEE REPORTS.
(a) Based solely on (and to the extent of the information
contained in) the Master Servicer Remittance Report provided to the Trustee by
the Master Servicer (no later than the Report Date), on each Distribution Date,
the Trustee shall be required to provide or make available either electronically
or by first class mail (or such other medium as the Depositor shall reasonably
request, the incremental cost of which shall be paid in advance by the recipient
thereof), to each Certificateholder, the Rating Agencies, the Master Servicer,
the Special Servicer, the Placement Agent, each Underwriter, the Depositor and
anyone the Depositor, the Placement Agent or any Underwriter reasonably
designates (i) a Monthly Statement to Certificateholders in CSSA format
(substantially in the form of Exhibit M) and (ii) a report containing
information regarding the Mortgage Loans as of the end of the related Collection
Period, which report shall contain substantially the categories of information
regarding the Mortgage Loans set forth in Appendix I to the Final Prospectus
Supplement and shall be presented in tabular format substantially similar to the
format utilized in such Appendix I. The Trustee shall be entitled to
conclusively rely on any such information provided to it by the Master Servicer
or the Special Servicer and shall have no obligation to verify any such
information and the Trustee may disclaim responsibility for any information
distributed by the Trustee for which it is not the original source.
Upon written request, the Trustee shall send the reports
described in the preceding paragraph to any Certificate Owner (identified as
such by such Certificate Owner) or Certificateholder by first class mail at no
cost to such Certificate Owner or Certificateholder. In addition, the Trustee
shall make the reports described in the preceding paragraph available through
its website, initially located at www.chase.com/sfa (the "Trustee's Website"),
its electronic bulletin board and its customer service. The Trustee's electronic
bulletin board may be initially accessed by calling 1-800-204-2737, and the
Trustee's customer service may be initially accessed by calling (212) 946-3471.
For assistance with the above-mentioned Trustee services, Certificateholders or
any party hereto may initially call (212) 946-3228. In addition, the Trustee may
also make (i) Mortgage Loan information as presented in the "CSSA" standard file
format, the "CSSA" loan setup file format and the "CSSA" loan periodic update
file format, (ii) the Special Servicer Monthly Report and (iii) the Annual
Report available each month to any Certificateholder, any Certificate Owner, the
Rating Agencies or any other interested party via the Trustee's Website or, if
requested by a Certificateholder or Certificate Owner (identified as such by
such Certificate Owner) in writing, by first class mail. In addition, the
Trustee will make available, as a convenience for interested parties (and not in
the furtherance of the distribution of the Final Prospectus Supplement under the
securities laws) this Agreement and the Final Prospectus Supplement via the
Trustee's Website. The Trustee shall not be deemed to have made any
representations or warranties as to the accuracy or completeness of such
documents and will assume no responsibility therefor. In addition, the Trustee
may disclaim responsibility for any information distributed by it of which
information the Trustee is not the original source. In connection with providing
access to the Trustee's Website or 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; provided that this sentence shall not in any way limit the liability
the Trustee may otherwise have in performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written
request, if required by federal regulation, of any Certificateholder that is a
savings association, bank, or insurance company, the Trustee shall provide (to
the extent in its possession) to each such Certificateholder such reports and
access to non-privileged information and documentation regarding the Mortgage
Loans and the Certificates as such Certificateholder may reasonably deem
necessary to comply with applicable regulations of the Office of Thrift
Supervision or successor or other regulatory authorities with respect to
investment in the Certificates; provided that the Trustee shall be entitled to
be reimbursed by such Certificateholder for the Trustee's actual expenses
incurred in providing such reports and access.
(c) Within a reasonable period of time after the end of
each calendar year, the Trustee shall send to the Rating Agencies and to each
Person who at any time during the calendar year was a Certificateholder of
record, a report summarizing the items (in clauses (i), (ii) and (iii) of the
definition of Monthly Statement to Certificateholders) provided to
Certificateholders pursuant to this Section 5.4 on an annual basis and such
other customary information as the Trustee deems may be necessary or desirable
for such Holders to prepare their federal income tax returns.
(d) On each Distribution Date, the Trustee shall provide
to the Placement Agent, the Underwriters, the Rating Agencies, the Depositor,
the Operating Adviser, the Master Servicer, the Special Servicer, anyone the
Depositor or the Placement Agent or Underwriters reasonably designates, and upon
request to any Certificateholder, Certificate Owner (identified as such by such
Certificate Owner) or prospective Certificate Owner (as identified to the
Trustee by any existing Certificateholder or Certificate Owner), a report
substantially in the form of Exhibit Q (which may be delivered in an electronic
medium as the Trustee may determine from time to time) with the information
contained therein updated to the date of such report.
(e) The Trustee shall afford the Rating Agencies, the
Depositor, the Master Servicer, the Special Servicer, the Operating Adviser, any
Certificateholder, prospective Certificate Owner or any Person reasonably
designated by the Placement Agent, or any Underwriter upon reasonable notice and
during normal business hours, reasonable access to all relevant, non-attorney
privileged records and documentation regarding the applicable Mortgage Loans,
REO Property and all other relevant matters relating to this Agreement, and
access to Responsible Officers of the Trustee.
(f) Copies (or computer diskettes or other digital or
electronic formats of such information if reasonably available in lieu of paper
copies) of any and all of the foregoing items of this Section 5.4 shall be made
available by the Trustee upon request; provided, however, that the Trustee shall
be permitted to require payment by the requesting party (other than the
Depositor, the Master Servicer, the Special Servicer, the Placement Agent or any
Underwriter or any Rating Agency) of a sum sufficient to cover the reasonable
expenses actually incurred by the Trustee of providing access or copies
(including electronic or digital copies) of any such information requested in
accordance with the preceding sentence.
SECTION 5.5 TRUSTEE TAX REPORTS. The Trustee shall perform all
reporting and other tax compliance duties that are the responsibility of each
REMIC Pool under the Code, REMIC Provisions, or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority.
Consistent with this Agreement, the Trustee shall provide or cause to be
provided (i) to the United States Treasury or other Persons (including, but not
limited to, the transferor of a Class R-I, Class R-II or Class R-III
Certificate, to a Disqualified Organization or to an agent that has acquired a
Class R-I, Class R-II or Class R-III Certificate on behalf of a Disqualified
Organization) such information as is necessary for the application of any tax
relating to the transfer of a Class R-I, Class R-II or Class R-III Certificate
to any Disqualified Organization and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC Provisions. The
Master Servicer shall on a timely basis provide the Trustee with such
information concerning the Mortgage Loans as is necessary for the preparation of
the tax or information returns or receipts of each REMIC Pool as the Trustee may
reasonably request from time to time. The Special Servicer is required to
provide to the Master Servicer all information in its possession with respect to
the Specially Serviced Mortgage Loans and REO Property in order for the Master
Servicer to comply with its obligations under this Section 5.5. The Trustee
shall be entitled to conclusively rely on any such information provided to it by
the Master Servicer or the Special Servicer and shall have no obligation to
verify any such information.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY. Subject to Section
10.2(a), respecting the final distribution on the Certificates, on each
Distribution Date, the Trustee shall (1) first, withdraw from the Distribution
Account and pay to the Trustee any unpaid Trustee Fee and shall withdraw any
amounts deposited into the Distribution Account in error and direct such amounts
to the proper recipient thereof, and (2) second, make distributions in the
manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by
check mailed to such Holder's address as it appears on the Certificate Register
of the Certificate Registrar or, upon written request made to the Trustee
(except with respect to the Class G, Class H, Class J, Class K, Class L, Class
M, Class N and Class O Certificates by the registered owner of these
Certificates with an aggregate initial Certificate Balance (or in the case of
the Class X Certificates, a Notional Amount) of less than $50,000) no later than
five days after the related Record Date (or upon standing instructions given to
the Trustee on the Closing Date or within five days after any Record Date, which
instructions may be revoked at any time thereafter upon written notice to the
Trustee five days after the related Record Date), by wire transfer in
immediately available funds to an account specified in the request of such
Certificateholder; provided, that (i) remittances to the Trustee shall be made
by wire transfer of immediately available funds to the Distribution Account; and
(ii) the final distribution in respect of any Certificate shall be made only
upon presentation and surrender of such Certificate at such location specified
by the Trustee in a notice delivered to Certificateholders pursuant to Section
10.2(a). If any payment required to be made on the Certificates is to be made on
a day that is not a Business Day, then such payment will be made on the next
succeeding Business Day without compensation for such delay. All distributions
or allocations made with respect to Holders of Certificates of a Class on each
Distribution Date shall be made or allocated among the outstanding Interests in
such Class in proportion to their respective initial Certificate Balances or
Percentage Interests for the Class X Certificates.
SECTION 6.2 REMIC I.
(a) On each Distribution Date, the Trustee shall be
deemed to distribute to REMIC II, as holder of the REMIC I Regular Interests,
for the following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest collected or deemed collected on or with respect to
each Mortgage Loan or REO Property, Distributable Certificate Interest to each
Corresponding REMIC I Regular Interest;
(ii) from the portion of the Available Distribution Amount
attributable to principal collected or deemed collected on or with respect to
each Mortgage Loan or REO Property, principal to the Corresponding REMIC I
Regular Interest, until the Certificate Balance thereof is reduced to zero;
(iii) any remaining funds, to reimburse any Realized Losses
previously allocated to the REMIC I Regular Interests, plus interest on such
Realized Losses previously allocated thereto, compounded monthly at the
applicable Pass-Through Rates; and
(iv) thereafter, to the Class R-I Certificateholders.
SECTION 6.3 REMIC II.
On each Distribution Date, the Trustee shall be deemed to
distribute, from the Available Distribution Amount, to REMIC III, as holder of
the REMIC II Regular Interests, for the following purposes and in the following
order of priority:
(i) an amount equal to Distributable Certificate Interest
for the Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates,
Class A-4 Certificates and Class X Certificates to REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest A-3, REMIC II
Regular Interest A-4, REMIC II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II
Regular Interest J, REMIC II Regular Interest K, REMIC II Regular Interest L,
REMIC II Regular Interest M, REMIC II Regular Interest N and REMIC II Regular
Interest O, divided among such REMIC II Regular Interests in proportion to (A)
in the case of the REMIC II Regular Interest A-1, REMIC II Regular Interest A-2,
REMIC II Regular Interest A-3 and REMIC II Regular Interest A-4, the related
Accrued Certificate Interest for such Distribution Date and (B) in the case of
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest J,
REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular
Interest M, REMIC II Regular Interest N and REMIC II Regular Interest O,
one-twelfth of the product of the Certificate Balance of such Interest and the
related Class X Strip Rate (if any);
(ii) to REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2 and REMIC III Regular Interest A-3, the Principal Distribution
Amount for such Distribution Date, until the aggregate Certificate Balance of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2 and REMIC II
Regular Interest A-3 has been reduced to zero pro rata in proportion to the
aggregate amount to be distributed pursuant to this clause as follows: (A) to
REMIC II Regular Interest A-2, the REMIC II A-2 Scheduled Principal Amount and
(B) to the REMIC II Regular Interest A-1, until the aggregate outstanding
Certificate Balance of the REMIC II Regular Interest A-1 has been reduced to
zero, and then to REMIC II Regular Interest A-3 until the Certificate Balance of
REMIC II Regular Interest A-3 has been reduced to zero, an amount equal to the
difference between the Principal Distribution Amount and the REMIC II A-2
Scheduled Principal Amount;
(iii) upon payment in full of the Certificate Balance of
REMIC II Regular Interest A-3, to REMIC II Regular Interest A-4, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
the REMIC II Regular Interest A-4 has been reduced to zero; the Principal
Distribution Amount herein will be reduced by any portion thereof distributed in
respect of REMIC II Regular Interest A-1, REMIC II Regular Interest A-2 and
REMIC II Regular Interest A-3;
(iv) pro rata (a) to REMIC II Regular Interest A-1, REMIC
II Regular Interest A-2, REMIC II Regular Interest A-3 and REMIC II Regular
Interest A-4, to reimburse any unreimbursed Realized Losses previously allocated
thereto (and not reimbursed pursuant to clause (vi)(b) below), plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate; and (b) to REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest A-3, REMIC II Regular Interest A-4,
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC Regular Interest J, REMIC
II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M,
REMIC II Regular Interest N and REMIC II Regular Interest O, pro rata on the
basis of their respective entitlements to reimbursement described in this clause
(vi), to reimburse any Realized Losses previously allocated to REMIC II Regular
Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest A-3,
REMIC II Regular Interest A-4, REMIC II Regular Interest B, REMIC II Regular
Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II
Regular Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H,
REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N and REMIC
II Regular Interest O as a result of the allocation of Realized Interest Losses
to the Class X Certificates plus interest on such Realized Losses compounded
monthly at one-twelfth of the applicable Pass-Through Rate;
(v) to REMIC II Regular Interest B, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(vi) upon payment in full of the Certificate Balances of
REMIC II Regular Interest A-4, to REMIC II Regular Interest B, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest B has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest A-3 and REMIC II Regular Interest A-4;
(vii) to REMIC II Regular Interest B, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(b) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate;
(viii) to REMIC II Regular Interest C, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(ix) upon payment in full of the Certificate Balance of
REMIC II Regular Interest B, to REMIC II Regular Interest C, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest C has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC Interest
A-3, REMIC II Regular Interest A-4, and REMIC II Regular Interest B;
(x) to REMIC II Regular Interest C, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(b) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xi) to REMIC II Regular Interest D, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xii) upon payment in full of the Certificate Balance of
REMIC II Regular Interest C, to REMIC II Regular Interest D, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest D has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest B and
REMIC II Regular Interest C;
(xiii) to REMIC II Regular Interest D, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(b) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xiv) to REMIC II Regular Interest E, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xv) upon payment in full of the Certificate Balance of
REMIC II Regular Interest D, to REMIC II Regular Interest E, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest E has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest B, REMIC
II Regular Interest C and REMIC II Regular Interest D;
(xvi) to REMIC II Regular Interest E, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(b) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xvii) to REMIC II Regular Interest F, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xviii) upon payment in full of the Certificate Balance of
REMIC II Regular Interest E, to REMIC II Regular Interest F, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest F has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D and REMIC II Regular Interest
E;
(xix) to REMIC II Regular Interest F, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(b) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xx) to REMIC II Regular Interest G, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xxi) upon payment in full of the Certificate Balance of
REMIC II Regular Interest F, to REMIC II Regular Interest G, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest G has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E
and REMIC II Regular Interest F;
(xxii) to REMIC II Regular Interest G, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(b) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xxiii) to REMIC II Regular Interest H, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxiv) upon payment in full of the Certificate Balance of
REMIC II Regular Interest G, to REMIC II Regular Interest H, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest H has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E,
REMIC II Regular Interest F and REMIC II Regular Interest G;
(xxv) to REMIC II Regular Interest H, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(B) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xxvi) to REMIC II Regular Interest J, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xxvii) upon payment in full of the Certificate Balance of
REMIC II Regular Interest H, to REMIC II Regular Interest J, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest J has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E,
REMIC II Regular Interest F, REMIC II Regular Interest G and REMIC II Regular
Interest H;
(xxviii) to REMIC II Regular Interest J, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(b) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xxix) to REMIC II Regular Interest K, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xxx) upon payment in full of the Certificate Balance of
REMIC II Regular Interest J to REMIC II Regular Interest K, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest K has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E,
REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II Regular
Interest H and REMIC II Regular Interest J;
(xxxi) to REMIC II Regular Interest K, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(b) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xxxii) to REMIC II Regular Interest L, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxiii) upon payment in full of the Certificate Balance of
REMIC II Regular Interest K to REMIC II Regular Interest L, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest L has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E,
REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II Regular
Interest H, REMIC II Regular Interest J and REMIC II Regular Interest K;
(xxxiv) to REMIC II Regular Interest L, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(b) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xxxv) to REMIC II Regular Interest M, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xxxvi) upon payment in full of the Certificate Balance of
REMIC II Regular Interest L to REMIC II Regular Interest M, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest M has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E,
REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II Regular
Interest H, REMIC II Regular Interest J, REMIC II Regular Interest K and REMIC
II Regular Interest L;
(xxxvii) to REMIC II Regular Interest M, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(b) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xxxviii) to REMIC II Regular Interest N, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxix) upon payment in full of the Certificate Balance of
REMIC II Regular Interest M to REMIC II Regular Interest N, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest N has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E,
REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II Regular
Interest H, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II
Regular Interest L and REMIC II Regular Interest M;
(xl) to REMIC II Regular Interest N, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(b) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xli) to REMIC II Regular Interest O, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xlii) upon payment in full of the Certificate Balance of
REMIC II Regular Interest N to REMIC II Regular Interest O, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
REMIC II Regular Interest O has been reduced to zero; the Principal Distribution
Amount herein will be reduced by any portion thereof distributed in respect of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E,
REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II Regular
Interest H, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II
Regular Interest L, REMIC II Regular Interest M and REMIC II Regular Interest N;
(xliii) to REMIC II Regular Interest O, to reimburse any
unreimbursed Realized Losses previously allocated thereto (and not reimbursed
pursuant to clause (iv)(b) above), plus interest on such Realized Losses
compounded monthly at one-twelfth the applicable Pass-Through Rate; and
(xliv) thereafter, to the Class R-II Certificateholders.
SECTION 6.4 REMIC III.
(a) On each Distribution Date, the Trustee shall withdraw
from the Distribution Account an amount equal to the Available Distribution
Amount and shall distribute such amount in the following amounts and order of
priority:
(i) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates and Class X
Certificates, Distributable Certificate Interest for such Distribution Date, pro
rata in proportion to the Distributable Certificate Interest payable to each
such Class;
(ii) to the Holders of the Class A-1, Class A-2 and Class
A-3 Certificates, the Principal Distribution Amount for such Distribution Date,
until the aggregate Certificate Balance of the Class A-1, Class A-2 and Class
A-3 Certificates has been reduced to zero pro rata in proportion to the
aggregate amount to be distributed pursuant to this clause as follows: (A) to
the Class A-2 Certificates, the Class A-2 Scheduled Principal Amount and (B) to
the Class A-1 Certificates, until the aggregate outstanding Certificate Balance
of the Class A-1 Certificates has been reduced to zero, and then to the Class
A-3 Certificates until the Certificate Balance of the Class A-3 Certificates has
been reduced to zero, an amount equal to the difference between the Principal
Distribution Amount and the Class A-2 Scheduled Principal Amount;
(iii) upon payment in full of the Certificate Balance of
the Class A-3 Certificates, to the Holders of the Class A-4 Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A-1 Certificates, the Class A-2
Certificates and the Class A-3 Certificates), until the Certificate Balance of
the Class A-4 Certificates has been reduced to zero;
(iv) to the Holders of the Class A Certificates and Class X
Certificates, pro rata on the basis of their respective entitlements to
reimbursement described in this clause (iv), to reimburse any Realized Losses
previously allocated thereto plus interest on such Realized Losses compounded
monthly at one-twelfth the applicable Pass-Through Rate;
(v) to the Holders of the Class B Certificates,
Distributable Certificate Interest for such Distribution Date;
(vi) upon payment in full of the Certificate Balance of the
Class A-4 Certificates, to the Holders of the Class B Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A Certificates), until the
Certificate Balance of the Class B Certificates has been reduced to zero;
(vii) to the Holders of the Class B Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate);
(viii) to the Holders of the Class C Certificates,
Distributable Certificate Interest for such Distribution Date;
(ix) upon payment in full of the Certificate Balance of the
Class B Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A and Class B Certificates), until the
Certificate Balance of the Class C Certificates has been reduced to zero;
(x) to the Holders of the Class C Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xi) to the Holders of the Class D Certificates,
Distributable Certificate Interest for such Distribution Date;
(xii) upon payment in full of the Certificate Balance of
the Class C Certificates, to the Holders of the Class D Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B and Class C
Certificates), until the Certificate Balance of the Class D Certificates has
been reduced to zero;
(xiii) to the Holders of the Class D Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xiv) to the Holders of the Class E Certificates,
Distributable Certificate Interest for such Distribution Date;
(xv) upon payment in full of the Certificate Balance of the
Class D Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C and Class D
Certificates), until the Certificate Balance of the Class E Certificates has
been reduced to zero;
(xvi) to the Holders of the Class E Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xvii) to the Holders of the Class F Certificates,
Distributable Certificate Interest for such Distribution Date;
(xviii) upon payment in full of the Certificate Balance of
the Class E Certificates, to the Holders of the Class F Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C, Class D and
Class E Certificates), until the Certificate Balance of the Class F Certificates
has been reduced to zero;
(xix) to the Holders of the Class F Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xx) to the Holders of the Class G Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxi) upon payment in full of the Certificate Balance of
the Class F Certificates, to the Holders of the Class G Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C, Class D,
Class E and Class F Certificates), until the Certificate Balance of the Class G
Certificates has been reduced to zero;
(xxii) to the Holders of the Class G Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxiii) to the Holders of the Class H Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxiv) upon payment in full of the Certificate Balance of
the Class G Certificates, to the Holders of the Class H Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C, Class D,
Class E, Class F and Class G Certificates), until the Certificate Balance of the
Class H Certificates has been reduced to zero;
(xxv) to the Holders of the Class H Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxvi) to the Holders of the Class J Certificates,
Distributable Certificate Interest for such Distribution date;
(xxvii) upon payment in full of the Certificate Balance of
the Class H Certificates, to the Holders of the Class J Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by a any
portion thereof distributed to the Holders of the Class A, Class B, Class C,
Class D, Class E, Class F, Class G and Class H Certificates), until the
Certificate Balance of the Class J Certificates has been reduced to zero;
(xxviii) to the Holders of the Class J Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxix) to the Holders of the Class K Certificates,
Distributable Certificate Interest for such Distributable Date;
(xxx) upon payment in full of the Certificate Balance of
the Class J Certificates, to the Holders of the Class K Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H and Class J Certificates), until the
Certificate Balance of the Class K Certificates has been reduced to zero;
(xxxi) to the Holders of the Class K Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxxii) to the Holders of the Class L Certificates,
Distributable Certificate Interest for such Distributable Date;
(xxxiii) upon payment in full of the Certificate Balance of
the Class K Certificates, to the Holders of the Class L Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J and Class K Certificates), until the
Certificate Balance of the Class L Certificates has been reduced to zero;
(xxxiv) to the Holders of the Class L Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxxv) to the Holders of the Class M Certificates,
Distributable Certificate Interest for such Distributable Date;
(xxxvi) upon payment in full of the Certificate Balance of
the Class L Certificates, to the Holders of the Class M Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K and Class L Certificates),
until the Certificate Balance of the Class M Certificates has been reduced to
zero;
(xxxvii) to the Holders of the Class M Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxxviii) to the Holders of the Class N Certificates,
Distributable Certificate Interest for such Distributable Date;
(xxxix) upon payment in full of the Certificate Balance of
the Class M Certificates, to the Holders of the Class N Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, and Class K, Class L, Class M
Certificates), until the Certificate Balance of the Class N Certificates has
been reduced to zero;
(xl) to the Holders of the Class N Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xli) to the Holders of the Class O Certificates,
Distributable Certificate Interest for such Distributable Date;
(xlii) upon payment in full of the Certificate Balance of
the Class N Certificates, to the Holders of the Class O Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class
N Certificates), until the Certificate Balance of the Class O Certificates has
been reduced to zero;
(xliii) to the Holders of the Class O Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
and
(xliv) to the Holders of the Class R-III Certificates at
such time as the Certificate Balances of all Classes of REMIC Regular
Certificates have been reduced to zero, and Realized Losses previously allocated
to each Holder have been reimbursed to the Holders of the REMIC Regular
Certificates, any amounts remaining on deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date
occurring on or after the earliest date, if any, upon which the Certificate
Balances of all Classes of Subordinate Certificates have been reduced to zero or
the aggregate Appraisal Reduction in effect is greater than or equal to
Certificate Balances of all Classes of Subordinate Certificates, the Principal
Distribution Amount will be distributed, first, to the Holders of the Class A-1,
Class A-2, Class A-3 and Class A-4 Certificates, pro rata, based on their
respective Certificate Balances, in reduction of their respective Certificate
Balances, until the Certificate Balance of each such Class is reduced to zero;
and, second, to the Holders of the Class A-1, Class A-2, Class A-3 and Class A-4
Certificates, pro rata, based on their respective Certificate Balances, for the
unreimbursed amount of Realized Losses and Expense Losses previously allocated
to such Classes.
(b) [RESERVED]
SECTION 6.5 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND
SHORTFALLS DUE TO NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as
provided in subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan
realized during the related Collection Period shall reduce the Certificate
Balance of the Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan shall
be allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interest; and to the extent that such Realized
Interest Loss exceeds such amount, shall be treated as an Expense Loss;
(iii) Expense Losses (not otherwise applied above) realized
during the related Collection Period shall be allocated among the REMIC I
Regular Interests in proportion to their Certificate Balances after making all
other allocations for such Distribution Date.
(b) In the event that the Master Servicer or the Trustee
determines that an Advance previously made by it is a Nonrecoverable Advance and
the Master Servicer withdraws the amount of such Advance from the Certificate
Account pursuant to Section 5.2(a) hereof (which amount shall be treated as an
Available Advance Reimbursement Amount pursuant to Section 4.6), it shall
determine the portion of the amount so withdrawn that is attributable to (w)
interest on the related Mortgage Loan; (x) principal on the related Mortgage
Loan; (y) Servicing Advances; and (z) Advance Interest. The portion of the
amount so withdrawn from the Certificate Account that is allocable to:
(i) amounts previously advanced as interest on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I and
shall be allocated to reduce the amount of interest paid on each REMIC I Regular
Interest on such Distribution Date in proportion to Distributable Certificate
Interest otherwise payable thereon, and shall result in Unpaid Interest on each
such REMIC I Regular Interest;
(ii) amounts previously advanced as principal on the
related Mortgage Loan shall reduce the Available Distribution Amount for REMIC I
and shall be allocated to reduce the principal paid on each REMIC I Regular
Interest on which principal would otherwise be paid on such Distribution Date,
in proportion to such principal payments; and
(iii) amounts previously advanced as Servicing Advances, as
well as Advance Interest owing to the Master Servicer or the Trustee with
respect to Advances shall be treated as Expense Losses and allocated in
accordance with Section 6.5(a)(iii) above.
(c) At such time as a Final Recovery Determination is
made with respect to any Mortgage Loan with respect to which the Master Servicer
previously had withdrawn amounts from the Certificate Account following a
determination that Advances previously made were Nonrecoverable Advances, or at
such other time as a Realized Loss shall occur with respect to any such Mortgage
Loan, the Master Servicer shall compute the Realized Loss with respect to such
Mortgage Loan and the Trustee shall allocate such Realized Loss as follows:
(i) to the extent that any Realized Principal Loss does not
exceed the Certificate Balance on the Corresponding REMIC I Regular Interest,
such Realized Principal Loss shall be allocated to such REMIC I Regular
Interest; and to the extent that any Realized Principal Loss exceeds the
Certificate Balance of the Corresponding REMIC I Regular Interest, such Realized
Principal Loss shall be allocated to the other Corresponding REMIC I Regular
Interests with respect to which distributions of principal were reduced pursuant
to Section 6.5(b)(i) above, in proportion to the amount of such reductions;
(ii) any Realized Interest Loss shall be allocated to the
Corresponding REMIC I Interest to the extent of Unpaid Interest thereon and any
remaining portion of the Realized Interest Loss shall be allocated as a Realized
Interest Loss on each REMIC I Regular Interest with respect to which Unpaid
Interest was created pursuant to Section 6.5(b)(ii) above in proportion to the
amount of Unpaid Interest resulting from the reduction in distributions of
interest on such REMIC I Regular Interest pursuant to Section 6.5(b)(ii) above;
(iii) the portion of the amount recovered on the Mortgage
Loan with respect to which amounts were withdrawn from the Certificate Account
that are treated as recoveries of principal on the Mortgage Loan shall be
applied first, to make payments of principal on the Corresponding REMIC I
Regular Interest until the Certificate Balance thereof is reduced to zero and
thereafter to make payments of principal to the Corresponding REMIC I Regular
Interests with respect to which principal distributions were reduced pursuant to
Section 6.5(b)(i) above, in proportion to the amount of such reductions;
(iv) the portion of the amount recovered on the Mortgage
Loan with respect to which amounts were withdrawn from the Certificate Account
that are treated as recoveries of interest on the Mortgage Loan shall be applied
first, to make payments of Unpaid Interest on the Corresponding REMIC I Regular
Interest and thereafter to make payments of interest on each REMIC I Interest
with respect to which Unpaid Interest was created pursuant to Section 6.5(b)(ii)
above in proportion to the amount of Unpaid Interest resulting from the
reduction in distributions of interest on such REMIC I Regular Interest pursuant
to Section 6.5(b)(ii) above; and
(v) the portion of the amount recovered on the Mortgage
Loan with respect to which amounts were withdrawn from the Certificate Account
that is treated as a recovery of expenses on the Mortgage Loan shall be applied
in reimbursement of Expense Losses on each REMIC I Regular Interest with respect
to which an Expense Loss was created pursuant to Section 6.5(b)(iii) above in
proportion to the amount of the Expense Loss allocated thereto pursuant to
Section 6.5(b)(iii) above.
(d) On each Distribution Date, all Realized Losses and
Expense Losses on the REMIC I Interests for such Distribution Date (or for prior
Distribution Dates, to the extent not previously allocated) shall be allocated
to the Corresponding REMIC II Regular Interests in the amounts and in the manner
as will be allocated to the REMIC Regular Certificates relating thereto pursuant
to Section 6.5(e). Realized Losses allocated to the Class X Certificates shall
be allocated among REMIC II Regular Interest A-1, REMIC II Regular Interest A-2,
REMIC II Regular Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular
Interest B, REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II
Regular Interest E, REMIC II Regular Interest G, REMIC II Regular Interest H,
REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N and REMIC
II Regular Interest O pro rata based on the product of the Certificate Balance
of such REMIC II Regular Interest and the Class X Strip Rate (if any) applicable
to the Class of Certificates relating to such REMIC II Regular Interest.
(e) REMIC III. On each Distribution Date, all Realized
Losses on the REMIC III Regular Interests for such Distribution Date (or for
prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the REMIC Regular Certificates in Reverse Sequential Order, with
such reductions being allocated among the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates and Class X
Certificates, pro rata, in each case reducing (A) the Certificate Balance of
such Class until such Certificate Balance is reduced to zero (in the case of the
Class A Certificates); (B) Unpaid Interest owing to such Class to the extent
thereof; and (C) Distributable Certificate Interest owing to such Class,
provided, that Realized Losses and Expense Losses shall not reduce the aggregate
Certificate Balance of the REMIC Regular Certificates below the sum of the
aggregate Certificate Balances of the REMIC II Regular Interests.
SECTION 6.6 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS. On
each Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in
REMIC I, shall be allocated among the REMIC I Regular Interests, pro rata in
proportion to the Accrued Certificate Interest for each such REMIC I Regular
Interest for such Distribution Date and shall reduce Distributable Certificate
Interest for each such Interest. On each Distribution Date, any Net Aggregate
Prepayment Interest Shortfalls in REMIC II shall be allocated among the REMIC II
Regular Interests, pro rata in proportion to the Accrued Certificate Interest
for each such REMIC II Regular Interest for such Distribution Date and shall
reduce Distributable Certificate Interest for each such Interest. On each
Distribution Date, the amount of any Net Aggregate Prepayment Interest
Shortfalls on the REMIC III Regular Interests in the aggregate shall be
allocated to each Class of Certificates, pro rata, in proportion to the amount
of Accrued Certificate Interest payable to such Class of Certificates on such
Distribution Date, in each case reducing interest otherwise payable thereon. The
amount of Net Aggregate Prepayment Interest Shortfalls allocated to a Class of
Certificates pursuant to the preceding sentence shall reduce the Distributable
Certificate Interest for such Class for such Distribution Date.
SECTION 6.7 ADJUSTMENT OF SERVICING FEES. The total Servicing
Fee and Special Servicing Fee payable to the Master Servicer and the Special
Servicer, respectively, shall be adjusted as provided in Section 8.10(c) and
Section 9.11 herein. Any amount retained by REMIC I as a result of a reduction
of the Servicing Fee and the Special Servicing Fee shall be treated as interest
collected with respect to the prepaid Mortgage Loans with respect to which the
Servicing Fee or Special Servicing Fee adjustment occurs.
SECTION 6.8 APPRAISAL REDUCTIONS. Not later than the date on
which the earliest Appraisal Event occurs, the Special Servicer will obtain (A)
an Appraisal of the Mortgaged Property securing such Mortgage Loan, if such
Principal Balance exceeds $1,000,000 or (B) at the option of the Special
Servicer, if such Principal Balance is less than or equal to $1,000,000, either
an internal valuation prepared by the Special Servicer in accordance with MAI
Standards or an Appraisal; provided that if the Special Servicer had completed
or obtained an Appraisal or internal valuation within the immediately prior 12
months, the Special Servicer may rely on such Appraisal or internal valuation
and shall have no duty to prepare a new Appraisal or internal valuation, unless
such reliance would not be in accordance with the Servicing Standard; provided,
further, such Appraisal will be obtained no later than 60 days after the
Appraisal Event and an internal valuation will be obtained no later than 30 days
after the Appraisal Event. Such Appraisal or valuation shall be conducted in
accordance with the definition of "market value" as set forth in 12 C.F.R. ss.
225.65 and shall be updated at least annually to the extent such Mortgage Loan
remains a Required Appraisal Loan. The cost of any such Appraisal or valuation,
if not performed by the Special Servicer, shall be an expense of the Trust and
may be paid from REO Income, treated as an Additional Trust Expense or, to the
extent collections from such related Mortgage Loan does not cover the expense,
such unpaid expense shall be advanced by the Master Servicer in which event it
shall be treated as a Servicing Advance, subject to Section 4.4 hereof. The
Master Servicer, based on the Appraisal or internal valuation provided to it by
the Special Servicer, shall calculate any Appraisal Reduction. The Master
Servicer shall calculate or recalculate the Appraisal Reduction for any Mortgage
Loan based on updated Appraisals or internal valuations provided from time to
time to it by the Special Servicer. In addition, the Operating Adviser may at
any time request the Special Servicer to obtain (at the Operating Adviser's
expense) an updated Appraisal, with a corresponding adjustment to the amount of
the Appraisal Reduction.
SECTION 6.9 COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
Notwithstanding any other provision of this Agreement to the contrary, the
Trustee shall comply with all federal withholding requirements with respect to
payments to Certificateholders of interest, original issue discount, or other
amounts that the Trustee reasonably believes are applicable under the Code. The
consent of Certificateholders shall not be required for any such withholding and
any amount so withheld shall be regarded as distributed to the related
Certificateholders for purposes of this Agreement. In the event the Trustee
withholds any amount from payments made to any Certificateholder pursuant to
federal withholding requirements, the Trustee shall indicate to such
Certificateholder the amount withheld.
SECTION 6.10 PREPAYMENT PREMIUMS. On each Distribution Date,
the Trustee shall be deemed to distribute, as holder of the REMIC I Regular
Interests, any Prepayment Premiums collected on or with respect to the Mortgage
Loans. On each Distribution Date, the Trustee shall be deemed to distribute, as
holder of the REMIC II Regular Interests, any Prepayment Premiums deemed
distributed to the REMIC I Regular Interests, to be deemed distributed to the
REMIC II Regular Interest then entitled to distributions of principal from the
Principal Distribution Amount (or, if more than one Class of such REMIC II
Regular Interests is entitled to distributions of principal from the Principal
Distribution Amount, such Prepayment Premiums shall be deemed to be allocated
among such Classes on a pro rata basis in accordance with the relative amounts
of such deemed distributions of principal). Any Yield Maintenance Payment
collected with respect to a Mortgage Loan during any particular Collection
Period will be distributed on the following Distribution Date as between the
Class X Certificates and all other eligible Classes based upon the Base Interest
Fraction. The product of the Base Interest Fraction and the aggregate amount of
such Yield Maintenance Payment will be allocated for distribution to Classes
entitled to receive principal distributions on the related Distribution Date.
The product of (a) the amount of principal distributed to each Class of
Certificates (other than the Class X Certificates) as a percentage of the
principal distributed to all Classes multiplied by (b) the related Base Interest
Fraction and multiplied by (c) the amount of Yield Maintenance Payments
collected, will be distributed to each such Class of Certificates. The remainder
of such Yield Maintenance Payment will be distributed to the Class X
Certificates. Twenty-five percent (25%) of any Percentage Premium collected with
respect to a Mortgage Loan during any particular Collection Period will be
distributed on the following Distribution Date as follows: The holders of the
Class A, Class B, Class C, Class D, Class E and Class F Certificates entitled to
receive principal distributions on the related Distribution Date on a pro rata
basis, based on the amount of principal distributed to each such Class as a
percentage of the amount of principal distributed to all Classes. The remainder
of such Percentage Premiums will be allocated to the Class X Certificates.
Notwithstanding the foregoing, no Percentage Premiums or Yield Maintenance
Payments will be distributed to holders of the Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O or Residual Certificates. Instead, after
the Certificate Balances have been reduced to zero, all Percentage Premiums and
Yield Maintenance Payments will be distributed to holders of the Class X
Certificates.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) The Trustee shall undertake to perform only those
duties as are specifically set forth in this Agreement and no implied covenants
or obligations shall be read into this Agreement against the Trustee. Any
permissive right of the Trustee provided for in this Agreement shall not be
construed as a duty of the Trustee. The Trustee shall exercise such of the
rights and powers vested in it by this Agreement and following the occurrence
and during the continuation of any Event of Default hereunder, the Trustee shall
use the same degree of care and skill in its exercise as a prudent Person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
(b) The Trustee upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they on their face conform to the requirements of this
Agreement; provided that the Trustee shall not be responsible for the accuracy
or content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Master Servicer or any
other Person to it pursuant to this Agreement. If any such instrument is found
on its face not to conform to the requirements of this Agreement, the Trustee
shall request the providing party to correct the instrument and if not so
corrected, the Trustee shall inform the Certificateholders.
(c) Neither the Trustee nor any of its respective
directors, officers, employees, agents or Controlling Persons shall have any
liability to the Trust or the Certificateholders arising out of or in connection
with this Agreement, except for their respective negligence or willful
misconduct. No provision of this Agreement shall be construed to relieve the
Trustee or any of its respective directors, officers, employees, agents or
Controlling Persons from liability for their own negligent action, their own
negligent failure to act or their own willful misconduct or bad faith; provided
that:
(d) Neither the Trustee nor any of its respective
directors, officers, employees, agents or Controlling Persons shall be
personally liable with respect to any action taken, suffered or omitted to be
taken by it in its reasonable business judgment in accordance with this
Agreement or at the direction of Holders of Certificates evidencing not less
than a majority of the outstanding Certificate Balance of the Certificates;
(i) No provision of this Agreement shall require the
Trustee 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;
(ii) Neither the Trustee nor any of its respective
directors, officers, employees, agents or Controlling Persons shall be
responsible for any act or omission of the Master Servicer, the Special
Servicer, the Depositor or either Seller, or for the acts or omissions of each
other, including, without limitation, in connection with actions taken pursuant
to this Agreement;
(iii) The execution by the Trustee of any forms or plans of
liquidation in connection with any REMIC Pool shall not constitute a
representation by the Trustee as to the adequacy of such form or plan of
liquidation;
(iv) The Trustee shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties as Trustee in accordance with this Agreement. In such event, all legal
expense and costs of such action shall be expenses and costs of the Trust and
the Trustee shall be entitled to be reimbursed therefor from the Certificate
Account pursuant to Section 5.2(a)(vi); and
(v) The Trustee shall not be charged with knowledge of any
failure by the Master Servicer or the Special Servicer or by each other to
comply with its obligations under this Agreement or any act, failure, or breach
of any Person upon the occurrence of which the Trustee may be required to act,
unless a Responsible Officer of the Trustee obtains actual knowledge of such
failure.
(e) The Trustee covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by such
entity and used by such entity in the course of operation or management of, or
the compiling, reporting or generation of date required by this Agreement will
not contain any deficiency (x) in the ability of such software or hardware to
identify correctly or perform calculations or other processing with respect to
dates after August 31, 1999 or (y) that would cause such software to be fit no
longer for the purpose for which it was intended by reason of the changing of
the date from 1999 to 2000.
(f) The Trustee represents that it will use commercially
reasonable efforts to cure (by August 31, 1999) any deficiencies with regards to
the manipulation or calculation of dates beyond December 31, 1999 in the
internally maintained computer software systems used by the Trustee in the
conduct of its trust business which would materially and adversely affect its
ability to perform its obligations under this Agreement. The Trustee further
represents that it will use reasonable commercial efforts to obtain reasonable
assurances from each third party vendor of licensed computer software systems
used by the Trustee in the conduct of its trust business that such vendors shall
use reasonable commercial efforts to cure any deficiencies with regards to the
manipulation or calculation of dates beyond December 31, 1999 in such systems
which would materially and adversely affect the ability of the Trustee to
perform its obligations under this Agreement.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee may request, and may rely and shall be
protected in acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) the Trustee may consult with counsel and the advice of
such counsel and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) neither the Trustee nor any of its respective
directors, officers, employees, agents or Controlling Persons shall be
personally liable for any action taken, suffered or omitted by such Person in
its reasonable business judgment and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) the Trustee shall not be under any obligation to
exercise any remedies after default as specified in this Agreement or to
institute, conduct or defend any litigation hereunder or relating hereto or make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document (provided the same appears
regular on its face), unless requested in writing to do so by Holders of at
least 25% of the Aggregate Principal Amount of the Certificates then outstanding
provided that, if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in connection with
the foregoing is, in the opinion of such Person not reasonably assured to such
Person by the security afforded to it by the terms of this Agreement, such
Person may require reasonable indemnity against such expense or liability or
payment of such estimated expenses as a condition to proceeding. The reasonable
expenses of the Trustee shall be paid by the Certificateholders requesting such
examination;
(v) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, which agents or attorneys shall have any or all of the
rights, powers, duties and obligations of the Trustee conferred on it by such
appointment; provided that the Trustee shall continue to be responsible for its
duties and obligations hereunder and shall not be liable for the actions or
omissions of the Master Servicer, the Special Servicer, the Depositor or the
actions or omissions of each other;
(vi) the Trustee shall not be required to obtain a
deficiency judgment against a Mortgagor;
(vii) the Trustee shall not be required to expend its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such liability is not
assured to it;
(viii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, the
Trustee shall not be required to post any surety or bond of any kind in
connection with the execution or performance of its duties hereunder; and
(x) except as specifically provided hereunder in connection
with the performance of its specific duties, the Trustee shall not be
responsible for any act or omission of the Master Servicer, the Special
Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not
accept any contribution of assets to the Trust not specifically contemplated by
this Agreement unless the Trustee shall have received a Nondisqualification
Opinion at the expense of the Person desiring to contribute such assets with
respect to such contribution.
(c) All rights of action under this Agreement or under
any of the Certificates, enforceable by the Trustee, may be enforced by it
without the possession of any of the Certificates, or the production thereof at
the trial or any proceeding relating thereto, and any such suit, action or
proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of such Certificates, subject to the provisions of
this Agreement.
(d) [RESERVED.]
SECTION 7.3 THE TRUSTEE NOT LIABLE FOR CERTIFICATES OR
INTERESTS OR MORTGAGE LOANS. The Trustee makes no representations as to the
validity or sufficiency of this Agreement, the information contained in the
Private Placement Memorandum, the Preliminary Prospectus Supplement or Final
Prospectus Supplement for the REMIC III Certificates or Residual Certificates
(other than the certificate of authentication on the Certificates if the Trustee
is the Authenticating Agent) or of any Mortgage Loan, Assignment of Mortgage or
related document save that the Trustee represents that, assuming due execution
and delivery by the other parties hereto, this Agreement has been duly
authorized, executed and delivered by it and constitutes its valid and binding
obligation, enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law. The Trustee shall
not be accountable for the use or application by the Depositor or the Master
Servicer or the Special Servicer or by any of the Certificates or any of the
proceeds of such Certificates, or for the use or application by the Depositor or
the Master Servicer or the Special Servicer or of funds paid in consideration of
the assignment of the Mortgage Loans to the Trust or deposited into the
Distribution Account or any other fund or account maintained with respect to the
Certificates or any account maintained pursuant to this Agreement or for
investment of any such amounts. No recourse shall be had for any claim based on
any provisions of this Agreement, the Private Placement Memorandum, the
Preliminary Prospectus Supplement and Final Prospectus Supplement or the
Certificates (except with respect to the Trustee to the extent of information
furnished by the Trustee under the caption entitled "DESCRIPTION OF THE
CERTIFICATES--The Trustee" in the Preliminary Prospectus Supplement and Final
Prospectus Supplement), the Certificates, the Mortgage Loans or the assignment
thereof against the Trustee in such Person's individual capacity and any such
claim shall be asserted solely against the Trust or any indemnitor who shall
furnish indemnity as provided herein. The Trustee shall not be liable for any
action or failure of any action by the Depositor or the Master Servicer or the
Special Servicer or by each other hereunder. The Trustee shall not at any time
have any responsibility or liability for or with respect to the legality,
validity or enforceability of the Mortgages or the Mortgage Loans, or the
perfection and priority of the Mortgages or the maintenance of any such
perfection and priority, or for or with respect to the efficacy of the Trust or
its ability to generate the payments to be distributed to Certificateholders
under this Agreement, including, without limitation, the existence, condition
and ownership of any Mortgaged Property; the existence and enforceability of any
hazard insurance thereon; the validity of the assignment of the Mortgage Loans
to the Trust or of any intervening assignment; the completeness of the Mortgage
Loans; the performance or enforcement of the Mortgage Loans (other than if the
Trustee shall assume the duties of the Master Servicer); the compliance by the
Depositor, each Seller, the Mortgagor or the Master Servicer or the Special
Servicer or by each other with any warranty or representation made under this
Agreement or in any related document or the accuracy of any such warranty or
representation made under this Agreement or in any related document prior to the
receipt by a Responsible Officer of the Trustee of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies by
or at the direction of the Master Servicer or the Special Servicer or any loss
resulting therefrom; the failure of the Master Servicer or any Sub-Servicer or
the Special Servicer to act or perform any duties required of it on behalf of
the Trustee hereunder; or any action by the Trustee taken at the instruction of
the Master Servicer or the Special Servicer.
SECTION 7.4 THE TRUSTEE MAY OWN CERTIFICATES. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Trustee.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE. The
Trustee hereunder shall at all times be (i) an institution insured by the FDIC,
(ii) a corporation, authorized to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority, and (iii) an
institution whose long-term senior unsecured debt is rated not less than "AA" by
S&P and, if rated by Fitch, "BBB" by Fitch, and if not rated by Fitch, then
otherwise acceptable to Fitch. If such corporation or national bank 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 or national
bank shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. In case at any time the Trustee
shall cease to be eligible in accordance with provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 7.6.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE 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 and the Rating Agencies; provided that such
resignation shall not be effective until its successor shall have accepted the
appointment. Upon receiving such notice of resignation, the Depositor will
promptly appoint a successor trustee. If no successor trustee shall have been so
appointed and shall have accepted appointment within 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. It shall be a
condition to the appointment of a successor trustee that the Rating Agencies
shall have confirmed in writing that such appointment shall not result in a
downgrading, qualification or withdrawal of the ratings of each Class of
Certificates then rated.
(b) If at any time (i) the Trustee shall cease to be
eligible in accordance with the provisions of Section 7.5(a) and shall fail to
resign after written request therefor by the Depositor, (ii) the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a
tax is imposed or threatened with respect to the Trust or any REMIC Pool by any
state in which the Trustee or the Trust held by the Trustee is located solely
because of the location of the Trustee in such state; provided, however, that,
if the Trustee agrees to indemnify the Trust for such taxes, it shall not be
removed pursuant to this clause (iii) or (iv) the continuation of the Trustee as
such would result in a downgrade, qualification or withdrawal of the rating by
the Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies. In the case of removal under clauses (i), (ii),
(iii) and (iv) above, the Trustee shall bear all such costs of transfer. Such
succession shall take effect after a successor trustee has been appointed.
(c) The Holders of more than 50% of the Aggregate
Principal Amount of the Certificates then outstanding may for cause upon 30
days' written notice to the Trustee and to the Depositor remove the Trustee, by
such written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor and
one copy to the Trustee so removed; the Depositor shall thereupon use its best
efforts to appoint a successor Trustee in accordance with this Section.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the provisions of this
Section shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 7.7. Upon any succession of the Trustee under
this Agreement, the predecessor Trustee shall be entitled to the payment of
compensation and reimbursement agreed to under this Agreement for services
rendered and expenses incurred. The Trustee shall not be liable for any action
or omission of any successor Trustee.
SECTION 7.7 SUCCESSOR TRUSTEE.
(a) Any successor Trustee appointed as provided in
Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee 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 like effect as if originally
named as Trustee herein. The predecessor Trustee shall deliver (at such
predecessor's own expense) to the successor Trustee all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee
shall also deliver all records or copies thereof maintained by the predecessor
Trustee in the administration hereof as may be reasonably requested by the
successor Trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee shall execute and deliver such other instruments and do such
other things as may reasonably be required to more fully and certainly vest and
confirm in the successor Trustee all such rights, powers, duties and
obligations. Anything herein to the contrary notwithstanding, in no event shall
the combined fees payable to a successor Trustee exceed the Trustee Fee.
(b) No successor Trustee shall accept appointment as
provided in this Section unless at the time of such appointment such successor
Trustee shall be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee
as provided in this Section, the successor Trustee shall mail notice of the
succession of such Trustee hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to the Rating Agencies. The
expenses of such mailing shall be borne by the successor Trustee. If the
successor Trustee fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee, the Master Servicer shall cause such
notice to be mailed at the expense of the successor Trustee.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Trustee shall be a party, or any Persons succeeding
to the business of such Trustee shall be the successor of such Trustee
hereunder, as applicable, provided that such Person shall be eligible under the
provisions of Section 7.5, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE,
AGENTS OR CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any
time, the Trustee, the Depositor or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the aggregate Certificate Balance
of the Certificates then outstanding shall each have the power from time to time
to appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer or Special Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders, shall have such powers, rights and remedies as shall
be specified in the instrument of appointment and shall be deemed to have
accepted the provisions of this Agreement; provided that no such appointment
shall, or shall be deemed to, constitute the appointee an agent of the Trustee;
provided, further, that the Trustee shall be liable for the actions of any
co-trustee or separate trustee appointed by it and shall have no liability for
the actions of any co-trustee or separate trustee appointed by the Depositor or
the Certificateholders pursuant to this paragraph.
(b) The Trustee may from time to time appoint one or more
independent third-party agents to perform all or any portion of its
administrative duties hereunder (i.e., collection and distribution of funds,
preparation and dissemination of reports, monitoring compliance, etc.). The
Trustee shall supervise and oversee such agents appointed by it. The terms of
any arrangement or agreement between the Trustee and such agent, may be
terminated, without cause and without the payment of any termination fees in the
event the Trustee is terminated in accordance with this Agreement. In addition,
neither the Trust nor the Certificateholders shall have any liability or direct
obligation to such agent. Notwithstanding, the terms of any agreement, the
Trustee shall remain at all times obligated and liable to the Trust and the
Certificateholders for performing its duties hereunder.
(c) Every separate trustee, co-trustee, and custodian
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody and payment of moneys shall
be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder) the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations, including the holding of title to the
Trust or any portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(d) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at
any time, constitute the Trustee its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 7.5 hereof and no notice to Certificateholders of the
appointment of any separate trustee, co-trustee or custodian hereunder shall be
required.
(g) The Trustee agrees to instruct the co-trustees, if
any, to the extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of
the co-trustees, separate trustees or custodians appointed pursuant to this
Section 7.9 to the extent, and in accordance with the standards, specified in
Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which
consent shall not be unreasonably withheld, the Trustee may appoint at any time
a successor Custodian. Until such time as the Trustee appoints a successor
Custodian, the Trustee shall be the Custodian hereunder. Upon the appointment of
a successor custodian, the Trustee and the Custodian shall enter into a
custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Trustee shall serve as the initial Authenticating
Agent hereunder for the purpose of executing and authenticating Certificates.
Wherever reference is made in this Agreement to the execution and authentication
of Certificates by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include execution and authentication on behalf
of the Trustee by the Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by the Authenticating Agent. Any successor
Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws of the
United States of America or of any state and having a principal office and place
of business in the Borough of Manhattan, the City and State of New York, having
a combined capital and surplus of at least $50,000,000, authorized under such
laws to do a trust business and subject to supervision or examination by federal
or state authorities.
(b) Any Person into which the Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the
Authenticating Agent shall be a party, or any Person succeeding to the corporate
agency business of the Authenticating Agent, shall continue to be the
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by
giving at least 30 days' advance written notice of resignation to the Trustee
and the Depositor. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice of termination to the
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time the Authenticating Agent
shall cease to be eligible in accordance with the provisions of Section 7.10(a),
the Trustee may appoint a successor Authenticating Agent, shall give written
notice of such appointment to the Depositor and shall mail notice of such
appointment to all Holders of Certificates. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. No such
Authenticating Agent shall be appointed unless eligible under the provisions of
Section 7.10(a). No Authenticating Agent shall have responsibility or liability
for any action taken by it as such at the direction of the Trustee.
SECTION 7.11 INDEMNIFICATION OF TRUSTEE.
(a) The Trustee and each of its respective directors,
officers, employees, agents and Controlling Persons shall be entitled to
indemnification from the Trust for any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgements and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
incurred without negligence or willful misconduct on their respective part,
arising out of, or in connection with this Agreement, the Certificates and the
acceptance or administration of the trusts or duties created hereunder
(including, without limitation, any unanticipated loss, liability or expense
incurred in connection with any action or inaction of the Master Servicer, the
Special Servicer or the Depositor or of each other such Person hereunder but
only to the extent the Trustee is unable to recover within a reasonable period
of time such amount from such third party pursuant to this Agreement) including
the costs and expenses of defending themselves against any claim in connection
with the exercise or performance of any of their powers or duties hereunder and
the Trustee and each of its respective directors, officers, employees, agents
and Controlling Persons shall be entitled to indemnification from the Trust for
any unanticipated loss, liability or expense incurred in connection with the
provision by the Trustee of the reports required to be provided by it pursuant
to this Agreement; provided that:
(i) with respect to any such claim, the Trustee shall have
given the Depositor, the Master Servicer, and the Holders of the Certificates
written notice thereof promptly after a Responsible Officer of the Trustee shall
have knowledge thereof; provided, however, that failure to give such notice to
the Depositor, Master Servicer, each other and the Holders of Certificates shall
not affect the Trustee's rights to indemnification herein unless the Depositor's
defense of such claim on behalf of the Trust is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the
Trustee shall cooperate and consult fully with the Depositor in preparing such
defense; and
(iii) notwithstanding anything to the contrary in this
Section 7.11, the Trust shall not be liable for settlement of any such claim by
the Trustee entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any
termination of this Agreement and the resignation or removal of the Trustee.
(c) The Depositor shall indemnify and hold harmless the
Trustee, its respective directors, officers, employees or agents and Controlling
Persons from and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which the Trustee, its respective
directors, officers, employees or agents or Controlling Person may become
subject under the 1933 Act, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Private Placement Memorandum, in
the Preliminary Prospectus Supplement or Final Prospectus Supplement, or arises
out of, or is based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made, not misleading
and shall reimburse the Trustee, its respective directors, officers, employees,
agents or Controlling Person for any legal and other expenses reasonably
incurred by the Trustee or any such director, officer, employee, agent or
Controlling Person in investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action; provided, that the Depositor
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission made in any such Private
Placement Memorandum, Preliminary Prospectus Supplement or Final Prospectus
Supplement in reliance upon and in conformity with written information
concerning the Trustee furnished to the Depositor by or on behalf of such person
specifically for inclusion therein. It is hereby expressly agreed that the only
written information provided by the Trustee for inclusion in the Preliminary
Prospectus Supplement and Final Prospectus Supplement is set forth in the case
of the Trustee in the first and second sentences of the first paragraph under
the caption titled "DESCRIPTION OF THE CERTIFICATES--The Trustee." The Trustee
shall immediately notify the Depositor if a claim is made by a third party with
respect to this Section 7.11(c) entitling such person, its directors, officers,
employees, agents or Controlling Person to indemnification hereunder, whereupon
the Depositor shall assume the defense of any such claim (with counsel
reasonably satisfactory to such person) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Depositor shall not affect any rights the
Trustee, its respective directors, officers, employees, agents or Controlling
Person may have to indemnification under this Section 7.11(c), unless the
Depositor's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the resignation or removal of the Trustee.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE. The Trustee shall
be entitled to receive the Trustee Fee pursuant to Section 5.3(b)(ii) (which
shall not be limited by any provision of law with respect to the compensation of
a trustee of an express trust), for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties respectively, hereunder of the Trustee. The Trustee shall also
be entitled to additional compensation of interest or other income earned on
deposits in the Interest Reserve Account (but only to the extent of the net
investment earnings, if any, with respect to such account). The Trustee shall
also be entitled to recover from the Trust all reasonable unanticipated expenses
and disbursements incurred or made by the Trustee in accordance with any of the
provisions of this Agreement (including the reasonable compensation and the
reasonable expenses and disbursements of its counsel and other Persons not
regularly in its employ), not including expenses incurred in the ordinary course
of performing its duties as Trustee hereunder, and except any such expense,
disbursement or advance as may arise from the negligence or bad faith of such
Person or which is the responsibility of the Holders of the Certificates
hereunder. The provisions of this Section 7.12 shall survive any termination of
this Agreement and the resignation or removal of the Trustee.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise
expressly provided in this Agreement, the Trustee may demand payment or delivery
of, and shall receive and collect, all money and other property payable to or
receivable by the Trustee pursuant to this Agreement. The Trustee shall hold all
such money and property received by it as part of the Trust and shall distribute
it as provided in this Agreement. If the Trustee shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Master
Servicer, the Trustee shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee
shall subsequently receive any such amount, it may withdraw such request.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Master Servicer is
terminated pursuant to this Agreement, the Trustee shall be the successor in all
respects to the Master Servicer in its capacity under this Agreement and the
transactions set forth or provided for therein and shall have all the rights and
powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer by the
terms and provisions of this Agreement; provided that, any failure to perform
such duties or responsibilities caused by the Master Servicer's failure to
provide required information shall not be considered a default by the Trustee
hereunder. In addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Master Servicer contained in this
Agreement or (ii) any obligation incurred by the Master Servicer prior to its
termination or resignation (including, without limitation, the Master Servicer's
obligation to repay losses resulting from the investment of funds in any account
established under this Agreement). In the Trustee's capacity as such successor,
the Trustee shall have the same limitations on liability granted to the Master
Servicer in this Agreement. As compensation therefor and subject to Section
8.10(a), the Trustee shall be entitled to receive all the compensation payable
to the Master Servicer set forth in this Agreement, including, without
limitation, the Servicing Fee but excluding the Excess Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if
the Trustee is unwilling to so act, or (B) shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint any
established commercial or multifamily mortgage finance institution, servicer or
special servicer or mortgage servicing institution having a net worth of not
less than $15,000,000, meeting such other standards for a successor servicer as
are set forth in this Agreement and with respect to which Rating Agency
Confirmation is obtained, as the successor to the Master Servicer hereunder in
the assumption of all of the responsibilities, duties or liabilities of a
servicer as Master Servicer hereunder. Pending any such appointment, the Trustee
shall act in such capacity as hereinabove provided. Any entity designated by the
Trustee as successor Master Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for the Master Servicer as
set forth herein. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree subject to
Section 8.10. The Trustee and such successor shall take such actions, consistent
with this Agreement as shall be necessary to effectuate any such succession. The
Master Servicer shall cooperate with the Trustee and any successor servicer in
effecting the termination of the Master Servicer's responsibilities and rights
under this Agreement, including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee and successor
servicer all documents and records in its possession in electronic or other form
reasonably requested by the successor servicer to enable the successor servicer
to assume the Master Servicer's functions hereunder and the transfer to the
Trustee or such successor servicer of all amounts which shall at the time be or
should have been deposited by the Master Servicer in the Certificate Account and
any other account or fund maintained with respect to the Certificates or
thereafter be received by the Master Servicer with respect to the Mortgage
Loans. Neither the Trustee nor any other successor servicer shall be deemed to
be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Master Servicer to deliver, or any delay in delivering, cash,
documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer. The Trustee shall be
reimbursed for all of its out-of-pocket expenses incurred in connection with
obtaining such successor Master Servicer by the Trust within 30 days of the
Trustee's submission of an invoice with respect thereto, to the extent such
expenses have not been reimbursed by the Master Servicer as provided herein;
such expenses paid by the Trust shall be deemed to be an Additional Trust
Expense.
(c) On and after the time the Special Servicer is
terminated pursuant to this Agreement, in accordance with Section 9.30(a)(ii),
the Trustee shall be the successor in all respects to the Special Servicer in
its capacity under this Agreement and the transactions set forth or provided for
therein and shall have all the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto and arising thereafter
placed on the Special Servicer by the terms and provisions of this Agreement;
provided that, any failure to perform such duties or responsibilities caused by
the Special Servicer's failure to provide required information shall not be
considered a default by the Trustee hereunder. In addition, the Trustee shall
have no liability relating to (i) the representations and warranties of the
Special Servicer contained in this Agreement or (ii) any obligation incurred by
the Special Servicer prior to its termination or resignation. In the Trustee's
capacity as such successor, the Trustee shall have the same limitations on
liability granted to the Special Servicer in this Agreement. As compensation
therefor, the Trustee shall be entitled to receive all the compensation payable
to the Special Servicer set forth in this Agreement, including, without
limitation the Special Servicer Compensation, subject to Section 9.11(a).
(d) Notwithstanding the above, the Trustee may, if the
Trustee shall be unwilling to so act, or shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint, any
established commercial or multifamily mortgage finance institution, special
servicer or mortgage servicing institution having a net worth of not less than
$15,000,000, and meeting such other standards for a successor Special Servicer
as are set forth in Section 9.21, and with respect to which Rating Agency
Confirmation is obtained, as the successor to the Special Servicer hereunder in
the assumption of all of the responsibilities, duties or liabilities of a
special servicer as Special Servicer hereunder. Pending any such appointment,
the Trustee shall act in such capacity as hereinabove provided. Any entity
designated by the Trustee as successor Special Servicer may be an Affiliate of
the Trustee; provided that, such Affiliate must meet the standards for a
successor Special Servicer set forth herein. In connection with such appointment
and assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree; provided that no such compensation shall be in excess of that permitted
to the Special Servicer under this Agreement. The Trustee and such successor
shall take such actions, consistent with this Agreement as shall be necessary to
effectuate any such succession. The Special Servicer shall cooperate with the
Trustee and any successor Special Servicer in effecting the termination of the
Special Servicer's responsibilities and rights under this Agreement, including,
without limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of
the assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions hereunder and the transfer to the Trustee or such successor Special
Servicer of all amounts which shall at the time be or should have been deposited
by the Special Servicer in the Certificate Account and any other account or fund
maintained with respect to the Certificates or thereafter be received by the
Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any
other successor Special Servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of the Special
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, or (ii) restrictions imposed by any regulatory authority having jurisdiction
over the Special Servicer. The Trustee shall be reimbursed for all of its
out-of-pocket expenses incurred in connection with obtaining such successor
Special Servicer by the Trust within 30 days of submission of an invoice with
respect thereto but only to the extent such expenses have not been reimbursed by
the Special Servicer as provided herein; and such expenses paid by the Trust
shall be deemed to be an Additional Trust Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of the
Master Servicer, or the Special Servicer, or appointment of a successor to the
Master Servicer, or the Special Servicer, the Trustee shall promptly mail notice
thereof by first class mail to the Rating Agencies and the Certificateholders at
their respective addresses appearing on the Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE.
The Trustee hereby represents and warrants as of the Closing Date that:
(a) the Trustee is a New York banking corporation, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(b) the execution and delivery by the Trustee of this
Agreement have been duly authorized by all necessary action on the part of the
Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Trustee
or its properties that would materially and adversely affect the Trustee's
ability to perform its obligations under this Agreement, (ii) the organizational
documents of the Trustee, or (iii) the terms of any material agreement or
instrument to which the Trustee is a party or by which it is bound; the Trustee
is not in default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or other governmental
agency, which default would materially and adversely affect its performance
under this Agreement;
(c) the execution, delivery and performance by the
Trustee of this Agreement and the consummation of the transactions contemplated
by this Agreement do not require the consent, approval, authorization or order
of, the giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Trustee to perform its obligations
under this Agreement;
(d) this Agreement has been duly executed and delivered
by the Trustee and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally as from
time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and
(e) no litigation is pending or, to the Trustee's
knowledge, threatened, against the Trustee that, either in one instance or in
the aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee to perform under
the terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE TRUSTEE. The Trustee, at its own expense, shall
maintain in effect a Fidelity Bond and a Errors and Omissions Insurance Policy.
The Errors and Omissions Insurance Policy and Fidelity Bond shall be issued by a
Qualified Insurer in form and in amount customary for trustees in similar
transactions (unless the Trustee, self insures as provided below). In the event
that any such Errors and Omissions Insurance Policy or Fidelity Bond ceases to
be in effect, the Trustee, shall obtain a comparable replacement policy or bond
from an insurer or issuer meeting the requirements set forth above as of the
date of such replacement. So long as the long-term debt rating of the Trustee is
not less than two rating categories (ignoring pluses or minuses) lower than the
highest rating of the Certificates, but in any event not less than "BBB" as
rated by S&P and "AA" as rated by Fitch, if rated by Fitch, the Trustee may
self-insure for the Fidelity Bond and the Errors and Omissions Insurance Policy.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement,
for and on behalf of the Trust and for the benefit of the Certificateholders as
a whole, the Master Servicer shall service and administer the Mortgage Loans in
accordance with the Servicing Standard and the terms of this Agreement.
In connection with such servicing and administration, the
Master Servicer shall seek to maximize the timely recovery of principal and
interest on the Mortgage Notes in the best economic interests of the
Certificateholders as a whole; provided, however, that nothing herein contained
shall be construed as an express or implied guarantee by the Master Servicer of
the collectibility of payments on the Mortgage Loans or shall be construed as
impairing or adversely affecting any rights or benefits specifically provided by
this Agreement to the Master Servicer, including with respect to Servicing Fees,
Excess Servicing Fees and other compensation or the right to be reimbursed for
Advances.
(b) The Master Servicer, in the case of an event
specified in clause (x) of this subclause (b), and the Special Servicer, in the
case of an event specified in clause (y) of this subclause (b), shall each send
a written notice to the other and to the Trustee and the Rating Agencies within
two Business Days after becoming aware (x) that a Servicing Transfer Event has
occurred with respect to a Mortgage Loan or (y) that a Mortgage Loan has become
a Rehabilitated Mortgage Loan, which notice shall identify the applicable
Mortgage Loan and, in the case of an event specified in clause (x) of this
subclause (b) above, the Servicing Transfer Event that occurred.
(c) The Master Servicer covenants that by August 31,
1999, any custom-made software or hardware designed or purchased or licensed by
the Master Servicer and used by the Master Servicer in the course of operation
or management of, or the compiling, reporting or generation of data required by
this Agreement will not contain any deficiency (x) in the ability of such
software or hardware to identify correctly or perform calculations or other
processing with respect to dates after December 31, 1999 or (y) that would cause
such software to be fit no longer for the purpose for which it was intended by
reason of the changing of the date from 1999 to 2000.
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE MASTER SERVICER. The Master Servicer, at its expense,
shall maintain in effect a Servicer Fidelity Bond and a Servicer Errors and
Omissions Insurance Policy. The Servicer Errors and Omissions Insurance Policy
and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the
Master Servicer self insures as provided below) and be in form and amount
consistent with the Servicing Standard. In the event that any such Servicer
Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in
effect, the Master Servicer shall obtain a comparable replacement policy or bond
from an insurer or issuer meeting the requirements set forth above as of the
date of such replacement. So long as the long-term rating of the Master Servicer
is not less than two rating categories (ignoring pluses or minuses) lower than
the highest rating of the Certificates, but in any event not less than "BBB" as
rated by S&P and "AA" as rated by Fitch, respectively, the Master Servicer may
self-insure for the Servicer Fidelity Bond and the Servicer Errors and Omissions
Insurance Policy.
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The Master Servicer shall service and administer the
Mortgage Loans and shall, subject to the Servicing Standard and to Sections 8.7,
8.18, 8.19, 8.27 and Article XII hereof and as otherwise provided herein and by
the Code, have full power and authority to do any and all things which it may
deem necessary or desirable in connection with such servicing and administration
in accordance with the Servicing Standard. To the extent consistent with the
foregoing and subject to any express limitations and provisions set forth in
this Agreement, the Master Servicer shall have full power and authority with
respect to each Mortgage Loan and Mortgaged Property (other than any Specially
Serviced Mortgaged Loan and the related Mortgaged Property or any REO Property)
to do or cause to be done any and all things that it may deem necessary or
desirable in connection with such servicing and administration, including but
not limited to, the power and authority, subject to the terms hereof, (A) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents (including,
without limitation, estoppel certificates, financing statements, continuation
statements, title endorsements and reports and other documents and instruments
necessary to preserve and maintain the lien on the related Mortgaged Property
and related collateral), (B) to consent to assignments and assumptions or
substitutions, and transfers of interest of any Mortgagor, in each case subject
to and in accordance with the terms of the related Mortgage Loan and Section
8.7, (C) to collect any Insurance Proceeds and Liquidation Proceeds, (D) to
consent to any subordinate financings to be secured by any related Mortgaged
Property to the extent that such consent is required pursuant to the terms of
the related Mortgage or which otherwise is required and to administer and
monitor the application of such proceeds and awards in accordance with the terms
of the Mortgage Loan as the Master Servicer deems reasonable under the
circumstances, in each case subject to Section 8.7, (E) to consent to the
application of any proceeds of insurance policies or condemnation awards to the
restoration of the related Mortgaged Property or otherwise, (F) to bring an
action in a court of law or equity to enforce rights of the Trustee and the
Certificateholders with respect to the related Mortgaged Properties, (G) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
documents relating to the management, operation, maintenance, repair, leasing
and marketing of the related Mortgaged Properties, including agreements and
requests by the Mortgagor with respect to modifications of the standards of
operation and management of the Mortgaged Properties or the replacement of asset
managers, (H) to obtain, release, waive or modify any term other than a Money
Term of a Mortgage Loan and related documents subject to and to the extent
permitted by Section 8.18, (I) to exercise all rights, powers and privileges
granted or provided to the holder of the Mortgage Notes under the terms of the
Mortgage, including all rights of consent or approval thereunder, (J) to enter
into lease subordination agreements, non-disturbance and attornment agreements
or other leasing or rental arrangements which may be requested by the Mortgagor
or the Mortgagor's tenants, (K) to join the Mortgagor in granting, modifying or
releasing any easements, covenants, conditions, restrictions, equitable
servitudes, or land use or zoning requirements with respect to the Mortgaged
Properties to the extent such does not adversely affect the value of the related
Mortgage Loan or Mortgaged Property, (L) to execute and deliver, on behalf of
itself, the Trustee, the Trust or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties, and (M) hold in accordance with the terms
of any Mortgage Loan and this Agreement, Defeasance Collateral. Notwithstanding
the above, the Master Servicer shall have no power to (i) waive any Prepayment
Premiums or (ii) consent to any modification of a Money Term of a Mortgage Loan.
Nothing contained in this Agreement shall limit the ability of the Master
Servicer to lend money to (to the extent not secured, in whole or in part, by
any Mortgaged Property), accept deposits from and otherwise generally engage in
any kind of business or dealings with any Mortgagor as though the Master
Servicer was not a party to this Agreement or to the transactions contemplated
hereby; provided, however, that this sentence shall not modify the Servicing
Standard.
(b) The Master Servicer shall not be obligated to service
and administer the Mortgage Loans which have become and continue to be Specially
Serviced Mortgage Loans, except as specifically provided herein. The Master
Servicer shall be required to make all calculations and prepare all reports
required hereunder with respect to such Specially Serviced Mortgage Loans (other
than calculations and reports expressly required to be made by the Special
Servicer hereunder) as if no Servicing Transfer Event had occurred and shall
continue to collect all Scheduled Payments, make Servicing and P&I Advances as
set forth herein and to render such incidental services with respect to such
Specially Serviced Mortgage Loans, all as are specifically provided for herein,
but shall have no other servicing or other duties with respect to such Specially
Serviced Mortgage Loans. The Master Servicer shall give notice within three
Business Days to the Special Servicer of any collections it receives from any
Specially Serviced Mortgage Loans, subject to changes agreed upon from time to
time by the Special Servicer and the Master Servicer. The Special Servicer shall
instruct within one Business Day after receiving such notice the Master Servicer
on how to apply such funds. The Master Servicer within one Business Day after
receiving such instructions shall apply such funds in accordance with the
Special Servicer's instructions. Each Mortgage Loan that becomes a Specially
Serviced Mortgage Loan shall continue as such until such Mortgage Loan becomes a
Rehabilitated Mortgage Loan. The Master Servicer shall not be required to
initiate extraordinary collection procedures or legal proceedings with respect
to any Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement,
the Trustee will sign the Power of Attorney attached hereto as Exhibit S-1. The
Master Servicer, shall promptly notify the Trustee of the execution and delivery
of any document on behalf of the Trustee under such Power-of-Attorney. From time
to time until the termination of the Trust, upon receipt of written request of
the Master Servicer, the Trustee shall furnish the Master Servicer with any
additional powers of attorney and other documents necessary or appropriate to
enable the Master Servicer to service and administer the Mortgage Loans
including, without limitation, documents relating to the management, operation,
maintenance, repair, leasing or marketing of the Mortgaged Properties. The
Master Servicer shall indemnify the Trustee for any costs, liabilities and
expenses (including attorneys' fees) incurred by the Trustee in connection with
the intentional or negligent misuse of such power of attorney by the Master
Servicer.
(d) The Master Servicer shall make efforts consistent
with the Servicing Standard and the terms of this Agreement to collect all
payments called for under the terms and provisions of the applicable Mortgage
Loans (other than Specially Serviced Mortgage Loans or REO Properties).
(e) The Master Servicer shall segregate and hold all
funds collected and received pursuant to any Mortgage Loan constituting Escrow
Amounts separate and apart from any of its own funds and general assets and
shall establish and maintain one or more segregated custodial accounts (each, an
"Escrow Account") into which all Escrow Amounts shall be deposited within one
(1) Business Day after receipt and identification of the proper application of
such amounts. The Master Servicer shall also deposit into each Escrow Account
any amounts representing losses on Eligible Investments pursuant to the
immediately succeeding paragraph and any Insurance Proceeds or Liquidation
Proceeds which are required to be applied to the restoration or repair of any
Mortgaged Property pursuant to the related Mortgage Loan. Each Escrow Account
shall be maintained in accordance with the requirements of the related Mortgage
Loan and in accordance with the Servicing Standard. Withdrawals from an Escrow
Account may be made by the Master Servicer only:
(i) to effect timely payments of items constituting Escrow
Amounts for the related Mortgage Loan;
(ii) to transfer funds to the Certificate Account to
reimburse the Master Servicer for any Advance relating to Escrow Amounts, but
only from amounts received with respect to the related Mortgage Loan which
represent late collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the
related Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any
interest or investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Mortgagor under applicable law
or by the terms of the Mortgage Loan, or otherwise to the Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that
were not required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding sentence, (i) the Master
Servicer may direct any depository institution or trust company in which the
Escrow Accounts are maintained to invest the funds held therein in one or more
Eligible Investments; provided, however, that such funds shall be either (x)
immediately available or (y) available in accordance with a schedule which will
permit the Master Servicer to meet the payment obligations for which the Escrow
Account was established; (ii) the Master Servicer shall be entitled to all
income and gain realized from any such investment of funds as additional
servicing compensation; and (iii) the Master Servicer shall deposit from its own
funds in the applicable Escrow Account the amount of any loss incurred in
respect of any such investment of funds immediately upon the realization of such
loss. The Master Servicer shall not direct the investment of funds held in any
Escrow Account and retain the income and gain realized therefrom if the terms of
the related Mortgage Loan or applicable law permit the Mortgagor to be entitled
to the income and gain realized from the investment of funds deposited therein,
and the Master Servicer shall not be required to invest amounts on deposit in
Escrow Accounts in Eligible Investments or Eligible Accounts to the extent that
the Master Servicer is required by either law or under the terms of any related
Mortgage Loan to deposit or invest such amounts in another type of investments
or accounts. In the event the Master Servicer is not entitled to direct the
investment of such funds, (1) the Master Servicer shall direct the depository
institution or trust company in which such Escrow Accounts are maintained to
invest the funds held therein in accordance with the Mortgagor's written
investment instructions, if the terms of the related Mortgage Loan or applicable
law require the Master Servicer to invest such funds in accordance with the
Mortgagor's directions; and (2) in the absence of appropriate written
instructions from the Mortgagor, the Master Servicer shall have no obligation
to, but may be entitled to, direct the investment of such funds; provided,
however, that in either event (i) such funds shall be either (y) immediately
available or (z) available in accordance with a schedule which will permit the
Master Servicer to meet the payment obligations for which the Escrow Account was
established, and (ii) the Master Servicer shall have no liability for any loss
in investments of such funds that are invested pursuant to written instructions
from the Mortgagor.
(f) The relationship of each of the Master Servicer and
the Special Servicer to the Trustee and to each other under this Agreement is
intended by the parties to be that of an independent contractor and not of a
joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by
the terms of the related Mortgage Loan, any Lock-Box Agreement or similar
agreement, the Master Servicer shall establish and maintain, in accordance with
the Servicing Standard, one or more lock-box, cash management or similar
accounts ("Lock-Box Accounts") to be held outside the Trust and maintained by
the Master Servicer in accordance with the terms of the related Mortgage. Unless
there is a daily sweep into the Certificate Account with respect to such
Lock-Box Account, such Lock-Box Account is required to be an Eligible Account
(unless otherwise prevented from being an Eligible Account by the terms of the
related Mortgage Loan). The Master Servicer shall apply the funds deposited in
such accounts in accordance with terms of the related Mortgage, any Lock-Box
Agreement and in accordance with the Servicing Standard.
(h) The Master Servicer shall not permit defeasance of
any Mortgage Loan on or before the second anniversary of the Closing Date unless
such defeasance will not result in an Adverse REMIC Event and the Master
Servicer has received an opinion of counsel to such effect and all items in the
following sentence have been satisfied. Subsequent to the second anniversary of
the Closing Date, to the extent that the Master Servicer can, in accordance with
the related Mortgage Loan, require defeasance of any Mortgage Loan in lieu of
accepting a prepayment of principal thereunder, including a prepayment of
principal accompanied by a Prepayment Premium, if any, the Master Servicer
shall, to the extent it is not inconsistent with the Servicing Standard, require
such defeasance, provided that (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, (iii) either (A) the
related Mortgagor designates a Single-Purpose Entity (if the Mortgagor no longer
complies) to own the Defeasance Collateral or (B) the Master Servicer has
established for the benefit of the Trust a Single-Purpose Entity to hold all
Defeasance Collateral relating to the Defeasance Loans, and (iv) the Master
Servicer has requested and received from the Mortgagor (A) an opinion of counsel
generally to the effect that the Trustee will have a perfected, first priority
security interest in such Defeasance Collateral and (B) written confirmation
from a firm of independent accountants stating that payments made on such
Defeasance Collateral in accordance with the terms thereof will be sufficient to
pay the subject Mortgage Loan in full on or before its Maturity Date and to
timely pay each Scheduled Payment to be due prior thereto but after the
defeasance and (C) the Master Servicer has received Rating Agency Confirmation.
Any customary and reasonable out-of-pocket expense incurred by the Master
Servicer pursuant to this Section 8.3(h) shall be paid by the Mortgagor of the
Defeasance Loan pursuant to the related Mortgage, Mortgage Note or other
pertinent document, if so allowed by the terms of such documents.
(i) The Master Servicer shall, as to each Mortgage Loan
which is secured by the interest of the related Mortgagor under a ground lease,
promptly (and in any event within 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.
SECTION 8.4 SUB-SERVICING. The Master Servicer may appoint one
or more sub-servicers (each, a "Sub-Servicer") to perform all or any portion of
its duties hereunder for the benefit of the Trustee and the Certificateholders.
The Master Servicer shall supervise, administer, monitor, enforce and oversee
the servicing of the applicable Mortgage Loans by any Sub-Servicer appointed by
it. The terms of any arrangement or agreement between the Master Servicer and a
Sub-Servicer, shall provide that such agreement or arrangement may be
terminated, without cause and without the payment of any termination fees, by
the Trustee in the event such Master Servicer is terminated in accordance with
this Agreement. In addition, neither the Trustee nor the Certificateholders
shall have any direct obligation or liability (including, without limitation,
indemnification obligations) with respect to any Sub-Servicer. The Master
Servicer shall pay the costs of enforcement against any of its Sub-Servicers at
its own expense, but shall be reimbursed therefor only (i) from a general
recovery resulting from such enforcement only to the extent that such recovery
exceeds all amounts due in respect of the related Mortgage Loans or (ii) from a
specific recovery of costs, expenses or attorneys fees against the party against
whom such enforcement is directed. Notwithstanding the provisions of any
Sub-Servicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Master Servicer or a Sub-Servicer, or
reference to actions taken through a Sub-Servicer or otherwise, the Master
Servicer shall remain obligated and liable to the Trustee and the
Certificateholders for the servicing and administering of the applicable
Mortgage Loans in accordance with (and subject to the limitations contained
within) the provisions of this Agreement without diminution of such obligation
or liability by virtue of indemnification from a Sub-Servicer and to the same
extent and under the same terms and conditions as if the Master Servicer alone
were servicing and administering the Mortgage Loans.
SECTION 8.5 MASTER SERVICER MAY OWN CERTIFICATES. The Master
Servicer and any agent of the Master Servicer in its individual or any other
capacity may become the owner or pledgee of Certificates with the same rights it
would have if it were not the Master Servicer or such agent; provided, however,
that if the Master Servicer is Conning Asset Management Company, then the Master
Servicer may not purchase any Certificate for a price greater than such
Certificates' fair market value. Any such interest of the Master Servicer or
such agent in the Certificates shall not be taken into account when evaluating
whether actions of the Master Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions may
have the effect of benefiting the Class or Classes of Certificates owned by the
Master Servicer.
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE,
TAXES AND OTHER. Subject to the limitations set forth below, the Master Servicer
shall use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgage Loan (other than any REO
Mortgage Loan), and if the related Mortgagor does not so maintain, the Master
Servicer shall cause to be maintained with a Qualified Insurer, (A) a Standard
Hazard Insurance Policy which does not provide for reduction due to depreciation
in an amount that is at least equal to the lesser of (i) the full replacement
cost of improvements securing such Mortgage Loan or (ii) the outstanding
principal balance of such Mortgage Loan, but, in any event, in an amount
sufficient to avoid the application of any co-insurance clause and (B) any other
insurance coverage for a Mortgage Loan which the related Mortgagor is required
to maintain under the related Mortgage, provided the Master Servicer shall not
be required to maintain earthquake insurance on any Mortgaged Property unless
such insurance was required at origination and is available at commercially
reasonable rates; provided, however, that the Special Servicer shall have the
right, but not the duty, to obtain, at its own expense, earthquake insurance on
any Mortgaged Property.
Each Standard Hazard Insurance Policy maintained with respect
to any Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
Mortgaged Property is located in a designated special flood hazard area by the
Federal Emergency Management Agency in the Federal Register, as amended from
time to time (to the extent permitted under the related Mortgage Loan or as
required by law), the Master Servicer (with respect to any Mortgaged Property
that is not an REO Property) shall cause flood insurance to be maintained, but
only to the extent that the terms of such Mortgage Loan permit the Master
Servicer to require such coverage and maintenance of such coverage conforms to
the Servicing Standard. Such flood insurance shall be in an amount equal to the
lesser of (i) the unpaid principal balance of the related Mortgage Loan or (ii)
the maximum amount of such insurance available for the related Mortgaged
Property under the national flood insurance program, if the area in which such
Mortgaged Property is located is participating in such program. Any amounts
collected by the Master Servicer under any such policies (other than amounts to
be applied to the restoration or repair of the related Mortgaged Property or
property thus acquired or amounts released to the Mortgagor in accordance with
the terms of the applicable Mortgage Loan) shall be deposited in the Certificate
Account.
Any cost (such as insurance premiums and insurance broker fees
but not internal costs and expenses of obtaining such insurance) incurred by the
Master Servicer in maintaining any insurance pursuant to this Section 8.6 shall
not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Trustee for their benefit, be added to
the principal balance of the Mortgage Loan, notwithstanding that the terms of
the Mortgage Loan so permit. Such costs shall be paid as a Servicing Advance by
the Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, the Master
Servicer shall not be required in any event to maintain or obtain insurance
coverage beyond what is reasonably available at a cost customarily acceptable
and consistent with the Servicing Standard. The Master Servicer shall notify the
Trustee in the event it makes such determination.
The Master Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 8.6 either (i) if the
Master Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans serviced by it, it being understood and agreed that such policy
may contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by comparable servicers consistent with
the Servicing Standard, and provided that such policy is issued by a Qualified
Insurer or (ii) if the Master Servicer self-insures for its obligations as set
forth in the first paragraph of this Section 8.6, provided that its long-term
rating is not less than "AA" by S&P and "AA" by Fitch. In the event that the
Master Servicer shall cause any Mortgage Loan to be covered by such a master
force placed or blanket insurance policy, the incremental cost of such insurance
allocable to such Mortgage Loan (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgage Loan is then covered
thereby), if not borne by the related Mortgagor, shall be paid by the Master
Servicer as a Servicing Advance. If such policy contains a deductible clause,
the Master Servicer shall, if there shall not have been maintained on the
related Mortgaged Property a policy complying with this Section 8.6 and there
shall have been a loss that would have been covered by such policy, deposit in
the Certificate Account the amount not otherwise payable under such master force
placed or blanket insurance policy because of such deductible clause to the
extent that such deductible exceeds (i) the deductible under the related
Mortgage Loan or (ii) if there is no deductible limitation required under the
Mortgage Loan, the deductible amount with respect to insurance policies
generally available on properties similar to the related Mortgaged Property
which is consistent with the Servicing Standard, and deliver to the Trustee an
Officer's Certificate describing the calculation of such amount. In connection
with its activities as administrator and servicer of the Mortgage Loans, the
Master Servicer agrees to present, on its behalf and on behalf of the Trustee,
claims under any such master force placed or blanket insurance policy.
With respect to each Mortgage Loan, the Master Servicer shall
maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are or
may become a lien on the related Mortgaged Property and the status of insurance
premiums payable with respect thereto. From time to time, the Master Servicer
(other than with respect to REO Mortgage Loans) shall (i) obtain all bills for
the payment of such items (including renewal premiums), and (ii) effect payment
of all such bills, taxes and other assessments with respect to such Mortgaged
Properties prior to the applicable penalty or termination date, in each case
employing for such purpose Escrow Amounts as allowed under the terms of the
related Mortgage Loan, unless, with respect to the payment of taxes and
assessments, the Master Servicer reasonably anticipates that such bill will be
paid by the Mortgagor by the close of business on or before the delinquency
date, but in any event the Master Servicer shall make such advance within 90
days after such date or five Business Days after the Master Servicer has
received confirmation that such item has not been paid, whichever is earlier,
provided that during such 90-day period the Master Servicer shall use best
efforts consistent with the Servicing Standard to confirm whether such bill has
been paid. If a Mortgagor fails to make any such payment on a timely basis or
collections from the Mortgagor are insufficient to pay any such item before the
applicable penalty or termination date, the Master Servicer in accordance with
the Servicing Standard shall use its reasonable efforts to pay as a Servicing
Advance the amount necessary to effect the payment of any such item, subject to
Section 4.4 hereof. No costs incurred by the Master Servicer or the Trustee as
the case may be, in effecting the payment of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall, for the purpose of
calculating distributions to Certificateholders, be added to the principal
balance of the Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE AND DUE-ON-ENCUMBRANCE
CLAUSES; ASSUMPTION AGREEMENTS.
(a) In the event the Master Servicer receives a request
from a Mortgagor pursuant to the provisions of any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) that expressly permits, without mortgagee's
consent, the assignment of the related Mortgaged Property to, and assumption of
such Mortgage Loan by, another Person, the Master Servicer shall obtain relevant
information for purposes of evaluating such request. The Master Servicer shall
provide to the Special Servicer a copy of such request along with its
recommendation for processing such request and the materials upon which such
recommendation is based and (A) the Special Servicer shall have the right,
subject to the Servicing Standard, hereunder to grant or withhold consent to the
Master Servicer's recommendation for procedure for such assignment and
assumption in accordance with the terms of the Mortgage Loan and this Agreement,
and the Special Servicer shall not unreasonably withhold such consent and any
such decision of the Special Servicer shall be in accordance with the Servicing
Standard, (B) failure of the Special Servicer to notify the Master Servicer in
writing, within three Business Days following the Master Servicer's delivery of
the recommendation described above and the relevant loan information on which
the recommendation is based, of its determination to grant or withhold such
consent shall be deemed to constitute a grant of such consent and (C) the Master
Servicer shall not take any action with respect to such assignment or assumption
unless it has received the written consent of the Special Servicer or such
consent has been deemed to have been granted as described in the preceding
subclause (B). Upon consent or deemed consent by the Special Servicer to such
procedure of the Master Servicer, the Master Servicer shall process such request
of the related Mortgagor and shall be authorized to enter into an assignment and
assumption or substitution agreement with the Person to whom the related
Mortgaged Property has been or is proposed to be conveyed, and/or release the
original Mortgagor from liability under the related Mortgage Loan and substitute
as obligor thereunder the Person to whom the related Mortgaged Property has been
or is proposed to be conveyed; provided, however, that the Master Servicer shall
not enter into any such agreement to the extent that any terms thereof would
result in an Adverse REMIC Event or create any lien on a Mortgaged Property that
is senior to, or on parity with, the lien of the related Mortgage. To the extent
permitted by applicable law, the Master Servicer shall not enter into such an
assumption or substitution agreement unless the credit status of the prospective
new Mortgagor is in compliance with the Master Servicer's regular commercial
mortgage origination or servicing standards and criteria. The Master Servicer
shall notify the Trustee and the Special Servicer of any assignment and
assumption or substitution agreement executed pursuant to this Section 8.7(a).
The Master Servicer shall be entitled to (as additional servicing compensation)
50% of any assumption fee collected from a Mortgagor in connection with an
assignment and assumption or substitution executed pursuant to this Section
8.7(a) and the Special Servicer shall be entitled to (as additional special
servicing compensation) the other 50% of such fee. A Mortgage Loan will not be
considered a Specially Serviced Mortgage Loan solely due to any action taken by
the Special Servicer under this paragraph of Section 8.7(a). In addition, the
Special Servicer will not be entitled to any fee for any action it takes under
this paragraph of Section 8.7(a) other than as described in the previous
sentence.
In the event the Master Servicer receives notice from a
Mortgagor regarding the incurrence of additional indebtedness by such Mortgagor
pursuant to the provisions of any Mortgage Loan (other than a Specially Serviced
Mortgage Loan) that expressly permits additional indebtedness of the Mortgagor
without lender consent, whether secured or unsecured by the Mortgaged Property,
the Master Servicer shall obtain relevant information with respect to such
additional indebtedness. The Master Servicer shall provide to the Special
Servicer a copy of such request along with its recommendation for processing
such request and the materials upon which such recommendation is based and (A)
the Special Servicer shall have the right, subject to the Servicing Standard,
hereunder to grant or withhold consent to the Master Servicer's recommendation
for procedure for such additional encumbrance in accordance with the terms of
the Mortgage Loan and this Agreement, and the Special Servicer shall not
unreasonably withhold such consent and any such decision of the Special Servicer
shall be in accordance with the Servicing Standard, (B) failure of the Special
Servicer to notify the Master Servicer in writing, within three Business Days
following the Master Servicer's delivery of the recommendation described above
and the relevant loan information on which the recommendation is based, of its
determination to grant or withhold such consent shall be deemed to constitute a
grant of such consent and (C) the Master Servicer shall not take any action with
respect to such additional encumbrance unless it has received the written
consent of the Special Servicer or such consent has been deemed to have been
granted as described in the preceding subclause (B). Upon consent or deemed
consent by the Special Servicer to such procedure of the Master Servicer, the
Master Servicer shall process such request of the related Mortgagor and shall be
authorized to enter into additional agreements with respect to such additional
encumbrance, such as an intercreditor agreement; provided, however, that the
Master Servicer shall not enter into any agreement to the extent that any terms
thereof would result in an Adverse REMIC Event or create any lien on a Mortgaged
Property that is senior to, or on parity with, the lien of the related Mortgage.
The Master Servicer shall notify the Trustee and the Special Servicer of any
additional indebtedness of any Mortgagor. A Mortgage Loan will not be considered
a Specially Serviced Mortgage Loan solely due to any action taken by the Special
Servicer under this paragraph of Section 8.7(a). In addition, the Special
Servicer will not be entitled to any fee for any action it takes under this
paragraph of Section 8.7(a).
(b) Other than with respect to the assignment and
assumptions referred to in subsection (a) above, if any Mortgage Loan that is
not a Specially Serviced Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, (i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale of the related
Mortgaged Property, or (ii) provides that such Mortgage Loan may not be assumed
without the consent of the related mortgagee in connection with any such sale or
other transfer, then, the Master Servicer, on behalf of the Trust, shall, in
accordance with the Servicing Standard, either (i) enforce such due-on-sale
clause or (ii) if it believes such action would be in the best economic interest
of the Trust, waive the effect of such provision; provided, however, that if the
Principal Balance of such Mortgage Loan at such time equals or exceeds 2% of the
Aggregate Certificate Balance, but, in any case, at least $20 million (the
"Review Threshold"), then prior to waiving the effect of such provision, the
Master Servicer shall obtain Rating Agency Confirmation regarding such waiver;
provided further, but subject to the foregoing proviso, the Master Servicer
shall provide to the Special Servicer a copy of such request along with its
recommendation for processing such request and the materials upon which such
recommendation is based and (A) the Special Servicer shall have the right,
subject to the Servicing Standard, hereunder to grant or withhold consent to the
Master Servicer's recommendation for procedure for such assignment and
assumption in accordance with the terms of the Mortgage Loan and this Agreement,
and the Special Servicer shall not unreasonably withhold such consent and any
such decision of the Special Servicer shall be in accordance with the Servicing
Standard, (B) failure of the Special Servicer to notify the Master Servicer in
writing, within three Business Days following the Master Servicer's delivery of
the recommendation described above and the relevant loan information on which
the recommendation is based, of its determination to grant or withhold such
consent shall be deemed to constitute a grant of such consent and (C) the Master
Servicer shall not take any action with respect to such assignment or assumption
unless it has received the written consent of the Special Servicer or such
consent has been deemed to have been granted as described in the preceding
subclause (B). Subject to the prior sentence, the Master Servicer is authorized
to take or enter into an assignment and assumption agreement from or with the
Person to whom such Mortgaged Property has been or is about to be conveyed,
and/or to release the original Mortgagor from liability upon the Mortgage Loan
and substitute the new Mortgagor as obligor thereon; provided, that any such
assignment and assumption or substitution agreement shall contain no terms that
could result in an Adverse REMIC Event. To the extent permitted by law, the
Master Servicer shall enter into an assumption or substitution agreement only if
the credit status of the prospective new mortgagor and the underwriting of the
new mortgagor is in compliance with the Master Servicer's regular commercial
mortgage origination or servicing standards and criteria. The Master Servicer
shall promptly forward copies of the assignment and assumption documents
relating to any Mortgage Loan to the Special Servicer, the Trustee and the
Rating Agencies. The Master Servicer and the Special Servicer shall each be
entitled to (as additional special servicing compensation) 50% of any fee
collected from a Mortgagor in connection with the Master Servicer granting or
withholding such consent. A Mortgage Loan will not be considered a Specially
Serviced Mortgage Loan solely due to any action taken by the Special Servicer
under this paragraph of Section 8.7(b). In addition, the Special Servicer will
not be entitled to any fee for any action it takes under this paragraph of
Section 8.7(b) other than as described in the previous sentence.
If any Mortgage Loan that is not a Specially Serviced Mortgage
Loan contains a provision in the nature of a "due-on-encumbrance" clause that
(i) provides that such Mortgage Loan shall (or may at the mortgagee's option)
become due and payable upon the creation of any lien or other encumbrance on the
related Mortgaged Property, or (ii) requires the consent of the related
mortgagee to the creation of any such lien or other encumbrance on the related
Mortgaged Property, then, the Master Servicer, on behalf of the Trust, shall, in
accordance with the Servicing Standard, either (i) enforce such
due-on-encumbrance clause or (ii) if it believes such action would be in the
best economic interest of the Trust, waive the effect of such provision;
provided, however, that prior to waiving the effect of such provision, the
Master Servicer shall obtain Rating Agency Confirmation regarding such waiver;
provided, further, but subject to the foregoing proviso, that the Master
Servicer shall provide to the Special Servicer a copy of such request along with
its recommendation for processing such request and the materials upon which such
recommendation is based and (A) the Special Servicer shall have the right,
subject to the Servicing Standard, hereunder to grant or withhold consent to the
Master Servicer's recommendation for procedure for such additional encumbrance
in accordance with the terms of the Mortgage Loan and this Agreement, and the
Special Servicer shall not unreasonably withhold such consent and any such
decision of the Special Servicer shall be in accordance with the Servicing
Standard, (B) failure of the Special Servicer to notify the Master Servicer in
writing, within three Business Days following the Master Servicer's delivery of
the recommendation described above and the relevant loan information on which
the recommendation is based, of its determination to grant or withhold such
consent shall be deemed to constitute a grant of such consent and (C) the Master
Servicer shall not take any action with respect to such additional encumbrance
unless it has received the written consent of the Special Servicer or such
consent has been deemed to have been granted as described in the preceding
subclause (B). The Master Servicer is also authorized to take or enter into
agreements relating to the additional encumbrance, including any intercreditor
agreement relating to such additional indebtedness; provided, that any such
agreements shall contain no terms that could result in an Adverse REMIC Event.
The Master Servicer shall promptly forward copies of the documents relating to
any additional encumbrance to the Special Servicer, the Trustee and the Rating
Agencies. The Master Servicer and the Special Servicer shall each be entitled to
(as additional servicing compensation) 50% of any fee collected from a Mortgagor
in connection with the Master Servicer granting or withholding such consent. A
Mortgage Loan will not be considered a Specially Serviced Mortgage Loan solely
due to any action taken by the Special Servicer under this paragraph of Section
8.7(b). In addition, the Special Servicer will not be entitled to any fee for
any action it takes under this paragraph of Section 8.7(b) other than as
described in the previous sentence.
(c) The Master Servicer shall have the right to consent
to any transfers of interest of a Mortgagor, to the extent such transfer is
allowed under the terms of the related Mortgage Loan, including any consent to
transfer to any subsidiary or affiliate of Mortgagor or to a person acquiring
less than a majority interest in the Mortgagor. The Master Servicer shall be
entitled to collect and receive from Mortgagors any customary fees in connection
with such transfers of interest as additional servicing compensation.
(d) The Trustee for the benefit of the Certificateholders
shall execute any necessary instruments in the form presented to it by the
Master Servicer (pursuant to subsection (a) or (b)) for such assignments and
assumptions agreements. Upon the closing of the transactions contemplated by
such documents, the Master Servicer shall cause the originals of the assignment
and assumption agreement, the release (if any), or the modification or
supplement to the Mortgage Loan to be delivered to the Trustee except to the
extent such documents have been submitted to the recording office, in which
event the Master Servicer shall promptly deliver copies of such documents to the
Trustee and the Special Servicer.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE
FILES. Upon the payment in full of any Mortgage Loan, satisfaction or discharge
in full of any Specially Serviced Mortgage Loan or the receipt by the Master
Servicer of a notification that payment in full (or such payment, if any, in
connection with the satisfaction and discharge in full of any Specially Serviced
Mortgage Loan) will be escrowed in a manner customary for such purposes, and
upon notification by the Master Servicer in the form of a certification (which
certification shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the Certificate Account have been or will be so deposited) of a
Servicing Officer and a request for release of the Trustee Mortgage File in the
form of Exhibit C hereto the Trustee shall promptly release the related Trustee
Mortgage File to the Master Servicer and the Trustee shall execute and deliver
to the Master Servicer the deed of reconveyance or release, satisfaction or
assignment of mortgage or such instrument releasing the lien of the Mortgage, as
directed by the Master Servicer together with the Mortgage Note with written
evidence of cancellation thereon. The provisions of the immediately preceding
sentence shall not, in any manner, limit or impair the right of the Master
Servicer to execute and deliver, on behalf of the Trustee, the
Certificateholders or any of them, any and all instruments of satisfaction,
cancellation or assignment without recourse, representation or warranty, or of
partial or full release or discharge and all other comparable instruments, with
respect to the Mortgage Loans, and with respect to the Mortgaged Properties held
for the benefit of the Certificateholders. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Distribution Account but shall be paid by the Master Servicer except to
the extent that such expenses are paid by the related Mortgagor in a manner
consistent with the terms of the related Mortgage and applicable law. From time
to time and as shall be appropriate for the servicing of any Mortgage Loan,
including for such purpose, collection under any policy of flood insurance, any
Servicer Fidelity Bond or Errors or Omissions Policy, or for the purposes of
effecting a partial or total release of any Mortgaged Property from the lien of
the Mortgage or the making of any corrections to the Mortgage Note or the
Mortgage or any of the other documents included in the Trustee Mortgage File,
the Trustee shall, upon request of the Master Servicer and the delivery to the
Trustee of a Request for Release signed by a Servicing Officer, in the form of
Exhibit C hereto, release the Trustee Mortgage File to the Master Servicer or
the Special Servicer, as the case may be.
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER SERVICER TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE
CERTIFICATEHOLDERS. Notwithstanding any other provisions of this Agreement, the
Master Servicer shall transmit to the Trustee, to the extent required by this
Agreement, all documents and instruments coming into the possession of the
Master Servicer from time to time and shall account fully to the Trustee for any
funds received or otherwise collected thereby, including Liquidation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Servicer Mortgage Files
and funds collected or held by, or under the control of, the Master Servicer in
respect of any Mortgage Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds or Insurance Proceeds, including
any funds on deposit in the Certificate Account, shall be held by the Master
Servicer for and on behalf of the Trustee and the Certificateholders and shall
be and remain the sole and exclusive property of the Trustee, subject to the
applicable provisions of this Agreement. The Master Servicer agrees that it
shall not create, incur or subject any Servicer Mortgage Files or Trustee
Mortgage File or any funds that are deposited in the Certificate Account or any
Escrow Account, or any funds that otherwise are or may become due or payable to
the Trustee, to any claim, lien, security interest, judgment, levy, writ of
attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of setoff against any Servicer Mortgage Files or Trustee Mortgage
File or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that the Master Servicer shall be entitled to receive from any such
funds any amounts that are properly due and payable to the Master Servicer under
this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the
Master Servicer shall be entitled to the Servicing Fee and the Excess Servicing
Fee, which shall be payable by the Trust from amounts held in the Certificate
Account or otherwise collected from the Mortgage Loans as provided in Section
5.2. The Excess Servicing Fee is payable to Conning Asset Management Company and
is non-terminable and freely assignable.
(b) Additional servicing compensation in the form of
assumption fees, extension fees, default interest payable at a rate above the
Mortgage Rate (net of Advance Interest), Modification Fees, forbearance fees,
Late Fees (net of Advance Interest) or other usual and customary charges and
fees actually received from Mortgagors shall be retained by the Master Servicer;
provided, that the Master Servicer shall be entitled to (i) receive 50% of the
assumption fees collected on Mortgage Loans as provided in Section 8.7, (ii)
Modification Fees as provided in Section 8.18 hereof; and (iii) 100% of any
extension fees collected from the related Mortgagor in connection with the
extension of the Maturity Date of any Mortgage Loan as provided in Section 8.18;
provided, however, that the Master Servicer shall not be entitled to any such
fees in connection with any Specially Serviced Mortgage Loans. If the Master
Servicer collects any amount payable to the Special Servicer hereunder in
connection with a REO Mortgage Loan or Specially Serviced Mortgage Loan, the
Master Servicer shall promptly remit such amount to the Special Servicer as
provided in Section 5.2. The Master Servicer shall be required to pay all
applicable expenses incurred by it in connection with its servicing activities
hereunder.
(c) Notwithstanding any other provision herein, the
Servicing Fee for each monthly period relating to each Determination Date shall
be reduced by an amount equal to the Compensating Interest Payment (if any)
relating to Mortgage Loans which are not Specially Serviced Mortgage Loans for
such Determination Date.
(d) The Master Servicer shall also be entitled to
additional servicing compensation of (i) an amount equal to the excess, if any,
of the aggregate Prepayment Interest Excess relating to Mortgage Loans which are
not Specially Serviced Mortgage Loans for each Distribution Date over the
aggregate Prepayment Interest Shortfalls for such Mortgage Loans for such
Distribution Date, (ii) interest or other income earned on deposits in the
Certificate Account (but only to the extent of the net investment earnings, if
any, with respect to each such account), and, (iii) to the extent not required
to be paid to any Mortgagor under applicable law, any interest or other income
earned on deposits in the Escrow Accounts.
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) For each Distribution Date, (i) the Master Servicer
shall deliver to the Trustee, no later than the related Report Date, the Master
Servicer Remittance Report with respect to such Distribution Date and (ii) the
Master Servicer shall deliver to the Trustee at or before the related Advance
Report Date, the amount of the P&I Advance to be made by the Master Servicer on
the related Master Servicer Remittance Date. The Special Servicer is required to
provide all information relating to Specially Serviced Mortgage Loans in order
for the Master Servicer to satisfy its duties in this Section 8.11.
(b) The Master Servicer shall deliver to the Trustee and
the Special Servicer within 30 days following each Distribution Date a statement
setting forth the status of the Certificate Account as of the close of business
on such Distribution Date showing, for the period covered by such statement, the
aggregate of deposits in or withdrawals from the Certificate Account.
(c) The Master Servicer shall promptly inform the Special
Servicer of the name, account number, location and other necessary information
concerning the Certificate Account in order to permit the Special Servicer to
make deposits therein.
(d) The Master Servicer shall deliver to the Rating
Agencies, the Trustee, the Special Servicer and the Depositor within 30 days
after receipt any annual, monthly or quarterly financial statements the Master
Servicer receives from any Mortgagor relating to the Mortgage Loans. Except as
provided in Section 8.14, the Master Servicer shall have no duty to conform or
normalize any of the data or information contained in such statements.
(e) The Master Servicer shall deliver a copy of any
reports or information delivered to the Trustee pursuant to subsection (a) or
subsection (b) of this Section 8.11 to the Depositor, the Special Servicer and
each Rating Agency, in each case upon request by such Person and only to the
extent such reports and information are not otherwise required to be delivered
to such Person under any provision of this Agreement.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. The Master
Servicer shall deliver to the Depositor and the Trustee on or before March 15
each year, commencing in March 2000, an Officer's Certificate stating, as to the
signer thereof, that (A) a review of the activities of the Master Servicer
during the preceding calendar year or portion thereof and of the performance of
the Master Servicer under this Agreement has been made under such officer's
supervision and (B) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement in all material respects throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof. The Master Servicer
shall forward a copy of each such statement to the Rating Agencies.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
REPORT. On or before March 15 of each year, beginning with March 15, 2000, the
Master Servicer at its expense shall cause a nationally recognized firm of
Independent public accountants (who may also render other services to the Master
Servicer) to furnish to the Trustee, the Depositor and each Rating Agency a
statement to the effect that such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans under this Agreement or
the servicing of mortgage loans similar to the Mortgage Loans under
substantially similar agreements for the preceding 12 months and that the
assertion of management of the Master Servicer that it maintained an effective
internal control system over the servicing of such mortgage loans is fairly
stated in all material respects, based upon an examination conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers ("USAP") or the Audit Program for Mortgages serviced for FHLMC
(the "FHLMC Audit Program"), which statement meets the standards applicable to
accountant's reports intended for general distribution; provided that the Master
Servicer shall not be required to cause the delivery of such statement until
April 15 in any given year so long as it has received written confirmation form
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 8.14 ANNUAL REPORTS REGARDING THE MORTGAGED
PROPERTIES. Not later than the Report Date occurring in March of each year,
beginning in March 2000, the Master Servicer shall deliver to the Trustee, the
Placement Agent, the Underwriters, the Rating Agencies, any Operating Adviser
and the Depositor an Annual Report for each Mortgage Loan, based on the most
recently available year-end financial statements and most recently available
rent rolls of each applicable Mortgagor (to the extent provided to the Master
Servicer by or on behalf of each Mortgagor, or, in the case of Specially
Serviced Mortgaged Loans, as provided to the Special Servicer, which Special
Servicer shall forward such information to the Master Servicer on or before
April 15 of each such year), containing such information and analyses for each
Mortgage Loan as would customarily be included in accordance with the Servicing
Standard including, without limitation, Debt Service Coverage Ratios and income.
In addition, upon request the Master Servicer shall make available to the
Special Servicer and the Trustee, within 30 days following receipt thereof by
the Master Servicer, copies of any operating statements and rent rolls collected
with respect to the Mortgaged Properties. As and to the extent reasonably
requested by the Special Servicer, the Master Servicer shall make inquiry of any
Mortgagor with respect to such information or as regards the performance of the
related Mortgage Property in general. The Trustee shall provide or make
available either electronically or, if requested by a Certificateholder or
Certificate Owner in writing, by first class mail at no cost to such
Certificateholder or Certificate Owner, of such Annual Reports pursuant to
Section 5.4(a).
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF
THE TRUSTEE AND THE MASTER SERVICER.
(a) Subject to paragraph (c) below, the Trustee shall
make available at its corporate trust offices during normal business hours, upon
reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, the Placement Agent, any Underwriter, each Rating Agency or
the Depositor, originals or copies of, among other things, the following items:
(i) this Agreement and any amendments thereto, (ii) all final and released
Annual Reports and Master Servicer Remittance Reports delivered to the Trustee,
(iii) all Officer's Certificates (including Officer's Certificates evidencing
any determination of Nonrecoverable Advances) delivered to the Trustee since the
Closing Date, (iv) all accountants' reports delivered to the Trustee since the
Closing Date, (v) the most recent property Inspection Reports in the possession
of the Trustee in respect of each Mortgaged Property, (vi) the most recent
Mortgaged Property annual operating statement and rent roll, if any, collected
by or on behalf of the Master Servicer or the Special Servicer and delivered to
the Trustee, (vii) any and all modifications, waivers and amendments of the
terms of a Mortgage Loan entered into by the Master Servicer and/or the Special
Servicer and delivered to the Trustee, and (viii) any and all Officers'
Certificates (and attachments thereto) delivered to the Trustee to support the
Master Servicer's determination that any Advance was not or, if made, would not
be, recoverable. The Trustee will be permitted to require payment of a sum to be
paid by the requesting party (other than the Rating Agencies, the Trustee,
Placement Agent or Underwriters) sufficient to cover the reasonable costs and
expenses of making such information available and the cost of providing copies.
(b) Subject to the restrictions described below, the
Master Servicer shall afford the Rating Agencies, the Depositor, the Trustee,
the Special Servicer, the Placement Agent, the Underwriters, the Operating
Adviser, any Certificateholder or Certificate Owner, upon reasonable notice and
during normal business hours, reasonable access to any additional relevant,
non-attorney-client-privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all accounts, insurance policies and
other relevant matters relating to this Agreement not listed in Section 8.15(a),
and access to Servicing Officers of the Master Servicer responsible for its
obligations hereunder. Copies of information or access will be provided to
Certificateholders and each Certificate Owner providing satisfactory evidence of
ownership of Certificates or beneficial ownership of a Certificate, as the case
may be. Copies (or computer diskettes or other digital or electronic copies of
such information if reasonably available in lieu of paper copies) of any and all
of the foregoing items shall be made available by the Master Servicer upon
request; provided, however, that the Master Servicer shall be permitted to
require payment by the requesting party (other than the Depositor, the Trustee,
the Special Servicer, the Placement Agent, the Underwriters, or any Rating
Agency) of a sum sufficient to cover the reasonable expenses actually incurred
by the Master Servicer of providing access or copies (including electronic or
digital copies) of any such information requested in accordance with the
preceding sentence.
(c) Nothing herein shall be deemed to require the Trustee
or Master Servicer to confirm, represent or warrant the accuracy of (or to be
liable or responsible for) any other Person's information or report, included in
any communication from the Special Servicer or Mortgagor. Notwithstanding the
above, the Trustee and Master Servicer shall not have any liability to the
Depositor, the Trustee, the Special Servicer, any Certificateholder, any
Certificate Owner, the Placement Agent, the Underwriters, any Rating Agency or
any other Person to whom it delivers information pursuant to this Section 8.15
or any other provision of this Agreement for federal, state or other applicable
securities law violations relating to the disclosure of such information. In the
event any Person brings any claims relating to or arising from the foregoing
against the Master Servicer or the Trustee (or any employee, attorney, officer,
director or agent thereof), the Trust (from amounts held in any account or
otherwise) shall hold harmless and indemnify the Master Servicer or the Trustee
from any loss or expense (including attorney fees) relating to or arising from
such claims.
(d) The Master Servicer shall produce the reports
required of it under this Agreement; provided, however, that the Master Servicer
shall not be required to produce any ad hoc non-standard written reports with
respect to such Mortgage Loans. In the event the Master Servicer elects to
provide such non-standard reports, it may require the Person requesting such
report (other than a Rating Agency) to pay a reasonable fee to cover the costs
of the preparation thereof. Notwithstanding anything to the contrary herein, as
a condition to the Master Servicer making any report or information available
upon request to any Person other than the parties hereto, the Master Servicer
may require that the recipient of such information acknowledge that the Master
Servicer may contemporaneously provide such information to the Depositor, the
Trustee, the Special Servicer, the Placement Agent, the Underwriters, any Rating
Agency and/or the Certificateholders or Certificate Owners. Any transmittal of
information by the Master Servicer to any Person other than the Trustee, the
Master Servicer, the Special Servicer, the Rating Agencies or the Depositor may
be accompanied by a letter from the Master Servicer containing the following
provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws restrict any person
who possesses material, non-public information regarding the Trust which issued
Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 1999-CAM1 from purchasing or selling such Certificates in circumstances
where the other party to the transaction is not also in possession of such
information. You also acknowledge and agree that such information is being
provided to you for the purpose of, and such information may be used only in
connection with, evaluation by you or another Certificateholder, Certificate
Owner or prospective purchaser of such Certificates or beneficial interest
therein."
(e) The Master Servicer may, at its discretion, make
available by electronic media and bulletin board service certain information and
may make available by electronic media or bulletin board service (in addition to
making such information available as provided herein) any reports or information
required by this Agreement that the Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) The Master Servicer shall cooperate in providing the
Rating Agencies with such other pertinent information relating to the Mortgage
Loans as is or should be in its possession as the Rating Agencies may reasonably
request.
SECTION 8.16 RULE 144A INFORMATION. For so long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the Securities Act, the Master Servicer agrees to provide to the Trustee for
delivery to any Holder thereof, any Certificate Owner therein and to any
prospective purchaser of the Certificates or beneficial interest therein
reasonably designated by the Trustee, upon the request of such
Certificateholder, such Certificate Owner or the Trustee, subject to this
Section 8.16 and the provisions of Section 8.15, any information prepared by the
Master Servicer that is required to be provided to such holder or prospective
purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the
Securities Act, including, without limitation, copies of the reports and
information described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section
8.16 shall agree that such information shall not be disclosed or used for any
purpose other than the evaluation of the Certificates by such Person and the
Master Servicer shall be permitted to use the letter referred to in Section
8.15(d). Unless the Master Servicer chooses to deliver the information directly,
the Depositor, the Placement Agent or the Underwriters shall be responsible for
the physical delivery of the information requested pursuant to this Section
8.16. As a condition to the Master Servicer making any report or information
available upon request to any Person other than the parties hereto, the Master
Servicer may require that the recipient of such information acknowledge that the
Master Servicer may contemporaneously provide such information to the Depositor,
the Trustee, the Placement Agent, the Underwriters, any Rating Agency and/or the
Certificateholders and Certificate Owners. The Master Servicer will be permitted
to require payment of a sum to be paid by the requesting party (other than the
Rating Agencies, the Trustee, the Placement Agent or Underwriters) sufficient to
cover the reasonable costs and expenses of making such information available.
SECTION 8.17 INSPECTIONS. The Master Servicer shall, at its
own expense, inspect or cause to be inspected each Mortgaged Property other than
Mortgaged Properties related to Specially Serviced Mortgage Loans, every
calendar year beginning in 2000, or every second calendar year beginning in 2000
if the principal balance of the related Mortgage Loan is under $2 million. In
addition, the Special Servicer shall, at its own expense, inspect or cause to be
inspected each Mortgaged Property related to a Mortgage Loan that is delinquent
for sixty (60) days in the payment of any amounts due under such Mortgage Loan.
The Master Servicer shall prepare an Inspection Report relating to each
inspection. The Master Servicer shall promptly forward the applicable Inspection
Report to the Rating Agencies, the Placement Agent, the Underwriters, the
Depositor, the Trustee and the Special Servicer. The Special Servicer shall have
the right to inspect or cause to be inspected (at its own expense) every
calendar year any Mortgaged Property related to a Mortgage Loan that is not a
Specially Serviced Mortgage Loan, provided that the Special Servicer notifies
the Master Servicer prior to such inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS
AND CONSENTS.
Subject to the limitations of Section 8.7 and Section 12.3
hereof, the Master Servicer shall have the following powers:
(a) (i) The Master Servicer in accordance with the
Servicing Standard may agree to any modification, waiver, amendment or consent
of or relating to any term other than a Money Term of a Mortgage Loan that is
not a Specially Serviced Mortgage Loan, provided that such amendment would not
result in an Adverse REMIC Event; provided, further, that if any consent relates
to a release of a letter of credit relating to any Mortgage Loan, then (A) the
Master Servicer shall notify the Special Servicer of any Mortgagor's request to
release such letter of credit which the Master Servicer recommends to release,
and (B) if the terms of the related Mortgage Loan do not require the Master
Servicer to approve such release, then the Special Servicer shall within five
days provide notice to the Master Servicer on whether the Master Servicer should
approve the release and the failure of the Special Servicer to give the Master
Servicer such notice shall automatically be deemed to be an approval by the
Special Servicer that the Master Servicer should grant such release.
Notwithstanding the preceding sentence, if any such proposed modification,
waiver, amendment or consent is deemed material by the Master Servicer in its
reasonable discretion and the Master Servicer recommends to approve such
modification, waiver, amendment or consent, the Master Servicer shall provide to
the Special Servicer a copy of the Master Servicer's recommendation and the
relevant information obtained or prepared by the Master Servicer in connection
therewith and (A) the Special Servicer shall have the right hereunder to grant
or withhold consent to any such proposed modification, waiver, amendment or
consent, and such consent of the Special Servicer shall not be unreasonably
withheld, consistent with the Servicing Standard, (B) failure of the Special
Servicer to notify the Master Servicer, within three Business Days following the
Master Servicer's delivery of the recommendation described above, of its
determination to grant or withhold such consent shall be deemed to constitute a
grant of such consent and (C) the Master Servicer shall not enter into any such
proposed modification, waiver, amendment or consent unless it has received the
written consent of the Special Servicer or such consent has been deemed to have
been granted as described in clause (B) above. In any event, the Master Servicer
shall promptly notify the Special Servicer of any material modification, waiver,
amendment or consent executed by the Master Servicer pursuant to this Section
8.18(a)(i) and provide to the Special Servicer a copy thereof. In the event that
the Special Servicer is required to give consent to a modification, waiver,
amendment or consent, the Master Servicer shall be entitled to (as additional
servicing compensation) 50% of any Modification Fee collected from a Mortgagor
in connection with an assignment and assumption or substitution executed
pursuant to this Section 8.18(a)(i) and the Special Servicer shall be entitled
to (as additional special servicing compensation) the other 50% of such fee. In
all other circumstances, the Master Servicer shall be entitled to 100% of the
Modification Fee. A Mortgage Loan will not be considered a Specially Serviced
Mortgage Loan solely due to any action taken by the Special Servicer under this
Section 8.18(a)(i). In addition, the Special Servicer will not be entitled to
any fee for any action it takes under this Section 8.18(a)(i) other than as
described in this paragraph.
(ii) The Master Servicer may, in accordance with the
Servicing Standard, without the consent of the Special Servicer, extend the
maturity date of any Balloon Mortgage Loan that is not a Specially Serviced
Mortgage Loan to a date that is not more than 60 days following the original
Maturity Date, if in the Master Servicer's sole judgment exercised in good faith
(and evidenced by an Officer's Certificate), a default in the payment of the
Balloon Payment is reasonably foreseeable and such extension is reasonably
likely to produce a greater recovery on a net present value basis than
liquidation of such Mortgage Loan. The Master Servicer shall process all such
extensions and shall be entitled to (as additional servicing compensation) 100%
of any extension fees collected from a Mortgagor with respect to any such
extension.
(b) The Master Servicer may require, in its discretion in
accordance with the Servicing Standard, as a condition to granting any request
by a Mortgagor for any consent, modification, waiver or amendment, that such
Mortgagor pay to the Master Servicer a reasonable and customary modification fee
to the extent permitted by law. The Master Servicer may charge the Mortgagor for
any costs and expenses (including attorney's fees) incurred by the Master
Servicer in connection with any request for a modification, waiver or amendment.
The failure or inability of the Mortgagor to pay any such costs and expenses
shall not impair the right of the Master Servicer to cause such costs and
expenses, and interest thereon at the Advance Rate, to be paid or reimbursed by
the Trust as a Servicing Advance (to the extent not paid by the Mortgagor).
(c) The Master Servicer shall notify the Trustee of any
modification, waiver or amendment of any term of any Mortgage Loan permitted by
it under this Section and the date thereof, and shall deliver to the Trustee for
deposit in the related Mortgage File, an original counterpart of the agreement
relating to such modification, waiver or amendment, promptly following the
execution thereof except to the extent such documents have been submitted to the
applicable recording office, in which event the Master Servicer shall promptly
deliver copies of such documents to the Trustee. The Master Servicer shall not
agree to any modification, waiver, or amendment of any Money Term of a Mortgage
Loan or any term of a Specially Serviced Mortgage Loan.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Master Servicer shall send a written notice to
the Special Servicer, the Rating Agencies and the Trustee within two Business
Days after becoming aware of a Servicing Transfer Event with respect to a
Mortgage Loan, which notice shall identify the related Mortgage Loan and set
forth in reasonable detail the nature and relevant facts of such Servicing
Transfer Event and, except for the Rating Agencies and the Trustee, shall be
accompanied by a copy of the Servicer Mortgage File.
(b) Prior to the transfer of the servicing of any
Specially Serviced Mortgage Loan to the Special Servicer, the Master Servicer
shall notify the related Mortgagor of such transfer in accordance with the
Servicing Standard (the form and substance of such notice shall be reasonably
satisfactory to the Special Servicer).
(c) Any calculations or reports prepared by the Master
Servicer to the extent they relate to Specially Serviced Mortgage Loans shall be
based on information supplied to the Master Servicer in writing by the Special
Servicer as provided hereby. The Master Servicer shall have no duty to
investigate or confirm the accuracy of any information provided to it by the
Special Servicer and shall have no liability for the inaccuracy of any of its
reports due to the inaccuracy of the information provided by the Special
Servicer.
(d) On or prior to each Distribution Date, the Master
Servicer shall provide to the Special Servicer, in order for the Special
Servicer to comply with its obligations under this Agreement, such information
(and in the form and medium) as the Special Servicer may reasonably request in
writing from time to time, provided that (i) the Master Servicer shall not be
required to produce any ad hoc reports or incur any unusual expense or effort in
connection therewith and (ii) if the Master Servicer elects to provide such ad
hoc reports, it may require the Special Servicer to pay a reasonable fee to
cover the costs of the preparation thereof.
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
MASTER SERVICER.
(a) The Master Servicer hereby represents and warrants to
and covenants with the Trustee, as of the date hereof:
(i) the Master Servicer is duly organized, validly existing
and in good standing as a corporation under the laws of Missouri, and shall be
and thereafter remain, in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its obligations
under this Agreement, except where the failure to so qualify or comply would not
adversely affect the Master Servicer's ability to perform its obligations
hereunder in accordance with the terms of this Agreement;
(ii) the Master Servicer has the full power and authority
to execute, deliver, perform, and to enter into and consummate all transactions
and obligations contemplated by this Agreement. The Master Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement has been duly executed and delivered by the Master Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee and the Special Servicer, evidences the valid and
binding obligation of the Master Servicer enforceable against the Master
Servicer in accordance with its terms subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium, receivership and
other similar laws affecting creditors' rights generally as from time to time in
effect, and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its articles of incorporation or by-laws
or (2) conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement or
instrument to which it is a party or by which it may be bound, or any law,
governmental rule, regulation, or judgment, decree or order applicable to it of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which breach, conflict, violation, acceleration or default
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to the Master Servicer's
knowledge, threatened, against it, that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the same or will
obtain the same prior to the time necessary to perform its obligations under
this Agreement, except to the extent that its failure to be qualified as a
foreign corporation or licensed in one or more states is not necessary for the
performance by it of its obligations hereunder;
(vi) the performance of the services by the Master Servicer
contemplated by this Agreement are in the ordinary course of business of the
Master Servicer;
(vii) any Sub-Servicing Agreement entered into by the
Master Servicer with any Sub-Servicer is and will be in compliance with this
Article VIII; and
(viii) the Servicer Fidelity Bond or Servicer Errors and
Omissions Insurance Policy described in Section 8.2 is in place as of the date
of this Agreement (or the Master Servicer self-insures in a manner consistent
with Section 8.2 of this Agreement).
(b) It is understood that the representations and
warranties set forth in this Section 8.20 shall survive the execution and
delivery of this Agreement.
(c) Any cause of action against the Master Servicer
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by any of the Trustee or the
Master Servicer. The Master Servicer shall give prompt notice to the Trustee,
the Depositor and the Special Servicer of the occurrence, or the failure to
occur, of any event that, with notice or the passage of time or both, would
cause any representation or warranty in this Section to be untrue or inaccurate
in any respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which
the Master Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Master Servicer shall be a party, or any Person succeeding to substantially all
of the servicing business of the Master Servicer, shall be the successor of the
Master Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto; provided, however, that
each of the Rating Agencies provides a Rating Agency Confirmation. If the
conditions to the provisions in the foregoing sentence are not met, the Trustee
may terminate the Master Servicer's servicing of the Mortgage Loans pursuant
hereto, such termination to be effected in the manner set forth in Sections 8.28
and 8.29.
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(B)
hereof, the Master Servicer shall not resign from the obligations and duties
hereby imposed on it unless it determines that the Master Servicer's 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.
Any such determination permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee at
the expense of the Master Servicer. No such resignation shall become effective
until a successor servicer designated by the Trustee, with the consent of the
Depositor, shall have assumed the Master Servicer's responsibilities and
obligations under this Agreement and Rating Agency Confirmation shall have been
obtained. Notice of such resignation shall be given promptly by the Master
Servicer to the Trustee.
(b) The Master Servicer may resign from the obligations
and duties imposed on it, upon 30 days notice to the Trustee, provided that (i)
a successor servicer (x) is available, (y) has assets of at least $15,000,000
and (z) is willing to assume the obligations, responsibilities, and covenants to
be performed hereunder by the Master Servicer on substantially the same terms
and conditions, and for not more than equivalent compensation to that herein
provided; (ii) the Master Servicer bears all costs associated with its
resignation and the transfer of servicing; and (iii) Rating Agency Confirmation
is obtained with respect to such servicing transfer, as evidenced by a letter
delivered to the Trustee by each Rating Agency.
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER
SERVICER. The Master Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of the Master Servicer or Sub-Servicers
(as provided in Section 8.4) to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Master Servicer hereunder or
(B) assign and delegate all of its duties hereunder; provided, however, that
with respect to clause (B), (i) the Master Servicer gives the Depositor, the
Special Servicer and the Trustee notice of such assignment and delegation; (ii)
such purchaser or transferee accepting such assignment and delegation executes
and delivers to the Depositor and the Trustee an agreement accepting such
assignment, which contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Master Servicer,
with like effect as if originally named as a party to this Agreement; (iii) the
purchaser or transferee has assets in excess of $15,000,000; (iv) such
assignment and delegation is the subject of a Rating Agency Confirmation; and
(v) the Depositor consents to such assignment and delegation, such consent not
to be unreasonably withheld. In the case of any such assignment and delegation
in accordance with the requirements of subclause (B) (but not any such
assignment or delegation pursuant to clause (A) above) of this Section, the
Master Servicer shall be released from its obligations under this Agreement,
except that the Master Servicer shall remain liable for all liabilities and
obligations incurred by it as the Master Servicer hereunder prior to the
satisfaction of the conditions to such assignment set forth in the preceding
sentence. Notwithstanding the above, the Master Servicer may appoint
Sub-Servicers in accordance with Section 8.4 hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER
AND OTHERS.
(a) Neither the Master Servicer nor any of the directors,
officers, employees or agents of the Master Servicer shall be under any
liability to the holders of the Certificates, the Depositor, the Trustee, the
Placement Agent, the Underwriters or the Special Servicer for any action taken
or for refraining from the taking of any action in good faith, or using
reasonable business judgment, consistent with the Servicing Standard; provided
that this provision shall not protect the Master Servicer or any such person
against any breach of a representation or warranty contained herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in its performance of duties under the Agreement or by
reason of negligent disregard of obligations and duties hereunder. The Master
Servicer and any director, officer, employee or agent of the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person (including, without limitation, the Special Servicer)
respecting any matters arising hereunder. The Master Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement; provided that the Master Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders and the Trustee in the
Mortgage Loans (subject to the Special Servicer's servicing of Specially
Serviced Mortgage Loans as contemplated herein), or shall undertake any such
action if instructed to do so by the Trustee. In such event, all legal expenses
and costs of such action shall be expenses and costs of the Trust, and the
Master Servicer shall be entitled to be reimbursed therefor as Servicing
Advances as provided by Section 5.2, subject to the provisions of Section 4.4
hereof.
(b) In addition, the Master Servicer shall have no
liability with respect to, and shall be entitled to conclusively rely on as to
the truth of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Master Servicer and conforming to the
requirements of this Agreement. Subject to the Servicing Standard, the Master
Servicer shall have the right to rely on information provided to it by the
Special Servicer and Mortgagors, and will have no duty to investigate or verify
the accuracy thereof. Neither the Master Servicer, nor any director, officer,
employee, agent or Affiliate, shall be personally liable for any error of
judgement made in good faith by any officer, unless it shall be proved that the
Master Servicer or such officer was negligent in ascertaining the pertinent
facts. Neither the Master Servicer nor any director, officer, employee, agent or
Affiliate, shall be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur
any liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicer or Trustee in this Agreement. The Trust shall
indemnify and hold harmless the Master Servicer from any and all claims,
liabilities, costs, charges, fees or other expenses which relate to or arise
from any such breach of representation, warranty or covenant to the extent the
Master Servicer is unable to recover such amounts from the Person in breach.
(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document reasonably believed or in good faith believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Master Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Master Servicer shall not be personally liable
for any action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion, rights or powers conferred upon it by
this Agreement; and
(iv) the Master Servicer, in preparing any reports
hereunder, may rely, and shall be protected in acting or refraining from acting
upon any information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper reasonably believed by it to
be genuine and provided by any Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicer and any director, officer,
employee or agent of the Master Servicer shall be indemnified by (i) the Trustee
and held harmless against any loss, liability or expense including reasonable
attorneys' fees incurred in connection with any legal action relating to the
Trustee's willful misfeasance, bad faith or negligence in the performance of its
duties hereunder or by reason of negligent disregard of its duties hereunder,
and (ii) the Special Servicer and held harmless against any loss, liability or
expense including reasonable attorneys' fees incurred in connection with any
legal action relating to the Special Servicer's willful misfeasance, bad faith
or negligence in the performance of its duties hereunder or by reason of
negligent disregard of its duties hereunder, other than, in each case, any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of any of the Master Servicer's duties hereunder
or by reason of negligent disregard of the Master Servicer's obligations and
duties hereunder. The Master Servicer shall immediately notify the Trustee or
the Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Master Servicer to
indemnification hereunder, whereupon the Trustee or the Special Servicer, as
applicable, may assume the defense of any such claim (with counsel reasonably
satisfactory to the Master Servicer) and the Trustee or the Special Servicer, as
applicable, will pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so notify
the Trustee or the Special Servicer, as applicable, shall not affect any rights
the Master Servicer or the Trust may have to indemnification under this
Agreement or otherwise, unless the Trustee's or the Special Servicer's, as
applicable, defense of such claim is materially prejudiced thereby. Such
indemnity shall survive the termination of this Agreement or the resignation or
removal of the Master Servicer hereunder. Any payment hereunder made by the
Trustee or the Special Servicer, as applicable, pursuant to this paragraph to
the Master Servicer shall be paid from the Trustee's or the Special Servicer's,
as applicable, own funds, without reimbursement from the Trust therefor except
achieved through subrogation as provided in this Agreement. Any expenses
incurred or indemnification payments made by the Trustee or the Special
Servicer, as applicable, shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final judgment that the conduct of the Trustee or
the Special Servicer, as applicable, was not culpable or found to have acted
with willful misfeasance, bad faith or negligence or negligent disregard in the
performance of its duties.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer and any director, officer,
employee or agent of the Master Servicer shall be indemnified by the Trust and
held harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action relating to this
Agreement, any Mortgage Loans, any REO Property or the Certificates or any
exercise of any right under this Agreement reasonably requiring the use of
counsel or the incurring of expenses other than any loss, liability or expense
incurred by reason of the Master Servicer's willful misfeasance, bad faith or
negligence in the performance of duties hereunder. The Master Servicer shall
promptly notify the Trustee if a claim is made by a third party with respect to
this Agreement or the Mortgage Loans entitling the Master Servicer to
indemnification hereunder, whereupon the Trustee, on behalf of the Trust, shall
assume the defense of any such claim (with counsel reasonably satisfactory to
the Master Servicer) and out of the Trust pay all expenses in connection
therewith, including counsel fees, and out of the Trust promptly pay, discharge
and satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee shall not affect any
rights the Master Servicer may have to indemnification under this Agreement or
otherwise, unless the Trust is prejudiced thereby. The indemnification provided
herein shall survive the termination of this Agreement. The Trustee or the
Master Servicer shall promptly make from the Certificate Account any payments
certified by the Master Servicer to the Trustee as required to be made to the
Master Servicer pursuant to this Section 8.25.
(b) The Master Servicer agrees to indemnify the Trustee,
the Special Servicer, the Trust, the Depositor, and any director, officer,
employee, agent or Controlling Person thereof, and hold them harmless against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, liabilities, fees and expenses
that the Trustee, the Special Servicer, the Depositor, and the Trust may sustain
arising from or as a result of the willful misfeasance, bad faith or negligence
in the performance of any of the Master Servicer's duties hereunder or by reason
of negligent disregard of the Master Servicer's obligations and duties hereunder
and if in any such situation the Master Servicer is replaced, the parties hereto
agree that the amount of such claims, losses, penalties, fines, legal fees and
related costs, judgments, and other costs, liabilities, fees and expenses shall
at least equal the incremental costs, if any, of retaining a successor servicer.
The Trustee, the Special Servicer, or the Depositor, as applicable, shall
immediately notify the Master Servicer if a claim is made by any Person with
respect to this Agreement or the Mortgage Loans entitling the Trustee, the
Depositor, the Special Servicer, or the Trust to indemnification under this
Section 8.25(b), whereupon the Master Servicer shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Trustee, the Special
Servicer, or the Depositor, as applicable) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Master Servicer shall not affect any rights
the Trustee, the Special Servicer, the Depositor, or the Trust may have to
indemnification under this Agreement or otherwise, unless the Master Servicer's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or termination of the Master Servicer, the Special Servicer and the
Trustee. Any expenses incurred or indemnification payments made by the Master
Servicer shall be reimbursed by the party so paid, if a court of competent
jurisdiction makes a final, non-appealable judgment that the conduct of the
Master Servicer was not culpable or that the Master Servicer did not act with
willful misfeasance, bad faith or negligence.
(c) The parties expressly agree that the only written
information concerning the Master Servicer furnished by or on behalf of the
Master Servicer for inclusion in the Preliminary Prospectus Supplement and Final
Prospectus Supplement is the information set forth under the first three
paragraphs under the caption "SERVICING OF THE MORTGAGE LOANS -- The Master
Servicer" of the Preliminary Prospectus Supplement and Final Prospectus
Supplement.
SECTION 8.26 EXCHANGE ACT REPORTING. The Master Servicer, the
Special Servicer and the Trustee shall reasonably cooperate with the Depositor
in connection with the Depositor's satisfying the reporting requirements in
respect of the Trust under the Exchange Act. The Trustee shall prepare and file
on behalf of the Depositor periodic reports with respect to the Trust as
required by the Exchange Act and the Rules and Regulations of the Securities and
Exchange Commission thereunder; provided that such items shall have been
received by the Trustee (to the extent not generated by the Trustee) in
electronic format; and provided, further, that any such items that are required
to be delivered by the Master Servicer, the Special Servicer, the Depositor or
any other Person to the Trustee shall be so delivered in electronic format (in
addition to any other required format). The Trustee shall have no responsibility
to file any such items that have not been received in electronic format. The
Depositor shall seek from the Securities and Exchange Commission a no-action
letter or other exemptive relief relating to reduced reporting requirements in
respect of the Trust under the Exchange Act and shall, in accordance with and to
the extent permitted by applicable law, file a Form 15 relating to the automatic
termination of reporting in respect of the Trust under the Exchange Act.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. The Master
Servicer shall act in accordance with this Agreement and the REMIC Provisions
and related provisions of the Code in order to create or maintain the status of
the three REMIC Pools as REMICs under the Code. The Master Servicer shall use
its best efforts to take no action or cause any REMIC Pool to take any action
that could (i) endanger the status of any REMIC Pool as a REMIC under the Code
or (ii) result in the imposition of a tax upon any REMIC Pool (including, but
not limited to, the tax on prohibited transactions as defined in Code Section
860F(a)(2) or on prohibited contributions pursuant to Section 860G(d)).
SECTION 8.28 TERMINATION.
(a) The obligations and responsibilities of the Master
Servicer created hereby (other than the obligation of the Master Servicer to
make payments to the Trustee as set forth in Section 8.29 and the obligations of
the Master Servicer to the Trustee, the Special Servicer and the Trust) shall
terminate on the date which is (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining outstanding or (B) the
disposition of all REO Property, (ii) if an Event of Default described in
clauses 8.28(b)(ii) or (iii) has occurred, 60 days following the date on which
the Trustee or Depositor gives written notice to the Master Servicer that the
Master Servicer is terminated, (iii) if an Event of Default described in clauses
8.28(b)(i), (v), (vi) or (vii) has occurred, immediately upon the date on which
the Trustee or the Depositor gives written notice to the Master Servicer that
the Master Servicer is terminated or (iv) a successor Master Servicer is
appointed pursuant to the second paragraph of this Section 8.28(a). After any
Event of Default, (i) the Trustee may elect to terminate the Master Servicer by
providing such notice and (ii) shall provide such notice if holders of
Certificates representing more than 25% of the Certificate Balance of all
Certificates so direct the Trustee.
If the Master Servicer is terminated solely due to an Event of
Default described in Section 8.28(b)(iv), the Master Servicer will have sixty
days to sell the rights and obligations of the Master Servicer under this
Agreement to a successor servicer that meets the requirements of a Master
Servicer under this Agreement, provided that the Rating Agencies have confirmed
in writing that such servicing transfer will not result in a withdrawal,
downgrade or qualification of the then current ratings on the Certificates. The
termination of the Master Servicer will be effective when such servicer has
succeeded the Master Servicer as successor servicer and such successor servicer
has assumed the Master Servicer's obligations and responsibilities with respect
to the Mortgage Loans, as set forth in an agreement substantially in accordance
with Section 8.29. If a successor Master Servicer is not appointed within sixty
days, the Trustee or the Depositor will give written notice to the Master
Servicer that the Master Servicer is terminated.
(b) "Event of Default," wherever used herein, means any
one of the following events:
(i) any failure by the Master Servicer to remit to the
Trustee any payment required to be remitted by the Master Servicer under the
terms of this Agreement, including any required Advances; or
(ii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the duties, covenants or
agreements on the part of the Master Servicer contained in this Agreement which
continues unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Depositor or the Trustee; provided, however, that
if the Master Servicer certifies to the Trustee and the Depositor that the
Master Servicer is in good faith attempting to remedy such failure, such cure
period will be extended to the extent necessary to permit the Master Servicer to
cure such failure; provided, further, that such cure period may not exceed 90
days; or
(iii) any breach of the representations and warranties
contained in Section 8.20 hereof that materially and adversely affects the
interest of any holder of any Class of Certificateholders and that continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the Master
Servicer by the Depositor or the Trustee, provided, however, that if the Master
Servicer certifies to the Trustee and the Depositor that the Master Servicer is
in good faith attempting to remedy such breach, such cure period will be
extended to the extent necessary to permit the Master Servicer to cure such
breach; provided, further, that such cure period may not exceed 90 days; or
(iv) the Trustee shall receive notice from Fitch to the
effect that the continuation of the Master Servicer in such capacity would
result in the downgrade, qualification or withdrawal of any rating then assigned
by Fitch to any Class of Certificates or if the Master Servicer is not an
"approved" Master Servicer by S&P; or
(v) 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 and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(vi) the Master Servicer 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 relating to the Master Servicer or relating
to all or substantially all of its property; or
(vii) the Master Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of
Section 8.28(a), specifying the Master Servicer Remittance Date upon which the
final transfer by the Master Servicer to the Trustee shall be made, shall be
given promptly in writing by the Master Servicer to the Trustee no later than
the later of (i) five Business Days after the final payment or other liquidation
of the last Mortgage Loan or (ii) the sixth day of the month of such final
distribution. Upon any such termination, the duties of the Master Servicer
(other than the obligation of the Master Servicer to pay to the Trustee the
amounts remaining in the Certificate Account as set forth below and the
obligations of the Master Servicer to the Trustee and the Trust as provided
herein) shall terminate and the Master Servicer shall transfer to the Trustee
the amounts remaining in the Certificate Account after making the withdrawals
permitted to be made pursuant to Section 5.2 and shall thereafter terminate the
Certificate Account and any other account or fund maintained with respect to the
Mortgage Loans.
(b) On the date specified in a written notice of
termination given to the Master Servicer pursuant to clause (ii) of Section
8.28(a), or on the date on which a written notice of termination is given to the
Master Servicer pursuant to clause (iii) of Section 8.28(a) or the second
paragraph of Section 8.28(a) all authority, power and rights of the Master
Servicer under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall terminate except for any rights of the Master Servicer related
to accrued and unpaid Servicing Fees, unreimbursed Advances, accrued and unpaid
Advance Interest and, if Conning Asset Management Company is terminated as
Master Servicer, the Excess Servicing Fee; provided that in no event shall the
termination of the Master Servicer be effective until a successor servicer shall
have succeeded the Master Servicer as successor servicer, notified the Master
Servicer of such designation, and such successor servicer shall have assumed the
Servicer's obligations and responsibilities, as set forth in an agreement
substantially in the form hereof (or, in the case of the Trustee succeeding to
the rights, powers, responsibilities and obligations of the Master Servicer,
pursuant to this Agreement), with respect to the Mortgage Loans. Except as
provided in the next sentence, the Trustee may not succeed the Master Servicer
as servicer until and unless it has satisfied the provisions that would apply to
a Person succeeding to the business of the Master Servicer pursuant to Section
8.22(b) hereof. Notwithstanding the foregoing sentence, in the event that the
Master Servicer is terminated as a result of an event described in Section
8.28(b)(i), 8.28(b)(v), 8.28(b)(vi) or 8.28(b)(vii), the Trustee shall act as
successor servicer immediately upon delivery of a notice of termination to the
Master Servicer and shall use its best efforts within 90 days of assuming the
duties of the Servicer, either to satisfy the conditions of Section 8.22(b)
hereof or to transfer the duties of the Master Servicer to a successor servicer
who has satisfied such conditions.
The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder as Master Servicer including,
without limitation, notifying Mortgagors of the assignment of the servicing
function and providing the Trustee all documents and records in electronic or
other form reasonably requested by it to enable the successor servicer
designated by the Trustee to assume the Master Servicer's functions hereunder
and to effect the transfer to such successor for administration by it of all
amounts which shall at the time be or should have been deposited by the Master
Servicer in the Certificate Account and any other account or fund maintained or
thereafter received with respect to the Mortgage Loans.
(c) Notwithstanding anything else to the contrary herein,
no resignation, termination, removal, merger or assignment of servicing rights
or obligations shall affect, limit or impede payment of the Excess Servicing Fee
to Conning Asset Management Company or its assigns, such Excess Servicing Fee
being non-terminable except upon termination of the Trust. Nothing herein shall
restrict or impair the ability of Conning Asset Management Company to assign its
rights to the Excess Servicing Fee.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) For and on behalf of the Certificateholders and the
Trustee, the Special Servicer shall service the Specially Serviced Mortgage
Loans and manage the related REO Properties in accordance with the provisions of
this Agreement and the Servicing Standard.
(b) The Special Servicer shall cooperate with the Master
Servicer and provide the Master Servicer with the information reasonably
requested by the Master Servicer, in writing, to the extent required to allow
the Master Servicer to perform its servicing obligations with respect to the
Specially Serviced Mortgage Loans hereunder; provided, however, that (i) the
Special Servicer shall not be required to produce any ad hoc reports or incur
any unusual expense or effort in connection therewith and (ii) if the Special
Servicer elects to provide such ad hoc reports, the Special Servicer may require
the Master Servicer to pay a reasonable fee to cover the costs of the
preparation thereof. The Special Servicer's obligations with respect to the
servicing of any Specially Serviced Mortgage Loan and any related REO Properties
shall terminate when such Specially Serviced Mortgage Loan has become a
Rehabilitated Mortgage Loan, unless and until another Servicing Transfer Event
with respect to such Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to
the Master Servicer and the Trustee within two Business Days (or sooner, if
required by the Servicing Standard) after becoming aware that a Mortgage Loan
has become a Rehabilitated Mortgage Loan, which notice shall identify the
applicable Mortgage Loan. Upon the receipt of such notice by the Master Servicer
and the Trustee, such Mortgage Loan shall become a Rehabilitated Mortgage Loan
and will be serviced by the Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event
with respect to a Mortgage Loan and upon the reasonable request of the Special
Servicer, the Master Servicer shall mark its records for such Mortgage Loan to
cause any monthly statements for amounts due on such Mortgage Loan to be sent
thereafter to the Special Servicer rather than the related Mortgagor. Upon
receipt of any such monthly statement, the Special Servicer shall, within two
Business Days, advise the Master Servicer of any changes to be made, and return
the monthly statement to the Master Servicer. The Master Servicer shall
thereafter promptly send the corrected monthly statement to the Mortgagor. If a
Mortgage Loan becomes a Rehabilitated Mortgage Loan, the Master Servicer shall
send the monthly statement to the Mortgagor as it did before such Mortgage Loan
became a Specially Serviced Mortgage Loan.
(e) All amounts collected by the Master Servicer with
respect to a Specially Serviced Mortgage Loan (other than a Mortgage Loan that
has become an REO Property) shall be deposited in the Certificate Account. The
Master Servicer shall within three Business Days after receipt of any such
payment, notify the Special Servicer of the receipt of such payment and the
amount thereof. The Special Servicer shall, within one Business Day thereafter,
instruct the Master Servicer in writing how to apply such payment.
(f) The Special Servicer covenants that by August 31,
1999, any custom-made software or hardware designed or purchased or licensed by
the Special Servicer and used by the Special Servicer in the course of operation
or management of, or the compiling, reporting or generation of data required by
this Agreement will not contain any deficiency (x) in the ability of such
software or hardware to identify correctly or perform calculations or other
processing with respect to dates after December 31, 1999 or (y) that would cause
such software to be fit no longer for the purpose for which it was intended by
reason of the changing of the date from 1999 to 2000.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY OF SPECIAL SERVICER. The Special Servicer, at its expense, shall maintain
in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance
Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity
Bond shall be issued by a Qualified Insurer (unless the Special Servicer self
insures as provided below) and be in form and amount consistent with the
Servicing Standard. In the event that any such Servicer Errors and Omissions
Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the Special
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long-term rating of the Special Servicer is not less
than two rating categories (ignoring pluses or minuses) lower than the highest
rating of the Certificates, but in any event not less than "BBB" as rated by S&P
and "AA" as rated by Fitch, the Special Servicer may self-insure for the
Servicer Fidelity Bond and the Servicer Error and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer may appoint
one or more Sub-Servicers to perform all or any portion of its duties hereunder
for the benefit of the Trustee and the Certificateholders. The Special Servicer
shall notify the Master Servicer and Trustee of the appointment of any
Sub-Servicer of the Special Servicer. The Special Servicer shall not enter into
any Sub-Servicing Agreement unless: (i) Fitch has provided Rating Agency
Confirmation with respect to such Sub-Servicing Agreement or (ii) the
Sub-Servicing Agreement relates to a Mortgage Loan or Mortgage Loans (along with
any Mortgage Loans previously sub-serviced in accordance with this section) that
represent less than 25% of the outstanding principal balance of all Specially
Serviced Mortgage Loans. With respect to any such Sub-Servicer, the Special
Servicer shall supervise, administer, monitor, enforce and oversee the servicing
of the applicable Specially Serviced Mortgage Loans by any Sub-Servicer
appointed by it. The terms of any arrangement or agreement between the Special
Servicer and a Sub-Servicer, shall provide that such agreement or arrangement
may be terminated, without cause and without the payment of any termination
fees, by the Trustee in the event such Special Servicer is terminated in
accordance with this Agreement. In addition, neither the Trustee nor the
Certificateholders shall have any direct obligation or liability (including,
without limitation, indemnification obligations) with respect to any
Sub-Servicer. The Special Servicer shall pay the costs of enforcement against
any of its Sub-Servicers at its own expense, but shall be reimbursed therefor
only (i) from a general recovery resulting from such enforcement only to the
extent that such recovery exceeds all amounts due in respect of the related
Mortgage Loans or (ii) from a specific recovery of costs, expenses or attorneys
fees against the party against whom such enforcement is directed.
Notwithstanding the provisions of any Sub-Servicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Special Servicer or a Sub-Servicer, or reference to actions taken through a
Sub-Servicer or otherwise, the Special Servicer shall remain obligated and
liable to the Trustee and the Certificateholders for the servicing and
administering of the applicable Mortgage Loans in accordance with (and subject
to the limitations contained within) the provisions of this Agreement without
diminution of such obligation or liability by virtue of indemnification from a
Sub-Servicer and to the same extent and under the same terms and conditions as
if the Special Servicer alone were servicing and administering the Mortgage
Loans.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this
Agreement, the Special Servicer is hereby authorized and empowered when the
Special Servicer believes it appropriate in accordance with the Servicing
Standard, to take any and all the actions with respect to Specially Serviced
Mortgage Loans which the Master Servicer may perform as set forth in Section
8.3(a), including (i) to execute and deliver, on behalf of itself or the Trust,
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge and all other comparable instruments, with respect to the
Specially Serviced Mortgage Loans and with respect to the related REO Properties
and (ii) to effectuate foreclosure or other conversion of the ownership of any
REO Property securing a Mortgage Loan. The Trustee shall execute on the Closing
Date a Power of Attorney in the form of Exhibit S-2 hereto and shall furnish the
Special Servicer from time to time, upon request, with any additional powers of
attorney of the Trust, empowering the Special Servicer to take such actions as
it determines to be reasonably necessary to comply with its servicing,
administrative and management duties hereunder, and the Trustee shall execute
and deliver or cause to be executed and delivered such other documents as a
Special Servicing Officer may request, that are necessary or appropriate to
enable the Special Servicer to service, administer and manage the Specially
Serviced Mortgage Loans and carry out its duties hereunder, in each case as the
Special Servicer determines is in accordance with the Servicing Standard and the
terms of this Agreement; provided, that, prior to initiating any proceedings in
any court of law or equity (but not defending any proceedings in any court of
law or equity) or instituting any proceeding to foreclose on any Mortgaged
Property in the name of the Trust in any state, the Special Servicer shall
notify the Trustee in writing and not institute or initiate any such proceedings
for a period of five Business Days from the date of its delivery of such notice
to the Trustee, unless the Special Servicer reasonably believes that such action
should be taken in less than five Business days to preserve the property of the
Trust for the benefit of Certificateholders, and the Trustee may within five
Business Days of its receipt of such notice advise the Special Servicer that it
has received an Opinion of Counsel (the cost of which shall be an expense of the
Trust) from an attorney duly licensed to practice law in the state where the
related Mortgaged Property or REO Property is located, that it is likely that
the laws of the state in which said action is to be taken either prohibit such
action if taken in the name of the Trust or that the Trust would be adversely
affected under the "doing business" or tax laws of such state if such action is
taken in its name; provided, further, that the Special Servicer shall not be
liable to the extent that it relies on the advice provided in such Opinion of
Counsel. Upon receipt of any such advice from the Trustee, the Special Servicer
shall take such action in the name of such Person or Persons, in trust for the
Trust, as shall be consistent with the Opinion of Counsel obtained by the
Trustee. Such Person or Persons shall acknowledge in writing that such action is
being taken by the Special Servicer in the name of the Trust. In the performance
of its duties hereunder, the Special Servicer shall be an independent contractor
and shall not, except in those instances where it is, after notice to the
Trustee as provided above, taking action in the name of the Trust, be deemed to
be the agent of the Trust. The Special Servicer shall indemnify the Trustee for
any loss, liability or reasonable expense (including attorneys' fees) incurred
by the Trustee or any director, officer, employee, agent or Controlling Person
of it or its affiliates in connection with any negligent or intentional misuse
of the foregoing powers of attorney furnished to the Special Servicer by the
Trustee. Such indemnification shall survive the resignation or termination of
the Special Servicer hereunder, the resignation or termination of the Trustee
and the termination of this Agreement. The Special Servicer shall not have any
responsibility or liability for any act or omission of the Trustee, the Master
Servicer or the Depositor that is not attributable to the failure of the Special
Servicer to perform its obligations hereunder. The Special Servicer may
conclusively rely on any advice of counsel rendered in a Nondisqualification
Opinion.
(b) In servicing and administering the Specially Serviced
Mortgage Loans and managing any related REO Properties, the Special Servicer
shall employ procedures consistent with the Servicing Standard. The Special
Servicer shall conduct, or cause to be conducted, inspections, at its own
expense, of the Mortgaged Properties relating to Specially Serviced Mortgage
Loans at such times and in such manner as shall be consistent with the Servicing
Standard; provided, that the Special Servicer shall conduct, or cause to be
conducted, inspections of the Mortgaged Properties relating to Specially
Serviced Mortgage Loans at least once during each twelve-month period that ends
on June 30 of any calendar year (commencing with the twelve-month period ending
June 30, 2000); provided, further, that the Special Servicer shall, at its own
expense, inspect or cause to be inspected each Mortgaged Property related to a
Mortgage Loan that is delinquent for sixty (60) days in the payment of any
amounts due under such Mortgage Loan. The Special Servicer shall provide to the
Master Servicer and the Operating Adviser copies of the Inspection Reports
relating to such inspections as soon as practicable after the completion of any
inspection.
SECTION 9.5 "DUE-ON-SALE" AND "DUE-ON-ENCUMBRANCE" CLAUSES;
ASSIGNMENT AND ASSUMPTION AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED
MORTGAGE LOANS.
Subject to the Servicing Standard and to the limitations of
Section 12.3, the Special Servicer shall have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a
provision in the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan
shall (or may at the Mortgagee's option) become due and payable upon the sale or
other transfer of an interest in the related Mortgaged Property, or
(ii) provides that such Specially Serviced Mortgage Loan
may not be assumed without the consent of the related mortgagee in connection
with any such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after notification to
the Operating Adviser and in accordance with the REMIC Provisions, take such
actions as it deems to be in the best economic interest of the Trust in
accordance with the Servicing Standard, and may waive or enforce any due-on-sale
clause contained in the related Mortgage Note or Mortgage; provided, however,
that if the Principal Balance of such Mortgage Loan at such time equals or
exceeds 2% of the Aggregate Certificate Balance, but in any case, at least $20
million (the "Review Threshold"), then prior to waiving the effect of such
provision, the Special Servicer shall obtain Rating Agency Confirmation
regarding such waiver.
After notice to the Operating Adviser, subject to the
foregoing paragraph, the Special Servicer is also authorized to take or enter
into an assignment and assumption agreement from or with the Person to whom such
property has been or is about to be conveyed, and/or to release the original
Mortgagor from liability upon the Specially Serviced Mortgage Loan and
substitute the new Mortgagor as obligor thereon; provided, that except as
otherwise permitted by Section 9.5(c), any such assignment and assumption or
substitution agreement shall contain no terms that could result in an Adverse
REMIC Event. To the extent permitted by law, the Special Servicer shall enter
into an assumption or substitution agreement only if the credit status of the
prospective new mortgagor and the underwriting of the new mortgagor is in
compliance with the Special Servicer's regular commercial mortgage origination
or servicing standards and criteria. The Special Servicer shall notify the
Master Servicer of any such assignment and assumption or substitution agreement
and the Special Servicer shall forward to the Trustee the original of such
agreement, which original shall be added by the Trustee to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File to
the same extent as all other documents and instruments constituting a part
thereof.
If any Specially Serviced Mortgage Loan contains a provision
in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any lien or
other encumbrance on the related Mortgaged Property, or
(ii) requires the consent of the related mortgagee to the
creation of any such lien or other encumbrance on the related Mortgaged
Property,
then, the Special Servicer, on behalf of the Trust, shall, after notification to
the Operating Adviser and in accordance with the REMIC Provisions, take such
actions as it deems to be in the best economic interest of the Trust in
accordance with the Servicing Standard, and may waive or enforce any
due-on-encumbrance clause contained in the related Mortgage Note or Mortgage;
provided, however, that prior to waiving the effect of such provision, the
Special Servicer shall obtain Rating Agency Confirmation regarding such waiver.
After notice to the Operating Adviser, subject to the
foregoing paragraph, the Special Servicer is also authorized to take or enter
into agreements relating to the additional encumbrance, including any
intercreditor agreement relating to such additional indebtedness; provided, that
except as otherwise permitted by Section 9.5(c), any such agreements shall
contain no terms that could result in an Adverse REMIC Event. The Special
Servicer shall notify the Master Servicer of any such additional agreements and
the Special Servicer shall forward to the Trustee the original of such
agreement, which original shall be added by the Trustee to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File to
the same extent as all other documents and instruments constituting a part
thereof.
(b) In connection with any assignment and assumption of a
Specially Serviced Mortgage Loan, in no event shall the Special Servicer consent
to the creation of any lien on a Mortgaged Property that is senior to, or on a
parity with, the lien of the related Mortgage. Nothing in this Section 9.5 shall
constitute a waiver of the Trustee's right, as the mortgagee of record, to
receive notice of any assignment and assumption of a Specially Serviced Mortgage
Loan, any sale or other transfer of the related Mortgaged Property or the
creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(c) Subject to the Servicing Standard and Section 9.34
and this Section, and the rights and duties of the Master Servicer under Section
8.18, the Special Servicer may enter into any modification, waiver or amendment
(including, without limitation, the substitution or release of collateral or the
pledge of additional collateral) of the terms of any Specially Serviced Mortgage
Loan, including any modification, waiver or amendment to (i) reduce the amounts
owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest and/or any Prepayment Premium, (ii) reduce the amount of the Scheduled
Payment on any Specially Serviced Mortgage Loan, including by way of a reduction
in the related Mortgage Rate, (iii) forbear in the enforcement of any right
granted under any Mortgage Note or Mortgage relating to a Specially Serviced
Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced Mortgage
Loan and/or (v) accept a principal prepayment on any Specially Serviced Mortgage
Loan during any period during which voluntary Principal Prepayments are
prohibited, provided, in the case of any such modification, waiver or amendment,
that (A) the related Mortgagor is in default with respect to the Specially
Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer,
such default is reasonably foreseeable, (B) in the reasonable judgment of the
Special Servicer, such modification, waiver or amendment would increase the
recovery on the Specially Serviced Mortgage Loan to Certificateholders on a net
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at related Mortgage Rate),
(C) such modification, waiver or amendment would not cause an Adverse REMIC
Event to occur, and (D) if notice to the Operating Adviser of such modification,
waiver or amendment is required pursuant to Section 9.39, the Special Servicer
has made such notice.
In no event, however, shall the Special Servicer (i) extend
the Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is
two years prior to the Final Rated Distribution Date or (ii) if the Specially
Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of
such Specially Serviced Mortgage Loan beyond a date which is ten (10) years
prior to the expiration of the term of such ground lease.
The determination of the Special Servicer contemplated by
clause (B) of the proviso to the first paragraph shall be evidenced by an
Officer's Certificate setting forth the information required under subsection
(c).
(d) In the event the Special Servicer intends to permit a
Mortgagor to substitute collateral for all or any portion of a Mortgaged
Property pursuant to Section 9.5(c) or pledge additional collateral for the
Mortgage Loan pursuant to Section 9.5(c), if the security interest of the Trust
in such collateral would be perfected by possession, or if such collateral
requires special care or protection, then prior to agreeing to such substitution
or addition of collateral, the Special Servicer shall make arrangements for such
possession, care or protection, and prior to agreeing to such substitution or
addition of collateral (or such arrangement for possession, care or protection)
shall obtain the prior written consent of the Trustee with respect thereto
(which consent shall not be unreasonably withheld, delayed or conditioned);
provided, however, that the Trustee shall not be required (but has the option)
to consent to any substitution or addition of collateral or to hold any such
collateral which will require the Trustee to undertake any additional duties or
obligations or incur any additional expense; provided, further, that the Special
Servicer shall obtain Rating Agency Confirmation prior to permitting such
substitution of collateral.
(e) The Special Servicer will promptly deliver to the
Master Servicer, the Operating Adviser, the Trustee and the Rating Agencies a
notice, specifying any such assignments and assumptions, modifications, waivers
or amendments, such notice identifying the affected Specially Serviced Mortgage
Loan. Such notice shall be delivered to the Trustee and shall set forth the
reasons for such waiver, modification, or amendment (including, but not limited
to, information such as related income and expense statements, rent rolls,
occupancy status, property inspections, and an internal or external appraisal
performed in accordance with MAI standards and methodologies (and, if done
externally, the cost of such appraisal shall be recoverable as a Servicing
Advance subject to the provisions of Section 4.4 hereof)). The Special Servicer
shall also deliver to the Trustee (or the Custodian), for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment promptly following the execution thereof.
(f) No fee described in this Section shall be collected
by the Special Servicer from the Mortgagor (or on behalf of the Mortgagor) in
conjunction with any consent or any modification, waiver or amendment of the
Mortgage Loan if the collection of such fee would cause such consent,
modification, waiver or amendment to be a "significant modification" of the
Mortgage Note within the meaning of Treasury Regulation ss. 1.860G-2(b). Subject
to the foregoing, the Special Servicer shall use its reasonable efforts, in
accordance with the Servicing Standard, to collect any modification fees and
other expenses connected with a permitted modification of a Mortgage Loan from
the Mortgagor. The inability of the Mortgagor to pay any costs and expenses of a
proposed modification shall not impair the right of the Special Servicer, the
Master Servicer or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel referred
to in this Section).
(g) The Special Servicer shall cooperate with the Master
Servicer (as provided in Section 8.7) in connection with assignments and
assumptions of Mortgage Loans that are not Specially Serviced Mortgage Loans,
and shall be entitled to receive 50% of any assumption fee paid by the related
Mortgagor in connection with an assignment and assumption executed pursuant to
Section 8.7. A Mortgage Loan will not be considered a Specially Serviced
Mortgage Loan solely due to any action taken by the Special Servicer under
Section 8.7(a) or (b). In addition, the Special Servicer will not be entitled to
any fee for any action it takes under Section 8.7(a) or (b) other than as
described in this paragraph.
(h) Notwithstanding anything herein to the contrary, the
Special Servicer shall not be permitted to take or refrain from taking any
action pursuant to instructions from the Operating Adviser that would cause it
to violate any term or provision of this Agreement, including the REMIC
Provisions and the Servicing Standard.
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any
Specially Serviced Mortgage Loan, or the receipt by the Special Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Special Servicer will immediately notify the Master Servicer.
The Special Servicer shall determine, in accordance with the Servicing Standard,
whether an instrument of satisfaction shall be delivered and, if the Special
Servicer determines that such instrument should be delivered, the Special
Servicer shall deliver written approval of such delivery to the Master Servicer.
(b) From time to time and as appropriate for the
servicing or foreclosure of any Specially Serviced Mortgage Loan or the
management of the related REO Property and in accordance with the Servicing
Standard, the Trustee shall execute or cause to be executed such documents as
shall be prepared and furnished to the Trustee by a Special Servicing Officer
(in form reasonably acceptable to the Trustee) and as are necessary for such
purposes. The Trustee or Custodian shall, upon request of the Special Servicer
and delivery to the Trustee or Custodian of a request for release signed by a
Special Servicing Officer substantially in the form of Exhibit C, release the
related Mortgage File to the Special Servicer. After the transfer of servicing
with respect to any Specially Serviced Mortgage Loan to the Special Servicer, in
accordance with the Servicing Standard, the Master Servicer shall notify, in
writing, the Mortgagor under each Specially Serviced Mortgage Loan transferred
to the Special Servicer, of such transfer.
(c) The Special Servicer shall send notification in
writing, to the Master Servicer to request any documents and instruments in the
possession of the Master Servicer related to any Specially Serviced Mortgage
Loan.
(d) The Special Servicer shall, with respect to any
Rehabilitated Mortgage Loan, release to the Master Servicer all documents and
instruments in the possession of the Special Servicer related to such
Rehabilitated Mortgage Loan. Prior to the transfer of servicing with respect to
any Rehabilitated Mortgage Loan to the Master Servicer in accordance with the
Servicing Standard, the Special Servicer shall notify, in writing, each
Mortgagor under each Rehabilitated Mortgage Loan of such transfer.
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
SPECIAL SERVICER TO BE HELD FOR THE TRUSTEE.
(a) The Special Servicer shall transmit to the Trustee or
Custodian such documents and instruments coming into the possession of the
Special Servicer as from time to time are required by the terms hereof to be
delivered to the Trustee. Any funds received by the Special Servicer in respect
of any Specially Serviced Mortgage Loan or any REO Property or which otherwise
are collected by the Special Servicer as Liquidation Proceeds, Condemnation
Proceeds or Insurance Proceeds in respect of any Specially Serviced Mortgage
Loan or any REO Property shall be transmitted to the Master Servicer within one
Business Day of receipt to the Certificate Account, except that if such amounts
relate to REO Income, they shall be deposited in the REO Account. The Special
Servicer shall provide access to information and documentation regarding the
Specially Serviced Mortgage Loans to the Trustee, the Master Servicer, the
Operating Adviser and their respective agents and accountants at any time upon
reasonable written request and during normal business hours, provided that the
Special Servicer shall not be required to take any action or provide any
information that the Special Servicer determines will result in any material
cost or expense to which it is not entitled to reimbursement hereunder or will
result in any material liability for which it is not indemnified hereunder;
provided, further, that the Trustee and the Master Servicer shall be entitled to
receive from the Special Servicer all such information as the Trustee and the
Master Servicer shall reasonably require to perform their respective duties
hereunder. In fulfilling such a request, the Special Servicer shall not be
responsible for determining whether such information is sufficient for the
Trustee's, the Master Servicer's or the Operating Adviser's purposes.
(b) The Special Servicer hereby acknowledges that the
Trust owns the Specially Serviced Mortgage Loans and all Mortgage Files
representing such Specially Serviced Mortgage Loans and all funds now or
hereafter held by, or under the control of, the Special Servicer that are
collected by the Special Servicer in connection with the Specially Serviced
Mortgage Loans (but excluding any Special Servicer Compensation and all other
amounts to which the Special Servicer is entitled hereunder); and the Special
Servicer agrees that all documents or instruments constituting part of the
Mortgage Files, and such funds relating to the Specially Serviced Mortgage Loans
which come into the possession or custody of, or which are subject to the
control of, the Special Servicer, shall be held by the Special Servicer for and
on behalf of the Trust.
(c) The Special Servicer also agrees that it shall not
create, incur or subject any Specially Serviced Mortgage Loans, or any funds
that are required to be deposited in any REO Account to any claim, lien,
security interest, judgment, levy, writ of attachment or other encumbrance, nor
assert by legal action or otherwise any claim or right of setoff against any
Specially Serviced Mortgage Loan or any funds, collected on, or in connection
with, a Specially Serviced Mortgage Loan.
SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SPECIAL SERVICER.
(a) The Special Servicer hereby represents, warrants to
and covenants with the Trustee (in its capacity as Trustee of the Trust) that as
of the date hereof:
(i) the Special Servicer is duly organized, validly
existing and in good standing as a corporation under the laws of the state of
Missouri and shall be and thereafter remain, in compliance with the laws of each
state in which any Mortgaged Property (including any REO Property) which is, or
is related to, a Specially Serviced Mortgage Loan is located to the extent
necessary to perform its obligations under this Agreement, except where the
failure to so qualify or comply would not adversely affect the Special
Servicer's ability to perform its obligations hereunder in accordance with the
terms of this Agreement;
(ii) the Special Servicer has the full power and authority
to execute, deliver, perform, and to enter into and consummate all transactions
and obligations contemplated by this Agreement. The Special Servicer has duly
and validly authorized the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the Depositor, the Trustee and the Master Servicer evidences
the valid and binding obligation of the Special Servicer, enforceable against
the Special Servicer in accordance with its terms subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, receivership,
moratorium and other similar laws affecting creditors' rights generally as from
time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its articles of incorporation or by-laws
or (2) conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement or
instrument to which it is a party or by which it may be bound, or any law,
governmental rule, regulation, or judgment, decree or order applicable to it of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which breach, conflict, violation, acceleration or default
materially and adversely affects its ability to perform its obligations under
this Agreement.
(iv) no litigation is pending or, to the Special Servicer's
knowledge, threatened, against it, that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by it, or compliance by it with, this Agreement, or the consummation
of the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, it has obtained the same or will obtain the
same prior to the time necessary to perform its obligations under this
Agreement, except to the extent that its failure to be qualified as a foreign
corporation or licensed in one or more states is not necessary for the
performance by it of its obligations hereunder;
(vi) the performance of the services by the Special
Servicer contemplated by this Agreement are in the ordinary course of business
of the Special Servicer; and
(vii) the Servicer Fidelity Bond or Servicer Errors and
Omissions Insurance Policy described in Section 9.2 is in place as of the date
of this Agreement (or the Special Servicer self-insures in a manner consistent
with Section 9.2 of this Agreement).
(b) It is understood that the representations and
warranties set forth in this Section 9.8 shall survive the execution and
delivery of this Agreement.
(c) Any cause of action against the Special Servicer
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by any of the Trustee, the
Master Servicer or the Special Servicer. The Special Servicer shall give prompt
notice to the Trustee, the Depositor, the Operating Adviser and the Master
Servicer of the occurrence, or the failure to occur, of any event that, with
notice, or the passage of time or both, would cause any representation or
warranty in this Section to be untrue or inaccurate in any respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL
LIABILITY INSURANCE POLICIES.
(a) For all REO Property, to the extent consistent with
the Servicing Standard, the Special Servicer shall use efforts, consistent with
the Servicing Standard, to maintain with a Qualified Insurer a Standard Hazard
Insurance Policy which does not provide for reduction due to depreciation in an
amount which is not less than the full replacement cost of the improvements of
such REO Property or in an amount not less than the unpaid principal balance
plus all unpaid interest of such REO Mortgage Loan and the cumulative amount of
Servicing Advances (plus Advance Interest) made with respect to such Mortgage
Loan, whichever is less, but, in any event, in an amount sufficient to avoid the
application of any co-insurance clause. If the REO Property is in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance has been made available),
the Special Servicer shall maintain a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
in an amount representing coverage equal to the lesser of the then outstanding
Principal Balance of the REO Mortgage Loan and unpaid Advances (plus Advance
Interest) and the maximum insurance coverage required under such current
guidelines. It is understood and agreed that the Special Servicer has no
obligation to obtain earthquake or other additional insurance on REO Property,
except as required by law and, nevertheless, at its sole option and at the
Trust's expense, it (if required at origination and is available at commercially
reasonable rates) may obtain such earthquake insurance. The Special Servicer
shall use its reasonable efforts, consistent with the Servicing Standard, to
obtain a comprehensive general liability insurance policy for all REO
Properties. The Special Servicer shall, to the extent available at commercially
reasonable rates (as determined by the Special Servicer in accordance with the
Servicing Standard) and to the extent consistent with the Servicing Standard,
use its reasonable efforts to maintain a Rent Loss Policy covering revenues for
a period of at least twelve months and a comprehensive general liability policy
with coverage comparable to prudent lending requirements in an amount not less
than $1 million per occurrence. All applicable policies required to be
maintained by the Special Servicer pursuant to this Section 9.9(a) shall name
the Trustee as loss payee. The costs of such insurance shall be a Servicing
Advance, subject to the provisions of Section 4.4 hereof.
(b) Any amounts collected by the Special Servicer under
any insurance policies maintained pursuant to this Section 9.9 (other than
amounts to be applied to the restoration or repair of the REO Property) shall be
deposited into the applicable REO Account. Any cost incurred in maintaining the
insurance required hereby for any REO Property shall be a Servicing Advance,
subject to the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, (i) the Special Servicer
shall have no obligation beyond using its reasonable efforts consistent with the
Servicing Standard to enforce such insurance requirements and (ii) the Special
Servicer shall not be required in any event to maintain or obtain insurance
coverage beyond what is reasonably available at a cost customarily acceptable
and consistent with the Servicing Standard. The Special Servicer shall notify
the Trustee of any such determination.
The Special Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 9.9 either (i) if the
Special Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the REO
Property, it being understood and agreed that such policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers consistent with the Servicing
Standard, and provided that such policy is issued by a Qualified Insurer or (ii)
if the Special Servicer self-insures for its obligations as set forth in the
first paragraph of this Section 9.9, provided that the rating of such Person's
long-term debt is not less than "AA" by S&P and "AA" by Fitch. In the event that
the Special Servicer shall cause any REO Property to be covered by such a master
force placed or blanket insurance policy, the incremental cost of such insurance
allocable to such REO Property (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgage Loan is then covered
thereby) shall be paid by the Master Servicer as a Servicing Advance, subject to
the provisions of Section 4.4 hereof. If such policy contains a deductible
clause, the Special Servicer shall, if there shall not have been maintained on
the related REO Property a policy complying with this Section 9.9 and there
shall have been a loss that would have been covered by such policy, deposit in
the Certificate Account the amount not otherwise payable under such master force
placed or blanket insurance policy because of such deductible clause to the
extent that such deductible exceeds (i) the deductible under the related
Mortgage Loan or (ii) if there is no deductible limitation required under the
Mortgage Loan, the deductible amount with respect to insurance policies
generally available on properties similar to the related REO Property which is
consistent with the Servicing Standard, and deliver to the Trustee an Officer's
Certificate describing the calculation of such amount. In connection with its
activities as administrator and servicer of the REO Property, the Special
Servicer agrees to present, on its behalf and on behalf of the Trustee, claims
under any such master force placed or blanket insurance policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
The Special Servicer will prepare and present or cause to be prepared and
presented on behalf of the Trustee all claims under the Insurance Policies with
respect to REO Property, and take such actions (including the negotiation,
settlement, compromise or enforcement of the insured's claim) as shall be
necessary to recover under such policies. Any proceeds disbursed to the Special
Servicer in respect of such policies shall be promptly remitted to the
Certificate Account, upon receipt, except for any amounts realized that are to
be applied to the repair or restoration of the applicable REO Property in
accordance with the Servicing Standard. Any extraordinary expenses (but not
ordinary and routine or anticipated expenses) incurred by the Special Servicer
in fulfilling its obligations under this Section 9.10 shall be paid by the
Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the
Special Servicer shall be entitled to (i) the Special Servicing Fee, (ii) the
Liquidation Fee and (iii) the Work-Out Fee. Such amounts, if any, collected by
the Special Servicer from the related Mortgagor shall be transferred by the
Special Servicer to the Master Servicer within one Business Day of receipt
thereof, and deposited by the Master Servicer in the Certificate Account. The
Special Servicer shall be entitled to receive a Liquidation Fee from the
Liquidation Proceeds received in connection with a Final Disposition of a
Specially Serviced Mortgage Loan or REO Property. The Workout Fee with respect
to any Rehabilitated Mortgage Loan will cease to be payable if such loan again
becomes a Specially Serviced Mortgage Loan or if the related Mortgaged Property
becomes an REO Property. If the Special Servicer is terminated for any reason,
it will retain the right to receive any Workout Fees payable on Mortgage Loans
that became Rehabilitated Mortgage Loans while it acted as Special Servicer and
remained Rehabilitated Mortgage Loans at the time of such termination until such
Mortgage Loan becomes a Specially Serviced Mortgage Loan or if the related
Mortgaged Property becomes an REO Property. The successor Special Servicer will
not be entitled to any portion of such Workout Fees. Notwithstanding any other
provision herein, the Special Servicing Fee for each monthly period relating to
each Determination Date shall be reduced by an amount equal to the Compensating
Interest Payment, if any, relating to Specially Serviced Mortgage Loans which
have received voluntary Principal Prepayments (not from Liquidation Proceeds or
from modifications of Specially Serviced Mortgage Loans) for such Determination
Date. The Special Servicer shall also be entitled to additional servicing
compensation of an amount equal to the excess, if any, of the aggregate
Prepayment Interest Excess relating to Mortgage Loans which are Specially
Serviced Mortgage Loans which have received voluntary Principal Prepayments (not
from Liquidation Proceeds or from modifications of Specially Serviced Mortgage
Loans) for each Distribution Date over the aggregate Prepayment Interest
Shortfalls for such Mortgage Loans for such Distribution Date.
(b) The Special Servicer shall be entitled to cause the
Master Servicer to withdraw from the Certificate Account the Special Servicer
Compensation in respect of each such Specially Serviced Mortgage Loan in the
time and manner set forth in Section 5.2 of this Agreement. The Special Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder and shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
(c) Additional Special Servicer compensation in the form
of net interest or income on any REO Account, assumption fees, extension fees,
Modification Fees, forbearance fees, Late Fees (net of Advance Interest) or
other usual and customary charges and fees actually received from the Mortgagor
in connection with any Specially Serviced Mortgage Loan shall be retained by the
Special Servicer, to the extent not required to be deposited in the Certificate
Account pursuant to the terms of this Agreement. The Special Servicer shall also
be permitted to receive 50% of all assumption fees collected with respect to
Mortgage Loans that are not Specially Serviced Mortgage Loans as provided in
Section 8.7. To the extent any component of Special Servicer Compensation is in
respect of amounts usually and customarily paid by Mortgagors, the Special
Servicer shall use reasonable good faith efforts to collect such amounts from
the related Mortgagor, and to the extent so collected, in full or in part, the
Special Servicer shall not be entitled to compensation for the portion so
collected therefor hereunder out of the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the
Servicing Standard and subject to Section 9.4(a), shall use its reasonable
efforts to foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Specially Serviced
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments of
such Mortgage Loan, the sale of such Mortgage Loan in accordance with this
Agreement or the modification of such Mortgage Loan in accordance with this
Agreement. In connection with such foreclosure or other conversion of ownership,
the Special Servicer shall follow the Servicing Standard. The foregoing is
subject to the proviso that the Special Servicer shall not request that the
Master Servicer make a Servicing Advance for Liquidation Expenses unless the
Special Servicer shall in its sole discretion determine, consistent with the
Servicing Standard, (i) that such foreclosure or restoration will increase on a
net present value basis the Liquidation Proceeds of the Specially Serviced
Mortgage Loan to the Trust and (ii) that such Liquidation Expenses will be
recoverable from Liquidation Proceeds, and any such Servicing Advance by the
Master Servicer or the Trustee shall be subject to the determination(s) of
recoverability contemplated by Section 4.4.
(b) The Special Servicer shall not acquire any personal
property relating to any Specially Serviced Mortgage Loan pursuant hereto unless
either:
(i) such personal property is incidental 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 received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust)
to the effect that the holding of such personal property by any REMIC will not
cause the imposition of a tax on any REMIC Pool under the Code or cause any
REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this
Agreement, the Special Servicer shall not, on behalf of the Trust, obtain title
to a Mortgaged Property as a result of or in lieu of foreclosure or otherwise,
and shall not otherwise acquire possession of, or take any other action with
respect to, any Mortgaged Property, if, as a result of any such action the Trust
would be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of such Mortgaged Property within the meaning of
CERCLA, or any applicable comparable federal, state or local law, or a
"discharger" or "responsible party" thereunder, unless the Special Servicer has
also previously determined in accordance with the Servicing Standard, based on a
Phase I Environmental Report prepared by a Person (who may be an employee or
affiliate of the Master Servicer or the Special Servicer) who regularly conducts
environmental site assessments in accordance with the standards of FNMA in the
case of multi-family mortgage loans and customary servicing practices in the
case of commercial loans for environmental assessments, which report shall be
delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with
applicable Environmental Laws or, if not, after consultation with an
environmental expert that taking such actions as are necessary to bring the
Mortgaged Property in compliance therewith is reasonably likely to produce a
greater recovery on a net present value basis than not taking such actions; and
(ii) there are no circumstances or conditions present or
threatened at such Mortgaged Property relating to the use, management, disposal
or release of any hazardous substances, hazardous materials, hazardous wastes,
or petroleum-based materials for which investigation, testing, monitoring,
removal, clean-up or remediation could be required under any federal, state or
local law or regulation, or that, if any such materials are present for which
such action could be required, after consultation with an environmental expert
taking such actions with respect to the affected Mortgaged Property is
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions;
provided, however, that such compliance pursuant to clause (i) above or the
taking of such action pursuant to this clause (ii) shall only be required to the
extent that the cost thereof is a Servicing Advance of the Master Servicer
pursuant to this Agreement, subject to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report
contemplated by Section 9.12(c) may be treated as a Liquidation Expense, or in
the event the related Specially Serviced Mortgage Loan is not liquidated and a
Final Recovery Determination has not been made with respect to such Specially
Serviced Mortgage Loan, the Master Servicer shall treat such cost as a Servicing
Advance subject to the provisions of Section 4.4 hereof; provided that, in the
latter event, the Special Servicer shall use its good faith reasonable business
efforts to recover such cost from the Mortgagor in connection with the curing of
the default under the Specially Serviced Mortgage Loan.
(e) If the Special Servicer determines, pursuant to
Section 9.12(c), that taking such actions as are necessary to bring any
Mortgaged Property into compliance with applicable Environmental Laws, or taking
such actions with respect to the containment, removal, clean-up or remediation
of hazardous substances, hazardous materials, hazardous wastes, or
petroleum-based materials affecting any such Mortgaged Property, is not
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions, then the Special Servicer shall take such action
as it deems to be in the best economic interest of the Trust, including, without
limitation, releasing the lien of the related Mortgage. If the Special Servicer
determines that a material possibility exists that Liquidation Expenses with
respect to Mortgaged Property (taking into account the cost of bringing it into
compliance with applicable Environmental Laws) would exceed the principal
balance of the related Mortgage Loan, the Special Servicer shall not attempt to
bring such Mortgaged Property into compliance and shall not acquire title to
such Mortgaged Property unless it has received the written consent of the
Trustee to such action.
(f) The Special Servicer shall have the right to
determine, in accordance with the Servicing Standard, the advisability of
maintaining any action with respect to any Specially Serviced Mortgage Loan,
including, without limitation, any action to obtain a deficiency judgment with
respect to any Specially Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains,
through foreclosure on a Mortgage or otherwise, the right to receive title to a
Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine
when an Acquisition Date shall be deemed to occur under the REMIC Provisions
with respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust,
shall sell the REO Property expeditiously, but in any event within the time
period, and subject to the conditions, set forth in Section 9.15. Subject to
Section 9.15, the Special Servicer shall manage, conserve, protect and operate
the REO Property for the holders of beneficial interests in the Trust solely for
the purpose of its prompt disposition and sale.
SECTION 9.14 OPERATION OF REO PROPERTY.
(a) The Special Servicer shall segregate and hold all
funds collected and received in connection with the operation of each REO
Property separate and apart from its own funds and general assets and shall
establish and maintain with respect to each REO Property an account held in
trust for the benefit of the Certificateholders in the name of "The Chase
Manhattan Bank, as Trustee for the Holders of Morgan Stanley Capital I Inc.
Commercial Mortgage Pass-Through Certificates Series 1999-CAM1 [name of Property
Account]" (each, an "REO Account"), which shall be an Eligible Account. Amounts
in any REO Account shall be invested in Eligible Investments. The Special
Servicer shall deposit all funds received with respect to an REO Property in the
applicable REO Account on the Business Day following receipt. The Special
Servicer shall account separately for funds received or expended with respect to
each REO Property. All funds in each REO Account may be invested only in
Eligible Investments. The Special Servicer shall notify the Trustee and the
Master Servicer in writing of the location and account number of each REO
Account and shall notify the Trustee prior to any subsequent change thereof.
(b) On or before each Special Servicer Remittance Date,
the Special Servicer shall withdraw from each REO Account and deposit in the
Certificate Account, the REO Income received or collected during the Collection
Period immediately preceding such Special Servicer Remittance Date on or with
respect to the related REO Properties and reinvestment income thereon; provided,
however, that the Special Servicer may retain in such REO Account such portion
of such proceeds and collections as may be necessary to maintain in the REO
Account sufficient funds for the proper operation, management and maintenance of
the related REO Property, including, without limitation, the creation of
reasonable reserves for repairs, replacements, and necessary capital
improvements and other related expenses. The Special Servicer shall notify the
Master Servicer of all such deposits (and the REO Properties to which the
deposits relate) made into the Certificate Account.
(c) If the Trust acquires the Mortgaged Property, the
Special Servicer shall have full power and authority, in consultation with the
Operating Adviser, and subject to the specific requirements and prohibitions of
this Agreement, to do any and all things in connection therewith as are
consistent with the Servicing Standard, subject to the REMIC Provisions, and in
such manner as the Special Servicer deems to be in the best interest of the
Trust, and, consistent therewith, may advance from its own funds to pay for the
following items (which amounts shall be reimbursed by the Trust), to the extent
such amounts cannot be paid from REO Income:
(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 could result or have resulted in the imposition of a lien
thereon; and
(iii) all costs and expenses necessary to maintain,
operate, lease and sell such REO Property (other than capital expenditures);
(iv) Notwithstanding the above, the Special Servicer shall
pay for such items if, but only if, in the Special Servicer's good faith
reasonable business judgment, such amounts will be recoverable from (i) proceeds
received in respect of such REO Property prior to the final liquidation of such
REO Property or (ii) Liquidation Proceeds, subject to the provisions of Section
4.4 hereof.
(d) The Special Servicer may, and to the extent necessary
to (i) preserve the status of the REO Property as "foreclosure property" under
the REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall contract
with any Independent Contractor for the operation and management of the REO
Property, provided that:
(i) the terms and conditions of any such contract shall not
be inconsistent herewith;
(ii) the terms of such contract shall be consistent with
the provisions of Section 856 of the Code and Treasury Regulations Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any
such contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in connection
with the operation and management of such Mortgaged Property underlying the REO
Property and (B) deposit on a daily basis all amounts payable to the Trust in
accordance with the contract between the Trust and the Independent Contractor in
an Eligible Account;
(iv) none of the provisions of this Section 9.14 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 to the Trustee with respect to the operation and management of any
such REO Property;
(v) if the Independent Contractor is an Affiliate of the
Special Servicer, the consent of the Operating Adviser and a Nondisqualification
Opinion must be obtained; and
(vi) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for the Trust
pursuant to this subsection (d) for indemnification of the Special Servicer by
such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification. All fees of the Independent Contractor
(other than fees paid for performing services within the ordinary duties of a
Special Servicer which shall be paid by the Special Servicer) shall be paid from
the income derived from the REO Property. To the extent that the income from the
REO Property is insufficient, such fees shall be advanced as a Servicing
Advance, subject to the provisions of Section 4.4 hereof.
(e) Notwithstanding any other provision of this
Agreement, the Special Servicer shall not rent, lease, or otherwise earn income
on behalf of the Trust or the beneficial owners thereof with respect to REO
Property which might cause the REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (without giving
effect to the final sentence thereof) or result in the receipt by any REMIC of
any "income from nonpermitted assets" within the meaning of Section 860F(a)(2)
of the Code or any "net income from foreclosure property" which is subject to
tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer
have received an Opinion of Counsel (at the Trust's sole expense) to the effect
that, under the REMIC Provisions and any relevant proposed legislation, any
income generated for REMIC I by the REO Property would not result in the
imposition of a tax upon REMIC I or (ii) in accordance with the Servicing
Standard, the Special Servicer determines the income or earnings with respect to
such REO Property will offset any tax under the REMIC Provisions relating to
such income or earnings and will maximize the net recovery from the REO Property
to the Certificateholders. The Special Servicer shall notify the Trustee and the
Master Servicer of any election by it to incur such tax, and the Special
Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the
tax payable thereby from revenues collected from the related REO Property, (ii)
provide the Trustee with all information for the Trustee to file the necessary
tax returns in connection therewith and (iii) upon request by the Trustee, pay
from such account to the Trustee the amount of the applicable tax. The Trustee
shall file the applicable tax returns based on the information supplied by the
Special Servicer and pay the applicable tax from the amounts collected by the
Special Servicer.
(i) Subject to, and without limiting the generality of the
foregoing, the Special Servicer, on behalf of the Trust, shall not:
(ii) permit the Trust to enter into, renew or extend any
New Lease with respect to the REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(iii) permit any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real Property;
(iv) authorize or permit any construction on the REO
Property, other than the completion of a building or other improvement thereon,
and then only if more than ten percent of the construction of such building or
other improvement was completed before default on the Mortgage Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(v) directly operate, other than through an Independent
Contractor, or allow any other Person to directly operate, other than through an
Independent Contractor, the REO Property on any date more than 90 days after the
Acquisition Date; unless, in any such case, the Special Servicer has requested
and received an Opinion of Counsel at the Trust's sole expense to the effect
that such action will not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(without giving effect to the final sentence thereof) at any time that it is
held by the applicable REMIC Pool, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is
acquired by the Trust in respect of any Specially Serviced Mortgage Loan, the
deed or certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser and the
Trustee, shall use its reasonable best efforts to sell any REO Property in
accordance with the Servicing Standard, but prior to the end of the third
calendar year following the end of the year of its acquisition, but in any event
prior to the Final Rated Distribution Date, unless (i) the Trustee, on behalf of
the applicable REMIC Pool, has been granted an extension of time (an
"Extension") (which extension shall be applied for at least 60 days prior to the
expiration of the period specified above) by the Internal Revenue Service to
sell such REO Property, in which case the Special Servicer shall continue to
attempt to sell the REO Property for its fair market value for such period
longer than the period specified above as such Extension permits or (ii) the
Special Servicer seeks and subsequently receives, at the expense of the Trust, a
Nondisqualification Opinion, addressed to the Trustee and the Special Servicer,
to the effect that the holding by the Trust of such REO Property subsequent to
the period specified above after its acquisition will not result in the
imposition of taxes on "prohibited transactions" of a REMIC, as defined in
Section 860F(a)(2) of the Code, or cause any REMIC to fail to qualify as a REMIC
at any time that any Certificates are outstanding. If the Trustee has not
received an Extension or such Opinion of Counsel and the Special Servicer is not
able to sell such REO Property within the period specified above, or if an
Extension has been granted and the Special Servicer is unable to sell such REO
Property within the extended time period, the Special Servicer shall, after
consultation with the Operating Adviser and the Trustee, before the end of such
period or extended period, as the case may be, auction the REO Property to the
highest bidder (which may be the Special Servicer) in accordance with the
Servicing Standard; provided, however, that before an Interested Person may
purchase the REO Property, the Trustee must determine (with the aid of an
independent real estate adviser and an appraisal) what constitutes a fair price
and the Interested Person may not purchase the REO Property for less than such
price except as provided in Section 9.36; and provided, further, that if the
Special Servicer intends to bid on any REO Property, (i) the Special Servicer
shall notify the Trustee of such intent, (ii) the Trustee shall promptly obtain,
at the expense of the Trust an Appraisal of such REO Property and (iii) the
Special Servicer shall not bid less than the fair market value set forth in such
Appraisal. Neither any Seller nor the Depositor may purchase REO Property at a
price in excess of the fair market value thereof.
(b) Within 30 days of the sale of the REO Property, the
Special Servicer shall provide to the Trustee and the Master Servicer a
statement of accounting for such REO Property, including without limitation, (i)
the Acquisition Date for the REO Property, (ii) the date of disposition of the
REO Property, (iii) the sale price and related selling and other expenses, (iv)
accrued interest (including interest deemed to have accrued) on the Specially
Serviced Mortgage Loan to which the REO Property related, calculated from the
Acquisition Date to the disposition date, (v) final property operating
statements, and (vi) such other information as the Trustee may reasonably
request in writing.
(c) The Liquidation Proceeds from the final disposition
of the REO Property shall be deposited in the Certificate Account within one
Business Day of receipt.
(d) The Special Servicer shall provide the necessary
information to the Master Servicer to allow the Master Servicer to prepare,
deliver and file reports of foreclosure and abandonment in accordance with
Section 6050J and Section 6050P, if required, of the Code with respect to such
REO Property and shall deliver such information with respect thereto as the
Master Servicer or the Trustee may request in writing.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In connection
with the enforcement of the rights of the Trust to any property securing any
Specially Serviced Mortgage Loan other than the related Mortgaged Property, the
Special Servicer shall consult with counsel to determine how best to enforce
such rights in a manner consistent with the REMIC Provisions and shall not,
based on a Nondisqualification Opinion addressed to the Special Servicer and the
Trustee (the cost of which shall be an expense of the Trust) take any action
that could result in the failure of any REMIC Pool to qualify as a REMIC while
any Certificates are outstanding, unless such action has been approved by a vote
of 100% of each Class of Certificateholders (including the Class R-I, Class R-II
and Class R-III Certificateholders).
SECTION 9.17 SALE OF DEFAULTED MORTGAGE LOANS. In lieu of
exercising remedies pursuant to the terms of any Mortgage Loan and Mortgage, the
Special Servicer may sell a Specially Serviced Mortgage Loan that is a Defaulted
Mortgage Loan for cash in accordance with Section 9.36 hereof.
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
The Special Servicer shall deliver to the Depositor, the Paying Agent, the
Master Servicer, the Trustee and each Rating Agency on or before the Report Date
occurring in August of each year, commencing in August 2000, an Officer's
Certificate stating, as to the signer thereof, that (A) a review of the
activities of the Special Servicer during the preceding calendar year or portion
thereof and of the performance of the Special Servicer under this Agreement has
been made under such officer's supervision and (B) to the best of such officer's
knowledge, based on such review, the Special Servicer has fulfilled all its
obligations under this Agreement in all material respects throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof.
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT.
On or before March 15 of each year, beginning with March 15, 2000, the Special
Servicer at its expense shall cause a nationally recognized firm of Independent
public accountants (who may also render other services to the Special Servicer)
to furnish to the Trustee, the Depositor and each Rating Agency a statement to
the effect that such firm has examined certain documents and records relating to
the servicing of the Mortgage Loans under this Agreement or the servicing of
mortgage loans similar to the Mortgage Loans under substantially similar
agreements for the preceding 12 months and that the assertion of management of
the Special Servicer that it maintained an effective internal control system
over the servicing of such mortgage loans is fairly stated in all material
respects, based upon an examination conducted substantially in compliance with
USAP or the FHLMC Audit Program, which statement meets the standards applicable
to accountant's reports intended for general distribution; provided that the
Special Servicer shall not be required to cause the delivery of such statement
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 9.20 MERGER OR CONSOLIDATION. Any Person into which
the Special Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Special Servicer shall be a party, or any Person succeeding to substantially all
of the servicing business of the Special Servicer, shall be the successor of the
Special Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto; provided, however, that
each of the Rating Agencies provides written acknowledgment that its rating of
the Certificates in effect immediately prior to such merger, consolidation, or
succession will not be qualified or reduced as a result of such merger,
consolidation or succession. If the conditions to the proviso in the foregoing
sentence are not met, the Trustee may terminate the Special Servicer's servicing
of the Specially Serviced Mortgage Loans pursuant hereto, such termination to be
effected in the manner set forth in Section 9.31.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21,
the Special Servicer shall not resign from the obligations and duties hereby
imposed on it unless it determines that the Special Servicer's 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. Any such
determination permitting the resignation of the Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer, the Operating Adviser, and the Trustee at the expense of the Special
Servicer. No such resignation shall become effective until a successor servicer
designated by the Operating Adviser and the Trustee shall have (i) satisfied the
requirements that would apply pursuant to Section 9.20 hereof if a merger of the
Special Servicer had occurred, (ii) assumed the Special Servicer's
responsibilities and obligations under this Agreement and (iii) Rating Agency
Confirmation shall have been obtained. Notice of such resignation shall be given
promptly by the Special Servicer to the Master Servicer and the Trustee.
(b) The Special Servicer may resign from the obligations
and duties hereby imposed on it, upon thirty days' notice to the Trustee,
provided that (i) a successor Special Servicer is (x) available, (y) reasonably
acceptable to the Operating Adviser, the Depositor, and the Trustee, and (z)
willing to assume the obligations, responsibilities and covenants to be
performed hereunder by the Special Servicer on substantially the same terms and
conditions, and for not more than equivalent compensation as that herein
provided, (ii) the successor Special Servicer has assets of at least $15,000,000
and (iii) Rating Agency Confirmation is obtained with respect to such
resignation, as evidenced by a letter from each Rating Agency delivered to the
Trustee. Any costs of such resignation and of obtaining a replacement Special
Servicer shall be borne by the Special Servicer and shall not be an expense of
the Trust.
(c) No such resignation under paragraph (B) above shall
become effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the Special Servicer hereunder in form and substance
reasonably satisfactory to the Trustee.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL
SERVICER. The Special Servicer shall have the right without the prior written
consent of the Trustee to delegate or subcontract with or authorize or appoint
anyone, or delegate certain duties to other professionals such as attorneys and
appraisers, as an agent of the Special Servicer or Sub-Servicers (to the extent
provided in Section 9.3) to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Special Servicer hereunder.
In no case, however, shall any such delegation or subcontracting to an Affiliate
of the Special Servicer relieve the Special Servicer of any responsibility,
obligation or liability hereunder. Except as expressly provided herein including
Section 9.3, the Special Servicer shall not assign or transfer any of its
rights, benefits or privileges hereunder to any other Person, or delegate to or
subcontract with, or authorize or appoint any other Person to perform any of the
duties, covenants or obligations to be performed by the Special Servicer
hereunder; provided that the Special Servicer shall have the right without the
prior written consent of the Trustee to delegate or assign to or subcontract
with or authorize or appoint an Affiliate of the Special Servicer to perform and
carry out any duties, covenants or obligations to be performed and carried out
by the Special Servicer hereunder provided that (i) the Special Servicer gives
the Depositor, the Master Servicer and the Trustee notice of such assignment and
delegation; (ii) such purchaser or transferee accepting such assignment and
delegation executes and delivers to the Depositor and the Trustee an agreement
accepting such assignment, which contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Special Servicer, with like effect as if originally named as a party to this
Agreement; (iii) the purchaser or transferee has assets in excess of
$15,000,000; and (iv) such assignment and delegation is the subject of a Rating
Agency Confirmation. Notwithstanding the above, the Special Servicer may appoint
Sub-Servicers in accordance with Section 9.3 hereof. In no case, however, shall
any such delegation, subcontracting or assignment to an Affiliate of the Special
Servicer relieve the Special Servicer of any responsibility, obligation or
liability hereunder. Notice of any such permitted assignment or delegation shall
be given promptly by the Special Servicer to the Master Servicer and the
Trustee, and any cost thereof shall be borne by the Special Servicer.
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER
AND OTHERS.
(a) Neither the Special Servicer nor any of the
directors, officers, employees or agents of the Special Servicer shall be under
any liability to the Certificateholders or the Trustee for any action taken or
for refraining from the taking of any action in good faith and using reasonable
business judgment; provided that this provision shall not protect the Special
Servicer or any such person against any breach of a representation or warranty
contained herein or any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer and any director, officer, employee or agent of
the Special Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person (including, without
limitation, the information and reports delivered by or at the direction of the
Master Servicer or any director, officer, employee or agent of the Master
Servicer) respecting any matters arising hereunder. The Special Servicer shall
not be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties to service the Specially Serviced Mortgage
Loans in accordance with this Agreement; provided that the Special Servicer may
in its sole discretion undertake any such action which it may reasonably deem
necessary or desirable in order to protect the interests of the
Certificateholders and the Trustee in the Specially Serviced Mortgage Loans, or
shall undertake any such action if instructed to do so by the Trustee. In such
event, all legal expenses and costs of such action (other than those that are
connected with the routine performance by the Special Servicer of its duties
hereunder) shall be expenses and costs of the Trust, and the Special Servicer
shall be entitled to be reimbursed therefor as provided by Section 5.2 hereof.
Notwithstanding any term in this Agreement, the Special Servicer shall not be
relieved from liability to, or entitled to indemnification from, the Trust for
any action taken by it at the direction of the Operating Adviser which is in
conflict with the Servicing Standard.
(b) In addition, the Special Servicer shall have no
liability with respect to, and shall be entitled to conclusively rely on as to
the truth of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Special Servicer and conforming to the
requirements of this Agreement. Neither the Special Servicer, nor any director,
officer, employee, agent or Affiliate, shall be personally liable for any error
of judgement made in good faith by any officer, unless it shall be proved that
the Special Servicer or such officer was negligent in ascertaining the pertinent
facts. Neither the Special Servicer, nor any director, officer, employee, agent
or Affiliate, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement. The Special
Servicer shall be entitled to rely on reports and information supplied to it by
the Master Servicer and the related Mortgagors and shall have no duty to
investigate or confirm the accuracy of any such report or information.
(c) The Special Servicer shall not be obligated to incur
any liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Master Servicer or Trustee in this Agreement. The Trust shall
indemnify and hold harmless the Special Servicer from any and all claims,
liabilities, costs, charges, fees or other expenses which relate to or arise
from any such breach of representation, warranty or covenant to the extent such
amounts are not recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be protected
in acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed or in good faith believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Special Servicer shall not be personally liable
for any action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion, rights or powers conferred upon it by
this Agreement; and
(iv) the Special Servicer, in preparing any reports
hereunder, may rely, and shall be protected in acting or refraining from acting
upon any information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper reasonably believed or in
good faith believed by it to be genuine and provided by any Mortgagor or manager
of a Mortgaged Property.
(e) The Special Servicer and any director, officer,
employee or agent of the Special Servicer shall be indemnified by the Trustee
and held harmless against any loss, liability or expense including reasonable
attorneys' fees incurred in connection with any legal action relating to the
Trustee's respective willful misfeasance, bad faith or negligence in the
performance of its respective duties hereunder or by reason of negligent
disregard by such Person of its respective duties hereunder, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of any of the Special Servicer's duties
hereunder or by reason of negligent disregard of the Special Servicer's
obligations and duties hereunder. The Special Servicer shall promptly notify the
Trustee if a claim is made by a third party entitling the Special Servicer to
indemnification hereunder, whereupon the Trustee shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Special Servicer). Any
failure to so notify the Trustee shall not affect any rights the Special
Servicer may have to indemnification hereunder or otherwise, unless the interest
of the Trustee is materially prejudiced thereby. The indemnification provided
herein shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Special
Servicer hereunder. Any payment hereunder made by the Trustee pursuant to this
paragraph to the Special Servicer shall be paid from the Trustee's own funds,
without reimbursement from the Trust therefor, except achieved through
subrogation as provided in this Agreement.
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any director, officer,
employee or agent of the Special Servicer shall be indemnified by the Trust, and
held harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action relating to (i) this
Agreement, and (ii) any action taken by the Special Servicer in accordance with
the instruction delivered in writing to the Special Servicer by the Trustee or
the Master Servicer pursuant to any provision of this Agreement in each case and
the Special Servicer and each of its directors, officers, employees and agents
shall be entitled to indemnification from the Trust for any loss, liability or
expense (including attorney's fees) incurred in connection with the provision by
the Special Servicer of any information included by the Special Servicer in the
report required to be provided by the Special Servicer pursuant to this
Agreement, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer shall promptly notify the Trustee if a claim is
made by a third party with respect hereto or the Specially Serviced Mortgage
Loans entitling the Special Servicer to indemnification hereunder, whereupon the
Trustee shall assume the defense of any such claim (with counsel reasonably
satisfactory to the Special Servicer) and the Trust shall pay, from amounts on
deposit in the Certificate Account pursuant to Section 5.2, all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee shall not affect any
rights the Special Servicer may have to indemnification hereunder or otherwise,
unless the interest of the Trust is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the termination or resignation of the Special Servicer. Any expenses
incurred or indemnification payments made by the Special Servicer shall be
reimbursed by the party responsible, or if not recovered by the Special Servicer
from such Person, then by the Trust, if a court of competent jurisdiction makes
a final, non-appealable judgment that the conduct of the Special Servicer was
not culpable.
(b) The Special Servicer agrees to indemnify the Trust,
and the Trustee, the Depositor, the Master Servicer and any director, officer,
employee or agent or Controlling Person of the Trustee, the Depositor and the
Master Servicer, and hold them harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and any
other costs, liabilities, fees and expenses that the Trust or the Trustee, the
Depositor or the Master Servicer may sustain arising from or as a result of the
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder by the Special Servicer. The Trustee, the Depositor or the Master
Servicer shall immediately notify the Special Servicer if a claim is made by a
third party with respect to this Agreement or the Specially Serviced Mortgage
Loans entitling the Trust or the Trustee, the Depositor or the Master Servicer,
as the case may be, to indemnification hereunder, whereupon the Special Servicer
shall assume the defense of any such claim (with counsel reasonably satisfactory
to the Trustee, the Depositor or the Master Servicer, as the case may be) and
pay all expenses in connection therewith, including counsel fees, and promptly
pay, discharge and satisfy any judgment or decree which may be entered against
it or them in respect of such claim. Any failure to so notify the Special
Servicer shall not affect any rights the Trust or the Trustee, the Depositor or
the Master Servicer may have to indemnification under this Agreement or
otherwise, unless the Special Servicer's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of the Special
Servicer or the Trustee. Any expenses incurred or indemnification payments made
by the Special Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final, non-appealable judgment that the conduct
of the Special Servicer was not culpable or found to have acted with willful
misfeasance, bad faith or negligence.
(c) The initial Special Servicer and the Depositor
expressly agree that the only information furnished by or on behalf of the
Special Servicer for inclusion in the Prospectus Supplement is the information
set forth in the first three paragraphs under the caption "SERVICING OF THE
MORTGAGE LOANS -- The Master Servicer" and the first two paragraphs under the
caption "SERVICING OF THE MORTGAGE LOANS - The Special Servicer" of the
Preliminary Prospectus Supplement and Final Prospectus Supplement.
SECTION 9.25 [RESERVED.]
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The
Special Servicer or any agent of the Special Servicer (if the Special Servicer
is not Conning Asset Management Company unless Conning Asset Management Company
acquires the Certificates at the then fair market value of such Certificates) in
its individual capacity or in any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if they were not the
Special Servicer or such agent. Any such interest of the Special Servicer or
such agent in the Certificates shall not be taken into account when evaluating
whether actions of the Special Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions may
have the effect of benefiting the Class or Classes of Certificates owned by the
Special Servicer.
SECTION 9.27 TAX REPORTING. From and after the Closing Date,
the Special Servicer shall provide the necessary information to the Master
Servicer to allow the Master Servicer to comply with the Mortgagor tax reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code with respect
to any Specially Serviced Mortgage Loan. The Special Servicer shall provide to
the Master Servicer copies of any such reports. The Master Servicer shall
forward such reports to the Trustee.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated
that the Master Servicer will be collecting all payments with respect to the
Mortgage Loans (other than payments with respect to REO Income). If, however,
the Special Servicer should receive any payments with respect to any Mortgage
Loan (other than REO Income) it shall, within one Business Day of receipt from
the Mortgagor or otherwise of any amounts attributable to payments with respect
to or the sale of any Mortgage Loan or any Specially Serviced Mortgage Loan, if
any, (but not including REO Income, which shall be deposited in the applicable
REO Account as provided in Section 9.14 hereof), either, (i) forward such
payment (endorsed, if applicable, to the order of the Master Servicer), to the
Master Servicer, or (ii) deposit such amounts, or cause such amounts to be
deposited, in the Certificate Account. The Special Servicer shall notify the
Master Servicer of each such amount received on or before the date required for
the making of such deposit or transfer, as the case may be, indicating the
Mortgage Loan or Specially Serviced Mortgage Loan to which the amount is to be
applied and the type of payment made by or on behalf of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS. The Special
Servicer shall act in accordance with this Agreement and the provisions of the
Code relating to REMICs in order to create or maintain the status of any REMIC
Pool as a REMIC under the Code or, as appropriate, adopt a plan of complete
liquidation. The Special Servicer shall not take any action or cause any REMIC
to take any action that would (i) endanger the status of any REMIC as a REMIC
under the Code or (ii) subject to Section 9.14(e), result in the imposition of a
tax upon any REMIC (including, but not limited to, the tax on prohibited
transactions as defined in Code Section 860F(a)(2) or on prohibited
contributions pursuant to Section 860G(d)) unless the Master Servicer and the
Trustee have received a Nondisqualification Opinion (at the expense of the party
seeking to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such tax. The Special
Servicer shall comply with the provisions of Article XII hereof.
SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special
Servicer created hereby (other than the obligation of the Special Servicer to
make payments to the Master Servicer as set forth in Section 9.28 and the
obligations of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof)
shall terminate on the date which is (i) the later of (A) the final payment or
other liquidation of the last Mortgage Loan remaining outstanding or, (B) the
disposition of all REO Property in respect of any Specially Serviced Mortgage
Loan, (ii) if an event described in Section 9.30(b)(ii), (iii) or (iv) or
Section 9.30(c) has occurred, 60 days following the date on which the Trustee or
the Operating Adviser has given written notice to the Special Servicer that the
Special Servicer is terminated, (iii) if an event described in Section
9.30(b)(i), (v), (vi) or (vii) has occurred, immediately upon the date on which
the Trustee or the Depositor gives written notice to the Special Servicer that
the Special Servicer is terminated and (iv) the effective date of any
resignation of the Special Servicer effected pursuant to and in accordance with
Section 9.21.
(b) The Trustee, by providing notice to the Special
Servicer, (i) may elect to terminate the Special Servicer and (ii) shall elect
to terminate the Special Servicer if holders of Certificates representing more
than 25% of the Certificate Balance of all Certificates so direct the Trustee,
in the event that
(i) the Special Servicer has failed to remit to the Trustee
or the Master Servicer when due any amount required to be so remitted under the
terms of this Agreement;
(ii) any failure on the part of the Special Servicer duly
to observe or perform in any material respect any other of the covenants or
agreements on the part of the Special Servicer contained in this Agreement which
continues unremedied for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Special Servicer by the Depositor or the Trustee; provided, however, that
to the extent that the Special Servicer certifies to the Trustee and the
Depositor that the Special Servicer is in good faith attempting to remedy such
failure and the Certificateholders shall not be materially and adversely
affected thereby, such cure period will be extended for up to an additional 60
days;
(iii) any breach by the Special Servicer of the
representations and warranties contained in this Agreement that materially and
adversely affects the interests of the holders of any Class of Certificates and
that continues unremedied for a period of 30 days after the date on which notice
of such breach, requiring the same to be remedied, shall have been given to the
Special Servicer by the Depositor or the Trustee, provided, however, that to the
extent that the Special Servicer is in good faith attempting to remedy such
breach and the Certificateholders shall not be materially and adversely affected
thereby, such cure period may be extended for up to an additional 60 days;
(iv) the Trustee shall receive notice from Fitch IBCA to
the effect that the continuation of the Special Servicer in such capacity would
result in the downgrade or withdrawal of any rating then assigned by Fitch IBCA
to any Class of Certificates or if the Special Servicer is not an "approved"
special servicer by S&P;
(v) 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 Special Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days;
(vi) the Special Servicer 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 the Special Servicer or of
or relating to all or substantially all of its property; or
(vii) the Special Servicer's having admitted 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. Such termination shall be effective on the date after the date of any
of the above events that the Trustee specifies in a written notice to the
Special Servicer specifying the reason for such termination.
(c) The Operating Adviser shall have the right to direct
the Trustee to terminate the Special Servicer, provided that the Operating
Adviser shall appoint a successor Special Servicer who will (i) be reasonably
satisfactory to the Trustee and to the Depositor, and (ii) execute and deliver
to the Trustee an agreement, in form and substance reasonably satisfactory to
the Trustee, whereby the successor Special Servicer agrees to assume and perform
punctually the duties of the Special Servicer specified in this Agreement; and
provided, further, that the Trustee shall have received Rating Agency
Confirmation from each Rating Agency prior to the termination of the Special
Servicer. The Special Servicer shall not be terminated pursuant to this
subsection (c) until a successor Special Servicer shall have been appointed.
All costs of the Trust in connection with such a termination
of the Special Servicer will be paid by the Operating Adviser.
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of
Section 9.30(a), specifying the Distribution Date upon which the final
distribution shall be made, shall be given promptly by the Special Servicer to
the Trustee no later than the later of (i) five Business Days after the final
payment or other liquidation of the last Mortgage Loan or (ii) the sixth day of
the month in which the final Distribution Date will occur. Upon any such
termination, the duties of the Special Servicer (other than the obligations of
the Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall terminate
and the Special Servicer shall transfer to the Master Servicer the amounts
remaining in each REO Account and shall thereafter terminate each REO Account
and any other account or fund maintained with respect to the Specially Serviced
Mortgage Loans.
(b) On the date specified in a written notice of
termination given to the Special Servicer pursuant to clause (ii) of Section
9.30(a), all authority, power and rights of the Special Servicer under this
Agreement, whether with respect to the Specially Serviced Mortgage Loans or
otherwise, shall terminate; provided, that in no event shall the termination of
the Special Servicer be effective until the Trustee or other successor Special
Servicer shall have succeeded the Special Servicer as successor Special
Servicer, notified the Special Servicer of such designation, and such successor
Special Servicer shall have assumed the Special Servicer's obligations and
responsibilities, as set forth in an agreement substantially in the form hereof,
with respect to the Specially Serviced Mortgage Loans (or, in the case of the
Trustee succeeding to the rights, powers, responsibilities and obligations of
the Special Servicer, pursuant to this Agreement). The Trustee or other
successor Special Servicer may not succeed the Special Servicer as Special
Servicer until and unless it has satisfied the provisions that would apply to a
Person succeeding to the business of the Special Servicer pursuant to Section
9.20 hereof. Notwithstanding the foregoing sentence, in the event that the
Special Servicer is terminated as a result of an event described in Section
9.30(b)(i), (v), (vi) or (vii), the Trustee shall act as successor special
servicer immediately upon delivery of a notice of termination to the Special
Servicer and shall use its best efforts within 90 days of assuming the duties of
the Special Servicer, either to satisfy the conditions of Section 9.20 hereof or
to transfer the duties of the Special Servicer to a successor special servicer
who has satisfied such conditions. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Special Servicer, 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 Special Servicer agrees to
cooperate with the Trustee in effecting the termination of the Special
Servicer's responsibilities and rights hereunder as Special Servicer including,
without limitation, providing the Trustee all documents and records in
electronic or other form reasonably requested by it to enable the successor
Special Servicer designated by the Trustee to assume the Special Servicer's
functions hereunder and to effect the transfer to such successor for
administration by it of all amounts which shall at the time be or should have
been deposited by the Special Servicer in any REO Account and any other account
or fund maintained or thereafter received with respect to the Specially Serviced
Mortgage Loans.
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced
Mortgage Loan, shall provide to the Master Servicer and the Trustee on or prior
to the Determination Date for each month, a Special Servicer Monthly Report
substantially in the form of Exhibit O or in such electronic format as is
mutually acceptable to the Master Servicer, the Trustee and the Special
Servicer. The Master Servicer and the Trustee may use such reports or
information contained therein to prepare its reports and the Master Servicer
may, at its option, forward such Special Servicer Monthly Reports directly to
the Depositor and the Rating Agencies. The Special Servicer Monthly Report shall
be substantially in the form of Exhibit O and shall contain a narrative
description for each Specially Serviced Mortgage Loan of the current status of
such Loan including the status of any workout or foreclosure, the change in such
status since the prior Special Servicer Monthly Report, and other information
described in Exhibit O.
(b) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination with
respect to any Specially Serviced Mortgage Loan or REO Property and the basis
thereof. Each Final Recovery Determination shall be evidenced by an Officer's
Certificate delivered to the Trustee, the Master Servicer and the Rating
Agencies no later than the tenth Business Day following such Final Recovery
Determination.
(c) The Special Servicer shall provide to the Master
Servicer at the reasonable request in writing of the Master Servicer any
information in its possession with respect to the Specially Serviced Mortgage
Loans which the Master Servicer shall require in order for the Master Servicer
to comply with its obligations under this Agreement; provided that the Special
Servicer shall not be required to take any action or provide any information
that the Special Servicer determines will result in any material cost or expense
to which it is not entitled to reimbursement hereunder or will result in any
material liability for which it is not indemnified hereunder. The Master
Servicer will provide the Special Servicer at the request of the Special
Servicer any information in its possession with respect to the Mortgage Loans
which the Master Servicer shall require in order for the Special Servicer to
comply with its obligations under this Agreement.
(d) Not later than 20 days after each Special Servicer
Remittance Date, the Special Servicer shall forward to the Master Servicer a
statement setting forth the status of each REO Account as of the close of
business on such Special Servicer Remittance Date, stating that all remittances
required to be made by it as required by this Agreement to be made by the
Special Servicer have been made (or, if any required distribution has not been
made by the Special Servicer, specifying the nature and status thereof) and
showing, for the period from the day following the preceding Special Servicer
Remittance Date to such Special Servicer Remittance Date, the aggregate of
deposits into and withdrawals from each REO Account for each category of deposit
specified in Section 5.1 of this Agreement and each category of withdrawal
specified in Section 5.2 of this Agreement.
(e) The Special Servicer shall use reasonable efforts to
obtain and, to the extent obtained, to deliver to the Master Servicer, the
Operating Adviser and the Rating Agencies, on or before April 15 of each year,
commencing with April 15, 2000, (i) copies of the prior year operating
statements and quarterly statements, if available, for each Mortgaged Property
underlying a Specially Serviced Mortgage Loan or REO Property as of its fiscal
year end, provided that either the related Mortgage Note or Mortgage requires
the Mortgagor to provide such information, or if the related Mortgage Loan has
become an REO Property, (ii) a copy of the most recent rent roll available for
each Mortgaged Property, and (iii) a table, setting forth the Debt Service
Coverage Ratio and occupancy with respect to each Mortgaged Property covered by
the operating statements delivered above.
(f) The Special Servicer shall deliver to the Master
Servicer, the Depositor, the Trustee and the Rating Agencies all such other
information with respect to the Specially Serviced Mortgage Loans at such times
and to such extent as the Master Servicer, the Trustee or Depositor may from
time to time reasonably request; provided, however, that the Special Servicer
shall not be required to produce any ad hoc non-standard written reports with
respect to such Mortgage Loans except if any Person (other than the Trustee)
requesting such report pays a reasonable fee to be determined by the Special
Servicer.
(g) The Special Servicer shall deliver a written
Inspection Report of each Specially Serviced Mortgage Loan in accordance with
Section 9.4(b).
(h) The Special Servicer shall provide as soon as
practicable after a Mortgage Loan becomes a Specially Serviced Mortgage Loan, to
the Master Servicer its estimate of the net recoverable amount to the
Certificateholders and anticipated expenses in connection therewith (and a
general description of the plan to achieve such recovery) of such Specially
Serviced Mortgage Loan and other information reasonably requested by the Master
Servicer. The Special Servicer shall update such information on a quarterly
basis.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER
SERVICER.
(a) The Special Servicer shall furnish on a timely basis
such reports, certifications, and information as are reasonably requested by the
Master Servicer to enable it to perform its duties under this Agreement;
provided that no such request shall (i) require or cause the Special Servicer to
violate the Code, any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the servicing standards set
forth in this Agreement and to maintain the REMIC status of any REMIC Pool or
(ii) expose the Special Servicer, the Trust or the Trustee to liability or
materially expand the scope of the Special Servicer's responsibilities under
this Agreement. In addition, the Special Servicer shall notify the Master
Servicer of all expenditures incurred by it with respect to the Specially
Serviced Mortgage Loans which are required to be made by the Master Servicer as
Servicing Advances as provided herein, subject to the provisions of Section 4.4
hereof. The Special Servicer shall also remit all invoices relating to Servicing
Advances promptly upon receipt of such invoices.
(b) The Special Servicer shall from time to time make
reports, recommendations and analyses to the Operating Adviser with respect to
the following matters, the expense of which shall be charged to the Operating
Adviser, but in no event shall such costs be an expense of the Trust:
(i) whether the foreclosure of a Mortgaged Property
relating to a Specially Serviced Mortgage Loan would be in the best economic
interest of the Trust;
(ii) if the Special Servicer elects to proceed with a
foreclosure, whether a deficiency judgment should or should not be sought
because the likely recovery will or will not be sufficient to warrant the cost,
time and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any
"due-on-sale" clause or "due-on-encumbrance" clause contained in a Specially
Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption
agreement from or with a person to whom a Mortgaged Property securing a
Specially Serviced Mortgage Loan has been or is about to be conveyed, or to
release the original Mortgagor from liability upon a Specially Serviced Mortgage
Loan and substitute a new Mortgagor, and whether the credit status of the
prospective new Mortgagor is in compliance with the Special Servicer's regular
commercial mortgage origination or servicing standard;
(v) in connection with the foreclosure on a Specially
Serviced Mortgage Loan secured by a Mortgaged Property which is not in
compliance with CERCLA, or any comparable environmental law, whether it is in
the best economic interest of the Trust to bring the Mortgaged Property into
compliance therewith and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which shall
include any proposed release, substitution or addition of collateral),
extension, waiver, amendment, discounted payoff or sale of a Specially Serviced
Mortgage Loan, prepare a summary of such proposed action and an analysis of
whether or not such action is reasonably likely to produce a greater recovery on
a present value basis than liquidation of such Specially Serviced Mortgage Loan;
such analysis shall specify the basis on which the Special Servicer made such
determination, including the status of any existing material default or the
grounds for concluding that a payment default is imminent.
SECTION 9.34 [RESERVED.]
SECTION 9.35 [RESERVED.]
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS AND REO
PROPERTIES.
(a) Any of the Master Servicer, the Special Servicer and
any holder of Certificates evidencing a majority interest in the Controlling
Class has the right to purchase from the Trust, at the applicable Purchase
Price, those defaulted Mortgage Loans that are at least 60 days delinquent and
which the Special Servicer has determined, in its reasonable good faith
judgment, in accordance with the Servicing Standard, will become the subject of
foreclosure proceedings (other than any such Mortgage Loan that it determines,
in its reasonable good faith judgment, in accordance with the Servicing
Standard, is in default to avoid a prepayment restriction).
The Special Servicer may, after providing notice to the
Operating Adviser and the Trustee, subject to the limitations in paragraph (d)
below, offer to sell for cash to any Person, for an amount equal to the Purchase
Price therefor, any REO Property or Defaulted Mortgage Loan not otherwise
purchased pursuant to the prior paragraph (other than any such Mortgage Loan
that it determines, in its reasonable and good faith judgment, in accordance
with the Servicing Standard, is in default to avoid a prepayment restriction),
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 Trust;
provided, that with respect to the Mortgage Loans identified as Loan Number 38
and 55, such action of the Special Servicer shall be limited by the right of the
ground lessor of the related Mortgaged Property to purchase the related Mortgage
Loan pursuant to the provisions of such Mortgage Loan. In the case of REO
Property, the Special Servicer shall offer to sell such REO Property no later
than the time determined by the Special Servicer to be sufficient to result in
the sale of such REO Property on or prior to the date specified in Section 9.15
and in any event prior to the Final Rated Distribution Date. The Special
Servicer shall give the Operating Adviser, the Master Servicer and the Trustee
not less than five days' prior written notice of its intention to sell any such
Defaulted Mortgage Loan or REO Property, and in respect of such sale, the
Special Servicer shall offer such Defaulted Mortgage Loan or REO Property in a
commercially reasonable manner for a period of not less than 30 days.
Unless the Special Servicer determines that acceptance, in
accordance with the Servicing Standard, of any offer would not be in the best
economic interests of the Trust, the Special Servicer shall accept the highest
cash offer received from any person that constitutes a fair price (which may be
less than the Purchase Price) for such Defaulted Mortgage Loan or REO Property.
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 any REO Property.
In addition, the Special Servicer may accept a lower bid
(including a bid lower than the Purchase Price) of a Person other than an
Interested Person or the Operating Adviser, if any, if it determines, in
accordance with the Servicing Standard, that acceptance of such bid would be in
the best interests of the Certificateholders (for example, if the prospective
buyer making the lower bid is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower bid are more favorable),
provided, that if any Defaulted Mortgage Loan or REO Property as to which an
Appraisal Reduction has occurred is to be sold by the Special Servicer, the
Special Servicer shall notify the Operating Adviser, if any, before it accepts
any bid for such loan or property that is less than 90% of the appraised value
of the related Mortgaged Property (based on the appraisal used in determining
the related Appraisal Reduction). The Special Servicer, after notice to the
Operating Adviser, if any, shall determine no later than six months prior to the
end of the third calendar year referred in Section 9.15 with respect to any REO
Property whether a sale of such REO Property pursuant to any bids being made
with respect thereto is in the best economic interests of the Certificateholders
as a whole. If the Special Servicer so determines in accordance with the
Servicing Standard after notice to the Operating Adviser, if any, that such a
sale would not be in the best interests of the Certificateholders, the Special
Servicer shall seek an extension of such period in the manner described in
Section 9.15.
With respect to whether any bid received from an Interested
Person or whether the price to be paid by the Special Servicer or any Affiliate
thereof represents a fair price or market value for any Defaulted Mortgage Loan
or any REO Property, the Special Servicer is required to request that the
Trustee make a determination as to whether such bid constitutes a fair price.
Upon request of the Special Servicer for such a determination, the Trustee will,
within a reasonable period of time, make such a determination which it will base
upon an Appraisal of such REO Property by an Independent MAI-designated
appraiser selected by the Trustee at the expense of the Trust. In determining
whether any bid constitutes a fair price or market value for any Defaulted
Mortgage Loan or any REO Property, the Special Servicer shall take into account,
among other factors, the period and amount of any delinquency on the affected
Defaulted Mortgage Loan, the physical condition of the related Mortgaged
Property or such REO Property, the state of the local economy and the Trust's
obligation to dispose of any REO Property prior to the end of the third calendar
year referred to in Section 9.15.
(b) Subject to the REMIC Provisions, the Special Servicer
shall act on behalf of the Trust in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Defaulted Mortgage
Loan or REO Property, including the collection of all amounts payable in
connection therewith. Any sale of a Defaulted Mortgage Loan or REO Property
shall be without recourse to, or representation or warranty by, the Trustee, the
Depositor, the Special Servicer, the Master Servicer, or the Trust.
Notwithstanding the foregoing, nothing herein shall limit the liability of the
Master Servicer, the Special Servicer or the Trustee to the Trust and the
Certificateholders for failure to perform its duties in accordance herewith.
None of the Special Servicer, the Master Servicer, the Depositor, or the Trustee
shall have any liability to the Trust or any Certificateholder with respect to
the price at which a Defaulted Mortgage Loan is sold if the sale is consummated
in accordance with the terms of this Agreement.
(c) The proceeds of any sale after deduction of the
expenses of such sale incurred in connection therewith shall be deposited within
one Business Day in the Certificate Account.
(d) Notwithstanding anything herein to the contrary, the
Special Servicer shall not be required to take or refrain from taking any action
pursuant to instructions from the Operating Adviser that would cause it to
violate any term or provision of this Agreement, including the REMIC Provisions
and the Servicing Standard.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the
Certificateholders representing more than 50% of the Certificate Balance of the
Certificates of the then Controlling Class may elect the operating adviser (the
"Operating Adviser"). The Operating Adviser shall be elected for the purpose of
receiving reports and information from the Special Servicer in respect of the
Specially Serviced Mortgage Loans.
(b) An election of an Operating Adviser also shall be
held upon the resignation or removal of the Person acting as Operating Adviser.
Notice of the meeting of the Holders of the Controlling Class shall be mailed or
delivered to each Holder by the Trustee, at the direction of the Trustee not
less than 10 nor more than 60 days prior to the meeting (at the sole expense of
the Operating Adviser). The notice shall state the place and the time of the
meeting, which may be held by telephone. A majority of Certificate Balance of
the Certificates of the then Controlling Class, present in person or represented
by proxy, shall constitute a quorum for the nomination of an Operating Adviser.
At the meeting, each Holder shall be entitled to nominate one Person to act as
Operating Adviser. The Trustee shall cause the election of the Operating Adviser
to be held as soon thereafter as is reasonably practicable.
(c) Each Holder of the Certificates of the Controlling
Class shall be entitled to vote in each election of the Operating Adviser. The
voting in each election of the Operating Adviser shall be in writing mailed,
telecopied, delivered or sent by courier and actually received by the Trustee on
or prior to the date of such election. Immediately upon receipt by the Trustee
of votes (which have not been rescinded) from the Holders of Certificates
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class which are cast for a single Person, such Person shall be,
upon such Person's acceptance, the Operating Adviser. The Trustee shall promptly
notify the Master Servicer of the identity of the Operating Advisor. Until an
Operating Advisor is elected or in the event that an Operating Adviser shall
have resigned or been removed and a successor Operating Adviser shall not have
been elected, there shall be no Operating Adviser.
(d) The Operating Adviser may be removed at any time by
the written vote, copies of which must be delivered to the Trustee, of more than
50% of the Certificate Balance of the Holders of the Certificates of the then
Controlling Class.
(e) The Trustee shall act as judge of each election and,
absent manifest error, the determination of the results of any election by the
Trustee shall be conclusive. Notwithstanding any other provisions of this
Section 9.37, the Trustee may make such reasonable regulations as it may deem
advisable for any election.
(f) Notwithstanding any provision of this Section 9.37 or
any other provision of this Agreement to the contrary, at any time that the
Special Servicer has been elected as Operating Adviser or no Operating Adviser
has been elected, (i) the Special Servicer shall not be required to deliver
notices or information to, or obtain the consent or approval of, the Operating
Adviser and (ii) to the extent any Person other than the Special Servicer is
otherwise required hereunder to provide notices or information to, or obtain the
consent or approval of, the Operating Adviser, such Person shall be required to
provide such notices or information to, or obtain the consent or approval of,
the Special Servicer.
(g) All expenses of the Operating Adviser will be paid by
the Controlling Class.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The
Operating Adviser shall have no liability to the Trust or the Certificateholders
for any action taken, or for refraining from the taking of any action, in good
faith and using reasonable business judgment pursuant to this Agreement, or
using reasonable business judgment. By its acceptance of a Certificate, each
Certificateholder (and Certificate Owner) confirms its understanding that the
Operating Adviser may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that the
Operating Adviser may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates and each
Certificateholder (and Certificate Owner) agrees to take no action against the
Operating Adviser based upon such special relationship or conflict.
Notwithstanding any term in this Agreement, the Special Servicer shall not be
entitled to indemnification from the Trust for any action taken by it at the
direction of the Operating Adviser which is in conflict with the Servicing
Standard.
SECTION 9.39 DUTIES OF OPERATING ADVISER. The Operating
Adviser may advise, and receive notice from, the Special Servicer, but is not
required to do so on any of the following actions:
(i) any foreclosure upon or comparable conversion (which
may include acquisition of an REO Property) of the ownership of properties
securing such of the Specially Serviced Mortgage Loans as come into and continue
in default;
(ii) any modification of a Money Term of a Mortgage Loan
other than a modification consisting of the extension of the original Maturity
Date of a Mortgage Loan for two years or less;
(iii) any proposed sale of a Defaulted Mortgage Loan (other
than upon termination of the Trust pursuant to Article X);
(iv) any determination to bring an REO Property into
compliance with Environmental Laws; and
(v) any acceptance of substitute or additional collateral
for a Mortgage Loan.
In no event shall the Special Servicer be obligated to take any action, or be
delayed in taking any action, with respect to any Specially Serviced Mortgage
Loan, as a result of any notice or advice received by, or noticed or advice
required to be given to, the Operating Adviser.
In addition, the Operating Adviser may direct the Trustee to
remove the Special Servicer at any time upon the appointment and acceptance of
such appointment by a successor to the Special Servicer appointed by the
Operating Adviser; provided that, prior to the effectiveness of any such
appointment, the Trustee shall have received (A) Rating Agency Confirmation from
each Rating Agency and (B) a Nondisqualification Opinion (which shall not be an
expense of the Trustee or the Trust). All costs of the Trust in connection with
such a termination of a Special Servicer shall be paid by the Operating Adviser.
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 10.1 TERMINATION OF TRUST UPON REPURCHASE OR
LIQUIDATION OF ALL MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee
created hereby (other than the obligation of the Trustee, to make payments to
the Class R-I Certificateholders, the Class R-II Certificateholders and REMIC
III Certificateholders as set forth in Section 10.2 and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust and (B) the disposition of all REO
Property or (ii) the sale of the property held by the Trust in accordance with
Section 10.1(b); provided that in no event shall the Trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late Ambassador of the United
States to the Court of St.
James, living on the date hereof.
(b) The Master Servicer shall give the Trustee notice of
the date when the Aggregate Certificate Balance of the Certificates, after
giving effect to distributions of principal made on the next Distribution Date,
is less than or equal to one percent (1%) of the initial Aggregate Certificate
Balance of the Certificates as of the Cut-Off Date. The Trustee shall promptly
forward such notice to the Depositor, the Master Servicer, the Special Servicer
and the Holders of the Class R-I Certificates, who in such priority (and in the
case of the Class R-I Certificateholders, a majority of the Class R-I
Certificateholders), may purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust. If any party desires to exercise
such option, it will notify the Trustee who will notify any party with a prior
right to exercise such option. If any party that has been provided notice by the
Trustee notifies the Trustee within ten Business Days after receiving notice of
the proposed purchase that it wishes to purchase the assets of the Trust, then
such party (or, in the event that more than one of such parties notifies the
Trustee that it wishes to purchase the assets of the Trust, the party with the
first right to purchase the assets of the Trust) may purchase the assets of the
Trust in accordance with this Agreement. Upon the Trustee's receipt of the
Termination Price set forth below, the Trustee shall promptly release or cause
to be released to the Master Servicer for the benefit of the Depositor, the
Holder of the majority of the Class R-I Certificates, the Special Servicer or
the Master Servicer, as the case may be, the Mortgage Files pertaining to the
Mortgage Loans. The "Termination Price" shall equal 100% of the aggregate
Scheduled Principal Balances of the Mortgage Loans (other than Mortgage Loans as
to which a Final Recovery Determination has been made) on the day of such
purchase plus accrued and unpaid interest thereon at the applicable Mortgage
Rates, with respect to the Mortgage Loans to the Due Date for each Mortgage Loan
ending in the Collection Period with respect to which such purchase occurs, plus
any related expenses reimbursable to the Master Servicer, the Special Servicer
or the Trustee, including unreimbursed Advances and interest on such
unreimbursed Advances at the Advance Rate, and the fair market value of any
other property remaining in REMIC I. The Trustee shall consult with the
Placement Agent and the Underwriters or their respective successors, as
advisers, in order for the Trustee to determine whether the fair market value of
the property constituting the Trust has been offered; provided that, if the
Placement Agent or any Underwriter or an Affiliate of the Placement Agents or
Underwriters is exercising its right to purchase the Trust assets, the Trustee
shall consult with the Operating Adviser in order for the Trustee to determine
the fair market value, provided that the Operating Adviser is not an Affiliate
of the Depositor, the Class R-I Holder, the Special Servicer or the Master
Servicer, or a third party chosen by the Depositor unless the Depositor is
bidding for such property, or the Trustee (the fees and expenses of which shall
be paid for by buyer of the property). As a condition to the purchase of the
Trust pursuant to this Section 10.1(b), the Depositor, the Holder of the
majority of the Class R-I Certificates, the Special Servicer or the Master
Servicer, as the case may be, must deliver to the Trustee an Opinion of Counsel,
which shall be at the expense of the Depositor, such Holders, the Special
Servicer or the Master Servicer, as the case may be, stating that such
termination will be a "qualified liquidation" under Section 860F(a)(4) of the
Code. Such purchase shall be made in accordance with Section 10.3.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions
of Section 10.1, specifying the Distribution Date upon which the final
distribution shall be made, shall be given promptly by the Trustee by first
class mail to the Rating Agencies, the Class R-I and REMIC III
Certificateholders mailed no later than ten days prior to the date of such
termination. Such notice shall specify (A) the Distribution Date upon which
final distribution on the Class R-I, Class R-II and REMIC III Certificates will
be made, and upon presentation and surrender of the Class R-I, Class R-II and
REMIC III Certificates at the office or agency of the Certificate Registrar
therein specified, and (B) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distribution being made only upon
presentation and surrender of the Class R-I, Class R-II, and REMIC III
Certificates at the office or agency of the Certificate Registrar therein
specified. The Trustee shall give such notice to the Depositor and the
Certificate Registrar at the time such notice is given to Holders of the Class
R-I, Class R-II and REMIC III Certificates. Upon any such termination, the
duties of the Certificate Registrar with respect to the Class R-I, Class R-II
and REMIC III Certificates shall terminate and the Trustee shall terminate, or
request the Master Servicer to terminate, the Certificate Account and the
Distribution Account and any other account or fund maintained with respect to
the Certificates, subject to the Trustee's obligation hereunder to hold all
amounts payable to the Class R-I, Class R-II and REMIC III Certificateholders in
trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender
their certificates evidencing the Class R-I, Class R-II and REMIC III
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Certificate Registrar shall give a
second written notice to the remaining Class R-I, Class R-II and REMIC III
Certificateholders to surrender their certificates evidencing the Class R-I,
Class R-II and REMIC III Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
any Class R-I, Class R-II and REMIC III Certificates shall not have been
surrendered for cancellation, the Certificate Registrar may take appropriate
steps to contact the remaining Class R-I, Class R-II and REMIC III
Certificateholders concerning surrender of such certificates, and the cost
thereof shall be paid out of the amounts distributable to such Holders. If
within two years after the second notice any such Class R-I, Class R-II and
REMIC III Certificates shall not have been surrendered for cancellation, the
Trustee shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed to a
Class R-I, Class R-II and REMIC III Certificateholders due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section. Any money held by
the Trustee pending distribution under this Section 10.2 after 90 days after the
adoption of a plan of complete liquidation shall be deemed for tax purposes to
have been distributed from the REMICs and shall be beneficially owned by the
related Holder.
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
The Trust and each REMIC shall be terminated in accordance
with the following additional requirements, unless at the request of the Master
Servicer or the Class R-I Certificateholders, as the case may be, the Trustee
seeks, and the Trustee subsequently receives an Opinion of Counsel (at the
expense of the Master Servicer or the Class R-I Certificateholders, as the case
may be), addressed to the Depositor and the Trustee to the effect that the
failure of the Trust to comply with the requirements of this Section 10.3 will
not (i) result in the imposition of taxes on "prohibited transactions" on any
REMIC under the REMIC Provisions or (ii) cause any REMIC Pool to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(a) The Trustee shall select, and shall specify in a
statement attached to the final federal income tax return of each REMIC Pool, a
date which is within 89 days prior to the time of the making of the final
payment on the REMIC III Certificates as the date of adoption of a plan of
complete liquidation of each REMIC Pool;
(b) At or after the time of adoption of such a plan of
complete liquidation and at or prior to the time of making of the final payment
on the REMIC III Certificates, the Trustee shall sell all of the assets of the
Trust for cash at the Termination Price; provided that if the Holders of the
Class R-I Certificates are purchasing the assets of the Trust, the amount to be
paid by such Holders may be paid net of the amount to be paid to such Holders as
final distributions on any Certificates held by such Holders;
(c) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be distributed
or credited, (A) to the Holders of the Class R-I Certificates all assets of
REMIC I remaining after such final payment of the REMIC Interests, (B) to the
Holders of the Class R-II Certificates all remaining assets of REMIC II and (C)
to the Holders of the Class R-III Certificates all remaining assets of REMIC III
(in each case other than cash retained to meet claims), and the Trust shall
terminate at that time; and
(d) In no event may the final payment on the REMIC I
Regular Interests, REMIC II Regular Interests or REMIC Regular Certificates or
the final distribution or credit to the Holders of the Residual Certificates,
respectively, be made after the 89th day from the date selected as the date of
adoption of the plan of complete liquidation.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
The provisions of this Article XI shall apply to each of the
REMIC I Regular Interests, REMIC II Regular Interests, REMIC Regular
Certificateholders and Residual Certificateholders to the extent appropriate.
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder
shall not operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer or
operation and management of the Trust, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder, solely by virtue of its status
as Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 25% of the Aggregate Principal
Amount of the Certificates then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
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 whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Trustee is not acting as Certificate
Registrar, the Certificate Registrar will furnish or cause to be furnished to
the Trustee within fifteen days after receipt by the Certificate Registrar of a
request by the Trustee in writing, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Certificateholders of each
Class as of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special
Servicer, the Master Servicer or three or more Holders (hereinafter referred to
as "applicants," with a single Person which (together with its Affiliates) is
the Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Trustee, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, send, at such Person's expense, the written communication
proffered by the applicants to all Certificateholders at their addresses as they
appear in the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate,
agrees with the Depositor, the Certificate Registrar, the Master Servicer and
the Trustee that neither the Depositor, the Certificate Registrar, the Master
Servicer nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Agreement to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor.
Such instrument or instruments (as the action embodies therein and evidenced
thereby) are herein sometimes referred to as an "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agents shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee and the Depositor if made in
the manner provided in this Section. The Trustee agrees to promptly notify the
Depositor of any such instrument or instruments received by it, and to promptly
forward copies of the same.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to such notary public
or other officer the execution thereof. Whenever such execution is by an officer
of a corporation or a member of a partnership on behalf of such corporation or
partnership, such certificate or affidavit shall also constitute sufficient
proof of such officer's or member's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the individual
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Certificates (notwithstanding any
notation of ownership or other writing thereon made by anyone other than the
Trustee) shall be proved by the Certificate Register, and neither the Trustee
nor the Depositor shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Certificate shall
bind every future Holder of the same Certificate and the Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered to
be done by the Trustee or the Depositor in reliance thereon, whether or not
notation of such action is made upon such Certificate.
ARTICLE XII
REMIC ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC
Pool.
SECTION 12.1 REMIC ADMINISTRATION.
(a) An election will be made by the Trustee to treat the
segregated pool of assets consisting of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account, the Distribution
Account and the Interest Reserve Account, the Insurance Policies and any REO
Properties as a REMIC under the Code. Such election will be made on Form 1066 or
other appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in which
the REMIC I Interests are issued. For purposes of such election, the REMIC I
Regular Interests shall each be designated as a separate Class of "regular
interests" in the REMIC I and the Class R-I Certificates shall be designated as
the sole Class of "residual interests" in the REMIC I. The Trustee shall not
permit the creation of any "interests" (within the meaning of Section 860G of
the Code) in any of the REMICs other than the REMIC I, REMIC II and REMIC III
Regular Interests and the Residual Certificates.
An election will be made by the Trustee to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
under the Code. Such election will be made on Form 1066 or other appropriate
federal tax or information return or any appropriate state return for the
taxable year ending on the last day of the calendar year in which the REMIC II
Interest is issued. For the purposes of such election, the REMIC II Regular
Interests shall be designated as the "regular interests" in REMIC II and the
Class R-II Certificates shall be designated as the sole Class of the "residual
interests" in REMIC II.
An election will be made by the Trustee to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC III Certificates are issued. For purposes of such election, the Class A-1,
Class A-2, Class A-3, Class A-4, Class X, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class
O Certificates shall be designated as the "regular interests" in REMIC III and
the Class R-III Certificates shall be designated as the sole Class of "residual
interests" in REMIC III.
(b) The Closing Date is hereby designated as the "Startup
Day" of each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall pay all routine tax related
expenses (not including any taxes, however denominated (including any additions
to tax, penalties and interest)) of each REMIC Pool, excluding any professional
fees or expenses related to audits or any administrative or judicial proceedings
with respect to each REMIC Pool that involve the Internal Revenue Service or
state tax authorities.
(d) The Trustee shall cause to be prepared, signed, and
timely filed with the Internal Revenue Service, on behalf of each REMIC Pool, an
application for a taxpayer identification number for such REMIC Pool on Internal
Revenue Service Form SS-4. The Trustee, upon receipt from the Internal Revenue
Service of the Notice of Taxpayer Identification Number Assigned, shall promptly
forward a copy of such notice to the Depositor and the Master Servicer. The
Trustee shall prepare and file Form 8811 on behalf of each REMIC Pool and shall
designate an appropriate Person to respond to inquiries by or on behalf of
Certificateholders for original issue discount and related information in
accordance with applicable provisions of the Code.
(e) The Trustee shall prepare or cause to be prepared and
filed, and the Trustee shall sign, each REMIC Pool's federal and state income or
franchise tax and information returns as such REMIC Pool direct representative;
the expenses of preparing such returns shall be borne by the Trustee and the
cost of filing such returns shall be borne by the applicable REMIC Pool, except
that if additional state tax returns are required to be filed in more than three
states, the Trustee shall be entitled, with respect to any such additional
filings, to (i) be paid a reasonable fee and (ii) receive its reasonable costs
and expenses, both as amounts reimbursable pursuant to Section 5.2(a)(vi)
hereof. The Depositor, the Master Servicer and the Special Servicer shall
provide on a timely basis to the Trustee or its designee such information with
respect to the Trust or any REMIC Pool as is in its possession, which the
Depositor or the Master Servicer and the Special Servicer has received or
prepared by virtue of its role as Depositor or Master Servicer and the Special
Servicer hereunder and reasonably requested by the Trustee to enable it to
perform its obligations under this subsection, and the Trustee shall be entitled
to conclusively rely on such information in the performance of its obligations
hereunder. The Depositor shall indemnify the Trust and the Trustee for any
liability or assessment against any of them or cost or expense (including
attorneys' fees) incurred by them resulting from any error resulting from bad
faith, negligence, or willful malfeasance of the Depositor in providing any
information which the Depositor is responsible for preparing. The Master
Servicer and the Special Servicer shall indemnify the Trustee and the Depositor
for any liability or assessment against the Trustee, the Depositor or any REMIC
Pool and any expenses incurred in connection with such liability or assessment
(including attorney's fees) resulting from any error in any of such tax or
information returns resulting from errors in the information provided by the
Master Servicer or the Special Servicer, as the case may be, caused by the
negligence, willful misconduct or bad faith of the Master Servicer or the
Special Servicer, as the case may be. The Trustee shall indemnify the Master
Servicer, the Depositor or any REMIC Pool for any expense incurred by the Master
Servicer, the Depositor and any REMIC Pool resulting from any error in any of
such tax or information returns resulting from errors in the preparation of such
returns caused by the negligence, willful misconduct or bad faith of the
Trustee. Each indemnified party shall immediately notify the indemnifying party
or parties of the existence of a claim for indemnification under this Section
12.1(e), and provide the indemnifying party or parties, at the expense of such
indemnifying party or parties, an opportunity to contest the tax or assessment
or expense giving rise to such claim, provided that the failure to give such
notification rights shall not affect the indemnification rights in favor of any
REMIC Pool under this Section 12.1(e). Any such indemnification shall survive
the resignation or termination of the Master Servicer, the Special Servicer and
the Trustee or the termination of this Agreement.
(f) The Trustee shall perform on behalf of each REMIC all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, REMIC Provisions, or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, the Trustee shall provide (i) to the Internal Revenue Service
or other Persons (including, but not limited to, the transferor of a Residual
Certificate, to a Disqualified Organization or to an agent that has acquired a
Residual Certificate on behalf of a Disqualified Organization) such information
as is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Disqualified Organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions.
(g) The Trustee shall forward to the Depositor copies of
quarterly and annual REMIC tax returns and Form 1099 information returns and
such other information within the control of the Trustee as the Depositor may
reasonably request in writing. Moreover, the Trustee shall forward to each
Certificateholder such forms and furnish such information within its control as
are required by the Code to be furnished to them, shall prepare and file with
the appropriate state authorities as may to the actual knowledge of a
Responsible Officer of the Trustee be required by applicable law and shall
prepare and disseminate to Certificateholders Forms 1099 (or otherwise furnish
information within the control of the Trustee) to the extent required by
applicable law. The Trustee will make available to any Certificateholder any tax
related information required to be made available to Certificateholders pursuant
to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage
Interests in Class R-I, Class R-II and Class R-III Certificates, respectively
(or of the greatest percentage of such Class R-I, Class R-II and Class R-III
Certificates if no Holder holds more than 50% thereof), shall be the applicable
REMIC's Tax Matters Person. The duties of the Tax Matters Person for each of the
REMIC Pools are hereby delegated to the Trustee and each Residual
Certificateholder, by acceptance of its Residual Certificate, agrees, on behalf
of itself and all successor holders of such Residual Certificate, to such
delegation to the Trustee as its agent and attorney in fact. If the Code or
applicable regulations prohibits the Trustee from signing any applicable
Internal Revenue Service, court or other administrative documents or from acting
as Tax Matters Person (as an agent or otherwise), the Trustee shall take
whatever action is necessary for the signing of such documents and designation
of a Tax Matters Person, including the designation of such Residual
Certificateholder. The Trustee shall not be required to expend or risk its own
funds or otherwise incur any other financial liability in the performance of its
duties hereunder or in the exercise of any of its rights or powers (except to
the extent of the ordinary expenses of performing its duties under this
Agreement), if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(i) The Trustee, the Holders of the Residual
Certificates, the Master Servicer and the Special Servicer shall each exercise
reasonable care, to the extent within its control, and with respect to each of
the Trustee, the Master Servicer and the Special Servicer, within the scope of
its express duties, and shall each act in accordance with this Agreement and the
REMIC Provisions in order to create and maintain the status of each REMIC Pool
as a REMIC or, as appropriate, adopt a plan of complete liquidation.
(j) The Trustee, the Master Servicer, the Special
Servicer and the Holders of Residual Certificates shall not take any action or
fail to take any action or cause any REMIC Pool to take any action or fail to
take any action if any of such persons knows or could, upon the exercise of
reasonable diligence, know, that, under the REMIC Provisions such action or
failure, as the case may be, could (i) endanger the status of any REMIC Pool as
a REMIC or (ii) result in the imposition of a tax upon any REMIC Pool (including
but not limited to the tax on prohibited transactions as defined in Code Section
860F(a)(2)) unless the Trustee has received an Opinion of Counsel (at the
expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition of
such a tax. Any action required under this section which would result in an
unusual or unexpected expense shall be undertaken at the expense of the party
seeking the Trustee or the Holders of the Residual Certificates to undertake
such action.
(k) In the event that any tax is imposed on REMIC I,
REMIC II or REMIC III, including, without limitation, "prohibited transactions"
taxes as defined in Section 860F(a)(2) of the Code, any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, any taxes on
contributions to REMIC I, REMIC II or REMIC III after the Startup Day pursuant
to Section 860G(d) of the Code, and any other tax imposed by the Code or any
applicable provisions of state or local tax laws (other than any tax permitted
to be incurred by the Special Servicer pursuant to Section 9.14(e)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the Trustee, if such tax arises out of or results from a breach of any of its
obligations under this Agreement (which breach constitutes negligence or willful
misconduct of the Trustee) and such breach is not caused by the breach of
another party; (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 this
Agreement (which breach constitutes negligence or willful misconduct of the
Special Servicer) and such breach is not caused by the breach of another party;
(iii) the Master Servicer, if such tax arises out or results from a breach by
the Master Servicer of any of its obligations under this Agreement (which breach
constitutes negligence or willful misconduct of the Master Servicer) and such
breach is not caused by the breach of another party; or (iv) the Trust in all
other instances. Any tax permitted to be incurred by the Special Servicer
pursuant to Section 9.14(e) shall be charged to and paid by the Trust from the
net income generated on the related REO Property. Any such amounts payable by
the Trust in respect of taxes shall be paid by the Trustee out of amounts on
deposit in the Distribution Account.
(l) The Trustee and, to the extent that records are
maintained by the Master Servicer or the Special Servicer in the normal course
of its business, the Master Servicer and the Special Servicer shall, for federal
income tax purposes, maintain books and records with respect to each REMIC Pool
on a calendar year and on an accrual basis. Notwithstanding anything to the
contrary contained herein, except to the extent provided otherwise in the
Mortgage Loans or in the Mortgages, all amounts collected on the Mortgage Loans
shall, for federal income tax purposes, be allocated first to interest due and
payable on the Mortgage Loans (including interest on overdue interest, other
than additional interest at a penalty rate payable following a default). The
books and records must be sufficient concerning the nature and amount of each
REMIC Pool's investments to show that such REMIC Pool has complied with the
REMIC Provisions.
(m) Neither the Trustee, the Master Servicer nor the
Special Servicer shall enter into any arrangement by which any REMIC Pool will
receive a fee or other compensation for services.
(n) In order to enable the Trustee to perform its duties
as set forth herein, the Depositor shall provide, or cause to be provided, to
the Trustee within ten (10) days after the Closing Date all information or data
that the Trustee reasonably determines to be relevant for tax purposes on the
valuations and offering prices of the Certificates, including, without
limitation, the yield, prepayment assumption, issue prices and projected cash
flows of the Senior Certificates, Subordinate Certificates and Residual
Certificates, as applicable, and the projected cash flows of the Mortgage Loans.
Thereafter, the Depositor shall provide to the Trustee or its designee, promptly
upon request therefor, any such additional information or data within the
Depositor's possession or knowledge that the Trustee may, from time to time,
reasonably request in order to enable the Trustee to perform its duties as set
forth herein. The Trustee is hereby directed to use any and all such information
or data provided by the Depositor in the preparation of all federal and state
income or franchise tax and information returns and reports for each REMIC Pool
to Certificateholders as required herein. The Depositor hereby indemnifies the
Trustee and each REMIC Pool for any losses, liabilities, damages, claims,
expenses (including attorneys' fees) or assessments against the Trustee and each
REMIC Pool arising from any errors or miscalculations of the Trustee pursuant to
this Section that result from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee (but not
resulting from the methodology employed by the Trustee) on a timely basis and
such indemnification shall survive the termination of this Agreement and the
termination or resignation of the Trustee.
The Trustee agrees that all such information or data so
obtained by it are to be regarded as confidential information and agrees that it
shall use its best reasonable efforts to retain in confidence, and shall ensure
that its officers, employees and representatives retain in confidence, and shall
not disclose, without the prior written consent of the Depositor, any or all of
such information or data, or make any use whatsoever (other than for the
purposes contemplated by this Agreement) of any such information or data without
the prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
professional advisers of the Trustee and its parent, or (ii) in connection with
its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the
Master Servicer will to the extent within its control and the scope of its
duties more specifically set forth herein, maintain substantially all of the
assets of each REMIC Pool as "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(p) Solely for the purposes of Section
1.860G-1(a)(4)(iii) of the Treasury Regulations, the "latest possible maturity
date" by which the Certificate Balance of each Class of Certificates
representing a regular interest in the REMIC would be reduced to zero is the
Final Rated Distribution Date.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither
the Trustee, the Master Servicer nor the Special Servicer shall permit the sale,
disposition or substitution of any of the Mortgage Loans (except in a
disposition pursuant to (i) the foreclosure or default of a Mortgage Loan, (ii)
the bankruptcy or insolvency of any REMIC Pool, (iii) the termination of any
REMIC Pool in a "qualified liquidation" as defined in Section 860F(a)(4) of the
Code, or (iv) a substitution pursuant to Article II hereof), nor acquire any
assets for the Trust, except as provided in Article II hereof, nor sell or
dispose of any investments in the Certificate Account or Distribution Account
for gain, nor accept any contributions to any REMIC Pool (other than a cash
contribution during the 3-month period beginning on the Startup Day), unless it
has received an Opinion of Counsel (at the expense of the Person requesting such
action) to the effect that such disposition, acquisition, substitution, or
acceptance will not (A) affect adversely the status of any REMIC Pool as a REMIC
or of the REMIC Certificates, other than the Residual Certificates, as the
regular interests therein, (B) affect the distribution of interest or principal
on the Certificates, (C) result in the encumbrance of the assets transferred or
assigned to any REMIC Pool (except pursuant to the provisions of this Agreement)
or (D) cause any REMIC Pool to be subject to a tax on "prohibited transactions"
or "prohibited contributions" or other tax pursuant to the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding
anything to the contrary in this Agreement, neither the Trustee, the Master
Servicer nor the Special Servicer shall permit any modification of any Money
Term of a Mortgage Loan or a Specially Serviced Mortgage Loan or relating to the
collateral for a Mortgage Loan or a Specially Serviced Mortgage Loan unless (i)
if the Mortgage Loan is not in default or default with respect thereto is not
reasonably foreseeable, the Trustee and the Master Servicer have received a
Nondisqualification Opinion or a ruling from the Internal Revenue Service (at
the expense of the party making the request that the Master Servicer or the
Special Servicer modify the Mortgage Loan or a Specially Serviced Mortgage Loan)
to the effect that such modification would not be treated as an exchange
pursuant to Section 1001 of the Code (or, if it would be so treated, would not
be treated as a "significant modification" for purposes of Treas. Reg. Sec.
1.860G-2(B) of the Code) or (ii) such modification meets the requirements set
forth in Sections 8.18 or 9.5.
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS
OF REMIC STATUS. In the event that any REMIC Pool fails to qualify as a REMIC,
loses its status as a REMIC, or incurs state or local taxes, or tax as a result
of a prohibited transaction or prohibited contribution subject to taxation under
the REMIC Provisions due to the negligent performance by the Trustee of its
duties and obligations set forth herein, the Trustee shall be liable to the
REMIC Pools and the Holders of the Residual Certificates for any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee shall not be liable for any such Losses attributable to the action
or inaction of the Master Servicer, the Special Servicer, the Depositor or the
Holders of such Residual Certificates nor for any such Losses resulting from any
actions or failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by the Master Servicer, the Special Servicer, the
Depositor or such Holders of the Residual Certificates on which the Trustee has
relied. The foregoing shall not be deemed to limit or restrict the rights and
remedies of the Holders of the Residual Certificates now or hereafter existing
at law or in equity. The Trustee shall be entitled to intervene in any
litigation in connection with the foregoing and to maintain control over its
defense.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied, oral
or written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof.
SECTION 13.3 AMENDMENT.
(a) This Agreement may be amended from time to time by
the parties hereto, without notice to or the consent of any of the Holders, (i)
to cure any ambiguity, (ii) to cause the provisions herein to conform to or be
consistent with or in furtherance of the statements made with respect to the
Certificates, the Trust or this Agreement in the Private Placement Memorandum
and in the Preliminary Prospectus Supplement and Final Prospectus Supplement,
(iii) to correct or supplement any provision herein which may be inconsistent
with any other provisions herein, (iv) to amend any provision hereof to the
extent necessary or desirable to maintain the status of each REMIC Pool as a
REMIC for the purposes of federal income tax law (or comparable provisions of
state income tax law), (v) to make any other provisions with respect to matters
or questions arising under or with respect to this Agreement not inconsistent
with the provisions hereof, subject to the receipt of Rating Agency
Confirmation, (vi) to modify, add to or eliminate the provisions of Article III
relating to transfers of Residual Certificates or (vii) any other amendment
which does not adversely affect in any material respect the interests of any
Certificateholder (unless such Certificateholder consents), subject to the
receipt of Rating Agency Confirmation. No such amendment effected pursuant to
clause (i), (iii) or (v) of the preceding sentence shall (A) adversely affect in
any material respect the interests of any Holder not consenting thereto, and no
amendment shall adversely affect the status of any REMIC Pool as a REMIC without
the consent of 100% of the Certificateholders or (B) adversely affect the status
of any REMIC Pool as a REMIC. Prior to entering into any amendment without the
consent of Holders pursuant to this paragraph, the Trustee may require an
Opinion of Counsel and a Nondisqualification Opinion (in the case of clauses
(i), (ii), (iii) and (iv), at the expense of the Depositor, and otherwise at the
expense of the party requesting such amendment, except that if the Trustee
reasonably requests such amendment, such amendment and opinions shall be at the
expense of the Depositor, if the Depositor consents), to the effect that such
amendment is permitted under this paragraph. Any such amendment shall be deemed
not to adversely affect in any material economic respect any Holder if the
Trustee receives written confirmation from each Rating Agency that such
amendment will not cause such Rating Agency to reduce, qualify or withdraw the
then current rating assigned to any of the rated Certificates that were
currently being rated by the Rating Agencies (and any Opinion of Counsel
requested by the Trustee in connection with any such amendment may rely
expressly on such confirmation as the basis therefor). The placement of an
"original issue discount" legend on, or any change required to correct any such
legend previously placed on, a Certificate shall not be deemed an amendment to
this Agreement.
(b) This Agreement may also be amended from time to time
by the agreement of the parties hereto (without the consent of the
Certificateholders) and with the written confirmation of the Rating Agencies
that such amendment would not cause the ratings on any Class of Certificates to
be qualified, withdrawn or downgraded; provided, however, that such amendment
may not effect any of the items set forth in clauses (i) through (iv) of the
proviso in paragraph (c) of this Section 13.3. The Trustee may request, at its
option, to receive a Nondisqualification Opinion and an Opinion of Counsel (at
the expense of the party requesting the amendment) that any amendment pursuant
to this Section 13.3(b) is permitted by this Agreement.
(c) This Agreement may also be amended from time to time
by the parties with the consent of the Holders of not less than 51% of the
Aggregate Certificate Balance of the Certificates then outstanding, 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; provided that no such amendment may (i) reduce in any manner the
amount of, or delay the timing of the distributions required to be made on any
Certificate without the consent of the Holder of such Certificate, (ii) reduce
the aforesaid percentages of Aggregate Certificate Percentage or Certificate
Balance, the Holders of which are required to consent to any such amendment
without the consent of all the Holders of each Class of Certificates affected
thereby, (iii) no such amendment shall eliminate the Master Servicer's or the
Trustee's obligation to Advance, or alter the Servicing Standard, except as may
be necessary or desirable to comply with the REMIC Provisions or (iv) adversely
affect the status of any REMIC Pool as a REMIC for federal income tax purposes
(as evidenced by a Nondisqualification Opinion) without the consent of 100% of
the Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders); provided that no such amendment may modify Section 8.18 of
this Agreement without the approval of the Rating Agencies. The Trustee may
request, at its option, to receive a Nondisqualification Opinion and an Opinion
of Counsel (at the expense of the party requesting the amendment) that any
amendment pursuant to this Section 13.3(c) is permitted by this Agreement.
(d) The costs and expenses associated with any such
amendment shall be borne by the Depositor in the case the Trustee is the party
requesting such amendment or if pursuant to clauses (i), (ii), (iii) and (iv) of
Section 13.3(a). In all other cases, the costs and expenses shall be borne by
the party requesting the amendment.
(e) Promptly after the execution of any such amendment,
the Trustee shall furnish written notification of the substance of such
amendment to each Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders
under this Section 13.3 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Holders shall be in the affirmative
and in writing and shall be subject to such reasonable regulations as the
Trustee may prescribe.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
SECTION 13.5 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (A) in the case of the Depositor, Morgan Stanley Capital I Inc.,
1585 Broadway, New York, New York 10036, Attention: Russell Rahbany, with a copy
to: Morgan Stanley Capital I Inc., 1585 Broadway, New York, New York 10036,
Attention: General Counsel; (B) in the case of the Trustee at the Corporate
Trust Office at The Chase Manhattan Bank, 450 West 33rd Street, 14th Floor, New
York, N.Y. 10001-2697, Attention: Capital Markets Fiduciary Services (CMBS); (C)
in the case of the Master Servicer, Conning Asset Management Company, 700 Market
Street, St. Louis, MO 63101, Attention: Michael D. McLellan, with a copy to
Steven P. Traynor, Esq., Conning Asset Management Company, 700 Market Street,
St. Louis, MO 63101; or (D) in the case of the Special Servicer, Conning Asset
Management Company, 700 Market Street, St. Louis, MO 63101, Attention: Michael
D. McLellan, with a copy to Stephen P. Traynor, Conning Asset Management
Company, 700 Market Street, St. Louis, MO 63101; or as to each party such other
address as may hereafter be furnished by such party to the other parties in
writing. Any notice required or permitted to be mailed to a Holder shall be
given by first class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.
SECTION 13.6 SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 13.7 INDULGENCES; NO WAIVERS. Neither the failure nor
any delay on the part of a party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy, power
or privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION. The
headings contained in this Agreement are for convenience of reference only, and
shall not be used in the interpretation hereof.
SECTION 13.9 BENEFITS OF AGREEMENT. Nothing in this Agreement
or in the Certificates, express or implied, shall give to any Person, other than
the parties to this Agreement and their successors hereunder and the Holders of
the Certificates, any benefit or any legal or equitable right, power, remedy or
claim under this Agreement.
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Trustee shall give prompt notice to the
Depositor, the Rating Agencies, the Master Servicer, the Special Servicer and
the Operating Adviser of the occurrence of any of the following events of which
it has notice:
(i) any amendment to this Agreement pursuant to Section
13.3 hereof;
(ii) the Initial Certification and the Final Certification
required pursuant to Section 2.2 hereof;
(iii) notice of the repurchase of any Mortgage Loan
pursuant to Section 2.3(a) hereof;
(iv) any resignation of the Master Servicer, Special
Servicer or the Trustee pursuant to this Agreement;
(v) the appointment of any successor to the Master
Servicer, the Trustee or the Special Servicer pursuant to Section 7.7 or 7.14
hereof;
(vi) waiver of a due-on-sale clause as provided in Section
8.7;
(vii) waiver of a prohibition on subordinate liens on the
Mortgaged Properties;
(viii) the making of a final payment pursuant to Section
10.3 hereof; and
(ix) a Servicing Transfer Event.
(b) All notices to the Rating Agencies shall be in
writing and sent by first class mail, telecopy or overnight courier, as follows:
If to Fitch, to:
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
Attention: Commercial Mortgage Surveillance
Fax: 212-635-0294
If to S&P, to:
Standard & Poors Rating Services, a division of the
McGraw-Hill Companies, Inc.
55 Water Street
New York, New York 10041
Attention: CMBS Surveillance
Fax: 212-438-2662
If to any other Rating Agency, at such address as shall be
provided in writing to the Trustee by such Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii),
the successor trustee, shall give prompt notice to the Rating Agencies of the
occurrence of any of the following events:
(i) the resignation or removal of the Trustee pursuant to
Section 7.6; or
(ii) the appointment of a successor trustee pursuant to
Section 7.7; or
(iii) the appointment of a successor Operating Adviser
pursuant to Section 9.37.
(d) The Master Servicer shall deliver to the Rating
Agencies, the Depositor and the Special Servicer reports prepared pursuant to
this Agreement (including the reports described in Sections 8.12, 8.13 and 8.14
and the Special Servicer Reports in its possession prepared pursuant to Section
9.32) and any other information as reasonably requested by the Rating Agencies
and the Depositor. The Trustee and the Special Servicer shall deliver to the
Rating Agencies and the Depositor any information as reasonably requested by the
Rating Agencies and Depositor, as the case may be.
(e) Any notice or other document required to be delivered
or mailed by the Depositor, Master Servicer or Trustee shall be given by such
parties, respectively, on a best efforts basis and only as a matter of courtesy
and accommodation to the Rating Agencies, unless otherwise specifically required
herein, and such parties, respectively, shall have no liability for failure to
deliver any such notice or document to the Rating Agencies.
SECTION 13.11 COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
SECTION 13.12 INTENTION OF PARTIES. It is the express intent
of the parties hereto that the conveyance of the Mortgage Loans and related
rights and property to the Trustee, for the benefit of the Certificateholders,
by the Depositor as provided in Section 2.1 be, and be construed as, an absolute
sale of the Mortgage Loans and related property. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of the Mortgage
Loans and related property by the Depositor to the Trustee to secure a debt or
other obligation of the Depositor. However, in the event that, notwithstanding
the intent of the parties, the Mortgage Loans or any related property is held to
be the property of the Depositor, or if for any other reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans or any
related property, then this Agreement shall be deemed to be a security
agreement; and the conveyance provided for in Section 2.1 shall be deemed to be
a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the Depositor's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting of,
arising from or relating to any of the property described in clauses (1)-(4)
below: (1) the Mortgage Loans, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies identified
on the Mortgage Loan Schedule, including all Qualified Substitute Mortgage
Loans, all distributions with respect thereto payable after the Cut-Off Date,
and the Mortgage Files; (2) the Distribution Account, all REO Accounts, the
Interest Reserve Account and the Certificate Account, including all property
therein and all income from the investment of funds therein (including any
accrued discount realized on liquidation of any investment purchased at a
discount); (3) the REMIC I Regular Interests and the REMIC II Regular Interests;
and (4) the Mortgage Loan Purchase Agreements;
(ii) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other rights
arising from or by virtue of the disposition of, or collections with respect to,
or insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (A) above
(including any accrued discount realized on liquidation of any investment
purchased at a discount); and
(iii) All cash and non-cash proceeds of the collateral
described in clauses (i) and (ii)
above.
The possession by the Trustee of the Mortgage Notes, the
Mortgages and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall be
deemed to be possession by the secured party or possession by a purchaser for
purposes of perfecting the security interest pursuant to the Uniform Commercial
Code (including, without limitation, Sections 9-115 and 9-305 thereof) as in
force in the relevant jurisdiction.
Notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for, the Trustee, as applicable, for the purpose of perfecting such
security interest under applicable law.
The Depositor and, at the Depositor's direction, the Master
Servicer and the Trustee, shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. The Master Servicer shall file, at the
expense of the Trust as an Additional Trust Expense, all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect the Trustee's
security interest in such property, including without limitation (i)
continuation statements, and (ii) such other statements as may be occasioned by
any transfer of any interest of the Master Servicer or the Depositor in such
property. In connection herewith, the Trustee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction.
SECTION 13.13 RECORDATION OF AGREEMENT. This Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere. Such recordation, if any,
shall be effected by the Master Servicer at the expense of the Trust as an
Additional Trust Expense, but only upon direction of the Depositor accompanied
by an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders of the Trust.
SECTION 13.14 RATING AGENCY MONITORING FEES. The Master
Servicer shall promptly pay, when due, out of its own funds, all reasonable
monitoring fees of the Rating Agencies relating to the rating of the
Certificates.
[Signature Pages Continue on Next Page]
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar and the Authenticating
Agent have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the day and year first above written.
MORGAN STANLEY CAPITAL I INC.,
as Depositor
By: ________________________________
Name: Russell A. Rahbany
Title: Vice President
CONNING ASSET MANAGEMENT COMPANY,
as Master Servicer
By: ________________________________
Name:
Title:
CONNING ASSET MANAGEMENT COMPANY, as
Special Servicer
By: ________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Trustee, Certificate Registrar
and Authenticating Agent
By: ________________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___th day of _____________, 1999, before me, a notary
public in and for said State, personally appeared Russell A. Rahbany, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed the within instrument as Vice President on behalf of Morgan
Stanley Capital I Inc., and acknowledged to me that such corporation executed
the within instrument pursuant to its by-laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
___________________________________________
Notary Public
<PAGE>
STATE OF MISSOURI )
) ss.:
CITY OF ST. LOUIS )
On this ___th day of _____________, 1999, before me, a notary
public in and for said State, personally appeared
___________________________________________ personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person who executed the
within instrument as ______________________________________________ of Conning
Asset Management Company, and acknowledged to me that such corporation executed
the within instrument pursuant to its by-laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
___________________________________________
Notary Public
<PAGE>
STATE OF MISSOURI )
) ss.:
CITY OF ST. LOUIS )
On the ______ day of July, 1999, before me, a notary public in
and for said State, personally appeared
________________________________________________ known to me to be
__________________________________ of Conning Asset Management Company, one of
the entities that executed the within instrument, 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.
___________________________________________
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of July, 1999, before me, a notary public in
and for said State, personally appeared
____________________________________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as ____________________________________ on behalf
of The Chase Manhattan Bank, and acknowledged to me that such nationally
chartered bank executed the within instrument pursuant to its by-laws or a
resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
___________________________________________
Notary Public
<PAGE>
MORGAN STANLEY CAPITAL I INC.,
AS DEPOSITOR,
AND
CONNING ASSET MANAGEMENT COMPANY,
AS MASTER SERVICER,
AND
SPECIAL SERVICER,
AND
THE CHASE MANHATTAN BANK, AS TRUSTEE
-------------------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF JULY 1, 1999
-------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
1999-CAM1
<PAGE>
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITER, THE TRUSTEE, CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 6.54% CERTIFICATE BALANCE OF THIS CLASS
A-1 CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING AGREEMENT: DATE: $_________________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: APRIL 15, 2004 CUSIP NO. 61745M MW 0
AGGREGATE CERTIFICATE BALANCE OF THE ISIN NO. US61745MMW00
CLASS A-1 CERTIFICATES AS OF THE CLOSING
DATE: $95,763,000.00 NO. ___
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class A-1 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-1 Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
________________________________________________ account number
______________ or, if mailed by check, to
______________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above,
or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO THE GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-2
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITER, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-2 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR, OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 6.76% CERTIFICATE BALANCE OF THIS CLASS
A-2 CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING AGREEMENT: DATE: $________________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: NOVEMBER 15, 2008 CUSIP NO. 61745M MX 8
AGGREGATE CERTIFICATE BALANCE OF THE CLASS ISIN NO. US61745MMX82
A-2 CERTIFICATES AS OF THE CLOSING DATE:
$180,000,000.00 NO. ___
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the
interest evidenced by this Certificate in the Class A-2 Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Morgan Stanley
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-2 Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO THE GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
<PAGE>
EXHIBIT A-3
[FORM OF CLASS A-3 CERTIFICATE]
THIS CLASS A-3 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITER, THE TRUSTEE, CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 6.92% CERTIFICATE BALANCE OF THIS CLASS
A-3 CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING AGREEMENT: DATE: $_________________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: NOVEMBER 15, 2008 CUSIP NO. 61745M ND 1
AGGREGATE CERTIFICATE BALANCE OF THE ISIN NO. US61745MND10
CLASS A-3 CERTIFICATES AS OF THE CLOSING
DATE: $167,680,000.00 NO. ___
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class A-3 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-3 Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-4
[FORM OF CLASS A-4 CERTIFICATE]
THIS CLASS A-4 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITER, THE TRUSTEE, CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-4 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 7.02% CERTIFICATE BALANCE OF THIS CLASS
A-4 CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING AGREEMENT: DATE: $_________________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: NOVEMBER 15, 2009 CUSIP NO. 61745M NE 9
AGGREGATE CERTIFICATE BALANCE OF THE ISIN NO. US61745MNE92
CLASS A-4 CERTIFICATES AS OF THE CLOSING
DATE: $205,751,000.00 NO. ___
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class A-4 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-4 Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-5
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITER, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED TO ANY
PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 7.12% CERTIFICATE BALANCE OF THIS CLASS B
CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING AGREEMENT: DATE: $___________________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: DECEMBER 15, 2010 CUSIP NO. 61745M MY 6
AGGREGATE CERTIFICATE BALANCE OF THE CLASS ISIN NO. US61745MMY65
B CERTIFICATES AS OF THE CLOSING DATE:
$26,209,000.00 NO. ___
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class B Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class B Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
______________________________________________________ account number
______________ or, if mailed by check, to
_______-________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-6
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITER, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 7.36995% CERTIFICATE BALANCE OF THIS CLASS C
CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING AGREEMENT: DATE: $_________________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: DECEMBER 15, 2011 CUSIP NO. 61745M MZ 3
AGGREGATE CERTIFICATE BALANCE OF THE CLASS ISIN NO. US61745MMZ31
C CERTIFICATES AS OF THE CLOSING DATE:
$26,210,000.00 NO. ____
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class C Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class C Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
______________________________________________________ account number
______________ or, if mailed by check, to
_______-________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-7
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITER, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 7.49995% CERTIFICATE BALANCE OF THIS CLASS D
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING AGREEMENT: $_________________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: MAY 15, 2012 CUSIP NO. 61745M NA 7
AGGREGATE CERTIFICATE BALANCE OF THE ISIN NO. US61745MNA70
CLASS D CERTIFICATES AS OF THE CLOSING
DATE: $12,097,000.00 NO. ___
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class D Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class D Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-8
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITER, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 7.49995% CERTIFICATE BALANCE OF THIS CLASS E
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING AGREEMENT: $________________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: JUNE 15, 2013 CUSIP NO. 61745M NB 5
AGGREGATE CERTIFICATE BALANCE OF THE ISIN NO. US61745MNB53
CLASS E CERTIFICATES AS OF THE CLOSING
DATE: $20,161,000.00 NO. ___
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class E Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class E Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-9
[FORM OF CLASS F CERTIFICATE]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITER, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS F CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. 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. THIS
CERTIFICATE IS ISSUED ON JULY __, 1999, AT AN ISSUE PRICE OF __% OF ITS INITIAL
CERTIFICATE BALANCE INCLUDING ACCRUED INTEREST. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH OID OF ___% OF ITS INITIAL
CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _________% PER ANNUM, COMPOUNDED
MONTHLY, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS
___% OF ITS INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR THAT, IF THEY
DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 7.49995% CERTIFICATE BALANCE OF THIS CLASS F
CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING AGREEMENT: DATE: $________________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: SEPTEMBER 15, 2013 CUSIP NO. 61745M NC 3
AGGREGATE CERTIFICATE BALANCE OF THE CLASS ISIN NO. US61745MNC37
F CERTIFICATES AS OF THE CLOSING DATE:
$8,065,000.00 NO. ___
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class F Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class F Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-10
[FORM OF CLASS G CERTIFICATE]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. 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. THIS
CERTIFICATE IS ISSUED ON JULY __, 1999, AT AN ISSUE PRICE OF __% OF ITS INITIAL
CERTIFICATE BALANCE INCLUDING ACCRUED INTEREST. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH OID OF ___% OF ITS INITIAL
CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _________% PER ANNUM, COMPOUNDED
MONTHLY, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS
___% OF ITS INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR THAT, IF THEY
DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) JULY __, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 6.54% CERTIFICATE BALANCE OF THIS CLASS G
CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING AGREEMENT: DATE: $_________________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: JANUARY 15, 2014 CUSIP NO. 61745M NF 6
AGGREGATE CERTIFICATE BALANCE OF THE CLASS ISIN NO. US61745MNF67
G CERTIFICATES AS OF THE CLOSING DATE:
$14,113,000.00 NO. ___
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class G Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account,
Distribution Account and Interest Reserve Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class G Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-11
[FORM OF CLASS H CERTIFICATE]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. 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. THIS
CERTIFICATE IS ISSUED ON JULY __, 1999, AT AN ISSUE PRICE OF __% OF ITS INITIAL
CERTIFICATE BALANCE INCLUDING ACCRUED INTEREST. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH OID OF ___% OF ITS INITIAL
CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _________% PER ANNUM, COMPOUNDED
MONTHLY, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS
___% OF ITS INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR THAT, IF THEY
DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) JULY __, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 6.54% CERTIFICATE BALANCE OF THIS CLASS H
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING AGREEMENT: $__________________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENTCOMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: JULY 15, 2014 CUSIP NO. 61745M NG 4
AGGREGATE CERTIFICATE BALANCE OF THE ISIN NO. US61745MNG41
CLASS H CERTIFICATES AS OF THE CLOSING
DATE: $14,112,000.00 NO. ___
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class H Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account,
Distribution Account and Interest Reserve Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class H Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder . All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date
(except with respect to the Class G, Class H, Class J, Class K, Class L, Class
M, Class N and Class O Certificates by the registered owner of these
Certificates with an aggregate initial Certificate Balance (or in the case of
the Class X Certificates, a Notional Amount) of less than $50,000) or otherwise
by check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-12
[FORM OF CLASS J CERTIFICATE]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. 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. THIS
CERTIFICATE IS ISSUED ON JULY __, 1999, AT AN ISSUE PRICE OF __% OF ITS INITIAL
CERTIFICATE BALANCE INCLUDING ACCRUED INTEREST. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH OID OF ___% OF ITS INITIAL
CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _________% PER ANNUM, COMPOUNDED
MONTHLY, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS
___% OF ITS INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR THAT, IF THEY
DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) JULY __, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 6.54% CERTIFICATE BALANCE OF THIS CLASS J
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING AGREEMENT: $_________________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: JANUARY 15, 2015 CUSIP NO. 61745M NH 2
AGGREGATE CERTIFICATE BALANCE OF THE CLASS ISIN NO. US61745MNH24
J CERTIFICATES AS OF THE CLOSING DATE:
$6,049,000.00 NO. ___
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class J Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class J Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date
(except with respect to the Class G, Class H, Class J, Class K, Class L, Class
M, Class N and Class O Certificates by the registered owner of these
Certificates with an aggregate initial Certificate Balance (or in the case of
the Class X Certificates, a Notional Amount) of less than $50,000) or otherwise
by check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-13
[FORM OF CLASS K CERTIFICATE]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OR PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. 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. THIS
CERTIFICATE IS ISSUED ON JULY __, 1999, AT AN ISSUE PRICE OF __% OF ITS INITIAL
CERTIFICATE BALANCE INCLUDING ACCRUED INTEREST. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH OID OF ___% OF ITS INITIAL
CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _________% PER ANNUM, COMPOUNDED
MONTHLY, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS
___% OF ITS INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR THAT, IF THEY
DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) JULY __, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 6.54%
CERTIFICATE BALANCE OF THIS CLASS K
DATE OF POOLING AND SERVICING AGREEMENT: CERTIFICATE AS OF THE CLOSING DATE:
AS OF JULY 1, 1999 $___________
CUT-OFF DATE: JULY 1, 1999 MASTER SERVICER: CONNING ASSET
MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999
SPECIAL SERVICER: CONNING ASSET
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 MANAGEMENT COMPANY
SCHEDULED FINAL DISTRIBUTION TRUSTEE: THE CHASE MANHATTAN BANK
DATE: NOVEMBER 15, 2015
CUSIP NO. 61745M NJ 8
AGGREGATE CERTIFICATE BALANCE OF THE CLASS
K CERTIFICATES AS OF THE CLOSING DATE: ISIN NO. US61745MNJ89
$8,064,000.00
NO. ___
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class K Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class K Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record
Date(except with respect to the Class G, Class H, Class J, Class K, Class L,
Class M, Class N and Class O Certificates by the registered owner of these
Certificates with an aggregate initial Certificate Balance (or in the case of
the Class X Certificates, a Notional Amount) of less than $50,000) or otherwise
by check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-14
[FORM OF CLASS L CERTIFICATE]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OR PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. 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. THIS
CERTIFICATE IS ISSUED ON JULY __, 1999, AT AN ISSUE PRICE OF __% OF ITS INITIAL
CERTIFICATE BALANCE INCLUDING ACCRUED INTEREST. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH OID OF ___% OF ITS INITIAL
CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _________% PER ANNUM, COMPOUNDED
MONTHLY, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS
___% OF ITS INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR THAT, IF THEY
DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) JULY __, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 6.54% CERTIFICATE BALANCE OF THIS CLASS L
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING AGREEMENT: $___________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: MAY 15, 2016 CUSIP NO. 61745M NK 5
AGGREGATE CERTIFICATE BALANCE OF THE CLASS ISIN NO. US61745MNK52
L CERTIFICATES AS OF THE CLOSING DATE:
$6,049,000.00_ NO. ___
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class L Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class L Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date
(except with respect to the Class G, Class H, Class J, Class K, Class L, Class
M, Class N and Class O Certificates by the registered owner of these
Certificates with an aggregate initial Certificate Balance (or in the case of
the Class X Certificates, a Notional Amount) of less than $50,000) or otherwise
by check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-15
[FORM OF CLASS M CERTIFICATE]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OR PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. 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. THIS
CERTIFICATE IS ISSUED ON JULY __, 1999, AT AN ISSUE PRICE OF __% OF ITS INITIAL
CERTIFICATE BALANCE INCLUDING ACCRUED INTEREST. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH OID OF ___% OF ITS INITIAL
CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _________% PER ANNUM, COMPOUNDED
MONTHLY, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS
___% OF ITS INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR THAT, IF THEY
DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) JULY __, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 6.54% CERTIFICATE BALANCE OF THIS CLASS M
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING AGREEMENT: $___________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: JUNE 15, 2017 CUSIP NO. 61745M NL 3
AGGREGATE CERTIFICATE BALANCE OF THE CLASS ISIN NO. US61745MNL 36
M CERTIFICATES AS OF THE CLOSING DATE:
$6,048,000.00 NO. ___
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class M Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class M Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date
(except with respect to the Class G, Class H, Class J, Class K, Class L, Class
M, Class N and Class O Certificates by the registered owner of these
Certificates with an aggregate initial Certificate Balance (or in the case of
the Class X Certificates, a Notional Amount) of less than $50,000) or otherwise
by check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-16
[FORM OF CLASS N CERTIFICATE]
THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OR PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS N CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. 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. THIS
CERTIFICATE IS ISSUED ON JULY __, 1999, AT AN ISSUE PRICE OF __% OF ITS INITIAL
CERTIFICATE BALANCE INCLUDING ACCRUED INTEREST. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH OID OF ___% OF ITS INITIAL
CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _________% PER ANNUM, COMPOUNDED
MONTHLY, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS
___% OF ITS INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR THAT, IF THEY
DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) JULY __, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 6.54% CERTIFICATE BALANCE OF THIS CLASS N
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING AGREEMENT: $___________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: JANUARY 15, 2018 CUSIP NO. 61745M NM 1
AGGREGATE CERTIFICATE BALANCE OF THE CLASS ISIN NO. US61745MNM19
N CERTIFICATES AS OF THE CLOSING DATE:
$4,032,000.00 NO. ___
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class N Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account,
Distribution Account and Interest Reserve Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class N Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date
(except with respect to the Class G, Class H, Class J, Class K, Class L, Class
M, Class N and Class O Certificates by the registered owner of these
Certificates with an aggregate initial Certificate Balance (or in the case of
the Class X Certificates, a Notional Amount) of less than $50,000) or otherwise
by check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-17
[FORM OF CLASS O CERTIFICATE]
THIS CLASS O CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY
ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA AND SECTION 4975 OF THE CODE.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OR PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS O CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. 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. THIS
CERTIFICATE IS ISSUED ON JULY __, 1999, AT AN ISSUE PRICE OF __% OF ITS INITIAL
CERTIFICATE BALANCE INCLUDING ACCRUED INTEREST. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH OID OF ___% OF ITS INITIAL
CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _________% PER ANNUM, COMPOUNDED
MONTHLY, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS
___% OF ITS INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR THAT, IF THEY
DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) JULY __, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 6.54% CERTIFICATE BALANCE OF THIS CLASS O
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING AGREEMENT: $___________
AS OF JULY 1, 1999
MASTER SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 SPECIAL SERVICER: CONNING ASSET
MANAGEMENT COMPANY
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: THE CHASE MANHATTAN BANK
SCHEDULED FINAL DISTRIBUTION
DATE: SEPTEMBER 15, 2018 CUSIP NO. 61745M NN 9
AGGREGATE CERTIFICATE BALANCE OF THE CLASS ISIN NO. US61745MNN91
O CERTIFICATES AS OF THE CLOSING DATE:
$6,052,937.00 NO. ___
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class O Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class O Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date
(except with respect to the Class G, Class H, Class J, Class K, Class L, Class
M, Class N and Class O Certificates by the registered owner of these
Certificates with an aggregate initial Certificate Balance (or in the case of
the Class X Certificates, a Notional Amount) of less than $50,000) or otherwise
by check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-18
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE REGISTRAR,
THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED TO ANY
PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT A DISQUALIFIED ORGANIZATION OR AGENT
THEREOF OR A NON-UNITED STATES PERSON, AS SUCH TERMS ARE DEFINED IN THE POOLING
AND SERVICING AGREEMENT AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE
TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN
THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF
NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
PERCENTAGE INTEREST OF THIS CLASS R-I MASTER SERVICER: CONNING ASSET
CERTIFICATE: ___% MANAGEMENT COMPANY
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER: CONNING ASSET
AS OF JULY 1, 1999 MANAGEMENT COMPANY
CUT-OFF DATE: JULY 1, 1999 TRUSTEE: THE CHASE MANHATTAN BANK
CLOSING DATE: JULY 21, 1999 CUSIP NO. __________
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 NO. 1
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class R-I Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Class R-I Certificate Owner is
not entitled to interest or principal distributions. The Class R-I Certificate
Owner will be entitled to receive the proceeds of the remaining assets of REMIC
I, if any, on the latest Final Scheduled Distribution Date for the REMIC Regular
Certificates, after distributions in respect of any accrued but unpaid interest
on the REMIC Regular Certificates and after distributions in reduction of
principal balance have reduced the principal balances of the REMIC Regular
Certificates to zero. It is not anticipated that there will be any assets
remaining in REMIC I or Trust on the Final Scheduled Distribution Date following
the distributions on the REMIC Regular Certificates. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account, Distribution Account and Interest Reserve Account,
the Insurance Policies and any REO Properties. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-I Certificates specified on the face hereof. The Certificates are designated
as the Morgan Stanley Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1 and are issued in 21 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate represents a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(2) and 860D of the Code.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions on this Certificate will be made to the extent and
subject to the limitations set forth in the Pooling and Servicing Agreement, on
the 15th day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Trustee with wiring instructions no more than five business days
after the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
EXHIBIT A-19
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE REGISTRAR,
THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED TO ANY
PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT A DISQUALIFIED ORGANIZATION OR AGENT
THEREOF OR A NON-UNITED STATES PERSON, AS SUCH TERMS ARE DEFINED IN THE POOLING
AND SERVICING AGREEMENT AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE
TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CLASS R-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN
THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF
NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
PERCENTAGE INTEREST OF THIS CLASS R-II MASTER SERVICER: CONNING ASSET
CERTIFICATE: ___% MANAGEMENT COMPANY
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER: CONNING ASSET
AS OF JULY 1, 1999 MANAGEMENTCOMPANY
CUT-OFF DATE: JULY 1, 1999 TRUSTEE: THE CHASE MANHATTAN BANK
CLOSING DATE: JULY 21, 1999 CUSIP NO. __________
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 NO. 1
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class R-II Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Class R-II Certificate Owner is
not entitled to interest or principal distributions. The Class R-II Certificate
Owner will be entitled to receive the proceeds of the remaining assets of REMIC
II, if any, on the latest Final Scheduled Distribution Date for the REMIC
Regular Certificates, after distributions in respect of any accrued but unpaid
interest on the REMIC Regular Certificates and after distributions in reduction
of principal balance have reduced the principal balances of the REMIC Regular
Certificates to zero. It is not anticipated that there will be any assets
remaining in REMIC II or Trust on the Final Scheduled Distribution Date
following the distributions on the REMIC Regular Certificates. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account, Distribution Account and Interest
Reserve Account, the Insurance Policies and any REO Properties. To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Morgan Stanley Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1 and are issued in 21 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate represents a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(2) and 860D of the Code.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions on this Certificate will be made to the extent and
subject to the limitations set forth in the Pooling and Servicing Agreement, on
the 15th day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Trustee with wiring instructions no more than five business days
after the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
EXHIBIT A-20
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE REGISTRAR,
THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED TO ANY
PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT A DISQUALIFIED ORGANIZATION OR AGENT
THEREOF OR A NON-UNITED STATES PERSON, AS SUCH TERMS ARE DEFINED IN THE POOLING
AND SERVICING AGREEMENT AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE
TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN
THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF
NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
PERCENTAGE INTEREST OF THIS CLASS R-III MASTER SERVICER: CONNING ASSET
CERTIFICATE: ___% MANAGEMENT COMPANY
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER: CONNING ASSET
AS OF JULY 1, 1999 MANAGEMENT COMPANY
CUT-OFF DATE: JULY 1, 1999 TRUSTEE: THE CHASE MANHATTAN BANK
CLOSING DATE: JULY 21, 1999 CUSIP NO. __________
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 NO. 1
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class R-III Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Morgan Stanley
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Class R-III Certificate Owner is
not entitled to interest or principal distributions. The Class R-III Certificate
Owner will be entitled to receive the proceeds of the remaining assets of REMIC
III, if any, on the latest Final Scheduled Distribution Date for the REMIC
Regular Certificates, after distributions in respect of any accrued but unpaid
interest on the Certificates and after distributions in reduction of principal
balance have reduced the principal balances of the REMIC Regular Certificates to
zero. It is not anticipated that there will be any assets remaining in REMIC III
or Trust on the Final Scheduled Distribution Date following the distributions on
the REMIC Regular Certificates. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account, Distribution Account and Interest Reserve Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-III Certificates specified on the face hereof. The Certificates are designated
as the Morgan Stanley Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1 and are issued in 21 Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate represents a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(2) and 860D of the Code.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions on this Certificate will be made to the extent and
subject to the limitations set forth in the Pooling and Servicing Agreement, on
the 15th day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Trustee with wiring instructions no more than five business days
after the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
________________________________ account number ______________________ or, if
mailed by check, to ___________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
<PAGE>
EXHIBIT A-21
[FORM OF CLASS X CERTIFICATE]
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE,
SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF
THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. 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. THIS
CERTIFICATE IS ISSUED ON JULY __, 1999 AT AN ISSUE PRICE OF __% OF ITS INITIAL
NOTIONAL AMOUNT, INCLUDING ACCRUED INTEREST. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH OID OF ___% OF ITS INITIAL
NOTIONAL AMOUNT, THE YIELD TO MATURITY IS _____% PER ANNUM, COMPOUNDED MONTHLY,
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS ___% OF ITS
INITIAL NOTIONAL AMOUNT, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS
MADE THAT THE MORTGAGE LOANS WILL NO PREPAY OR THAT, IF THEY DO, THEY WILL
PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) JULY __, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-CAM1
INITIAL PASS-THROUGH RATE: 0.61555% AGGREGATE NOTIONAL AMOUNT OF THE
CLASS X CERTIFICATES AS OF THE
INITIAL NOTIONAL AMOUNT OF THIS CLASS X CLOSING DATE: $____________
CERTIFICATE: $806,455,937.00
MASTER SERVICER: CONNING ASSET
DATE OF POOLING AND SERVICING AGREEMENT: MANAGEMENT COMPANY
AS OF JULY 1, 1999
SPECIAL SERVICER: CONNING ASSET
CUT-OFF DATE: JULY 1, 1999 MANAGEMENT COMPANY
CLOSING DATE: JULY 21, 1999 TRUSTEE: THE CHASE MANHATTAN BANK
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 CUSIP NO. 61745M NP 4
ISIN NO. US61745MNP40
NO. ___
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT ____________ is the registered owner of the interest
evidenced by this Certificate in the Class X Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor," which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, Distribution Account and Interest Reserve Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class X Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
and are issued in 21 Classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of
the Available Distribution Amount, to the extent and subject to the limitations
set forth in the Pooling and Servicing Agreement, on the 15th day of each month
or, if such 15th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall
be allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date
(except with respect to the Class G, Class H, Class J, Class K, Class L, Class
M, Class N and Class O Certificates by the registered owner of these
Certificates with an aggregate initial Certificate Balance (or in the case of
the Class X Certificates, a Notional Amount) of less than $50,000) or otherwise
by check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in denominations of $100,000 initial
Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust and (B) the
disposition of all REO Property or (ii) the sale of the property held by the
Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
THE CHASE MANHATTAN BANK, as Certificate
Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, as
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________
__________________________
_____________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: _______________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
July __, 1999
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
General American Life Insurance Company
700 Market Street
St. Louis, MO 63101
Attention: Steve Traynor
The City and County of San Francisco Employee's
Retirement System Pension Trust
c/o Conning Asset Management Company
500 Fifth Avenue, Suite 3130
New York, New York 10036
Attention: Gregory White
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan and each Mortgage Note has been
endorsed as provided in clause (i) of the definition of "Mortgage File" of the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any such
documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the items
described in clauses (i) through (iii) of Section 13.12 of the Pooling and
Servicing Agreement in the event that the transfer of the Mortgage Loans is
determined not to be a sale.
<PAGE>
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Certificate is subject in all respects to the terms of
said Pooling and Servicing Agreement.
The Chase Manhattan Bank, as Trustee
By: ________________________________________
Name:
Title:
<PAGE>
SCHEDULE OF EXCEPTIONS
<PAGE>
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
_____ __, 1999
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
General American Life Insurance Company
700 Market Street
St. Louis, MO 63101
Attention: Steve Traynor
The City and County of San Francisco Employee's
Retirement System Pension Trust
c/o Conning Asset Management Company
500 Fifth Avenue, Suite 3130
New York, New York 10036
Attention: Gregory White
Re: Pooling And Servicing Agreement ("Pooling And Servicing Agreement")
Relating To Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (i) in the case of
the Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions to Mortgage
File delivery attached thereto, to the effect that: (A) all documents pursuant
to clauses (i) of the definition of Mortgage File are in its possession, (B)
such documents have been reviewed by it and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, and (C) each Mortgage Note has been endorsed as
provided in clause (i) of the definition of Mortgage File, and (ii) in the case
of the Final Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions to Mortgage
File delivery attached thereto, to the effect that: (A) all documents pursuant
to clauses (i), (ii), (iv), (v) and (viii) of the definition of Mortgage File
required to be included in the Mortgage File, and with respect to all documents
specified in the other clauses of the definition of Mortgage File to the extent
known by a Responsible Officer of the Trustee to be required pursuant to this
Agreement, are in its possession, (B) such documents have been reviewed by it
and have not been materially mutilated, damaged, defaced, torn or otherwise
physically altered, and such documents relate to such Mortgage Loan, (C) based
on its examination and only as to the Mortgage Note and Mortgage, the street
address of the Mortgaged Property and the name of the Mortgagor set forth in the
Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the
information contained in the documents in the Mortgage File, and (D) each
Mortgage Note has been endorsed and each Assignment of Mortgage has been
delivered as provided in clause (i) and clause (iv), respectively, of the
definition of Mortgage File. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File or any of the Trustee Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the items
described in clauses (i) through (iii) of Section 13.12 of the Pooling and
Servicing Agreement.
<PAGE>
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
The Chase Manhattan Bank, as Trustee
By: ______________________________________
Name:
Title:
<PAGE>
SCHEDULE OF EXCEPTIONS
<PAGE>
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: The Chase Manhattan Bank, as Trustee
450 West 33rd Street, 14th Floor
New York, NY 10001-2697
Attn: Capital Markets Fiduciary Services (CMBS)
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1
Date: ______ __, ____
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of July 1,
1999 by and among Morgan Stanley Capital I Inc., as Depositor, Conning Asset
Management Company, as Master Servicer and Special Servicer, and The Chase
Manhattan Bank, as Trustee (the "Pooling and Servicing Agreement"), the
undersigned hereby requests a release of the Trustee Mortgage File held by you
as Trustee with respect to the following described Mortgage Loan for the reason
indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all
amounts received in connection with the Mortgage Loan have
been or will be, following the [Master] [Special] Servicer's
release of the Trustee Mortgage File, credited to the
Certificate Account or the Distribution Account pursuant to
the Pooling and Servicing Agreement.)
_____ 2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the
Purchase Price has been credited to the Distribution Account
pursuant to the Pooling and Servicing Agreement.)
_____ 3. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and
delivered to you along with the related Trustee Mortgage File
pursuant to the Pooling and Servicing Agreement.)
_____ 4. The Mortgage Loan is being foreclosed.
_____ 5. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage File
will be held by the undersigned in accordance with the provisions of the Pooling
and Servicing Agreement and will be returned to you, except if the Mortgage Loan
has been paid in full, repurchased or substituted for by a Qualifying Substitute
Mortgage Loan (in which case the Trustee Mortgage File will be retained by us in
accordance with our normal document retention policy), when no longer required
by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
CONNING ASSET MANAGEMENT COMPANY
By: ________________________________________
Name:
Title:
<PAGE>
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[DATE]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attn: Capital Markets Fiduciary Services (CMBS)
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1, (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
a Certificate (the "Transferred Certificate") having an initial Certificate
Balance or Notional Amount as of July 21, 1999 (the "Closing Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of July 1, 1999,
among Morgan Stanley Capital I Inc. as depositor (the "Depositor"), Conning
Asset Management Company, as master servicer and special servicer, and The Chase
Manhattan Bank, as trustee. All terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificate with the full right to transfer such Certificate free from any
and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of any Certificate
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Certificate a violation of Section 5
of the Securities Act or any state securities laws, or would require
registration or qualification of any Certificate pursuant to the
Securities Act or any state securities laws.
Very truly yours,
(Transferor)
By:
Name:
Title
<PAGE>
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[DATE]
The Chase Manhattan Bank, as Certificate Registrar
450 West 33rd Street, 14th Floor
New York, NY 10001-2697
Attn: Capital Markets Fiduciary Services (CMBS)
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificate, Series 1999-CAM1 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ ________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Certificate Balance or Notional Amount as of July 21, 1999 (the "Closing Date")
of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of July 1,
1999, among Morgan Stanley Capital I Inc. as depositor (the "Depositor"),
Conning Asset Management Company, as master servicer and special servicer and
The Chase Manhattan Bank, as trustee. All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, and
for the benefit of the Depositor and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"), and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Certificate for its own account or
for the account of a qualified institutional buyer, and understands that such
Certificate or any interest therein may be resold, pledged or transferred only
(i) to a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the Securities Act.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificate belongs have not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Certificates
and (c) no interest in the Certificates may be sold or transferred unless (i)
such Certificates are registered pursuant to the Securities Act and registered
or qualified pursuant to any applicable state securities laws or (ii) such
interest sold or transferred in transactions which are exempt from such
registration and qualification and the Certificate Owner desiring to effect such
transfer has received either (A) a certification from such Certificate Owner's
prospective transferee (substantially in the form attached to the Pooling and
Servicing Agreement) setting forth the facts surrounding the transfer or (B) an
opinion of counsel satisfactory to the Certificate Registrar with respect to the
availability of such exemption, together with copies of the certification(s)
from the transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will
bear the following legend:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION
OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. With respect to any Transferred Certificate that is a Class G,
Class H, Class J, Class K, Class L, Class M, Class N or Class O Certificate,
Transferee understands that each Transferred Certificate will bear the following
legend:
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY
OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH
THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
6. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation with respect to any Certificate, any interest in any Certificate or
any other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Certificate, any
interest in any Certificate or any other similar security, which (in the case of
any of the acts described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act, would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities law or would require registration
or qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any person
to act, in any manner set forth in the foregoing sentence with respect to any
Certificate, any interest in any Certificate or any other similar security.
7. The Transferee has been furnished with all information regarding
(a) the Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement, and
(d) any credit enhancement mechanism associated with the Transferred
Certificate, that it has requested.
Very truly yours,
_________________________________________
(Transferee)
By:
Name:
Title:
<PAGE>
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor, the Trustee and the
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $____________________(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, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. bank, and not more than
18 months preceding such date of sale for a foreign bank or
equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of
sale for a foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, 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.
____________________
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
Will the Transferee be purchasing the Transferred
Certificates
___ ___ only for the Transferee's own account
Yes No
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.
<PAGE>
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
Print Name of Transferee
By:
Name:
Title:
Date:
<PAGE>
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") , and for the benefit of the Depositor, the Trustee and the
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), because
the Transferee is part of a Family of Investment Companies (as defined below),
is an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Will the Transferee be purchasing the Transferred
Certificate
___ ___ only for the Transferee's own account
Yes No
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificate will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
Print Name of Transferee
By:
Name:
Title:
Date:
<PAGE>
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attn: Capital Markets Fiduciary Services (CMBS)
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of Class ___ Certificates having an initial Certificate
Balance or Notional Amount as of July 21, 1999 (the "Closing Date") of
$__________ (the "Transferred Certificates"). The Certificates, including the
Transferred Certificates, were issued pursuant to the Pooling and Servicing
Agreement, dated as of July 1, 1999 (the "Pooling and Servicing Agreement"),
among Morgan Stanley Capital I Inc., as depositor (the "Depositor"), Conning
Asset Management Company, as master servicer and special servicer and The Chase
Manhattan Bank as trustee. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificates belong has not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class of
Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant any
applicable state securities laws or (ii) sold or transferred in transactions
which are exempt from such registration and qualification and the Certificate
Registrar has received either: (A) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
D-1 to the Pooling and Servicing Agreement and a certificate from such
Certificateholder's prospective transferee substantially in the form attached
either as Exhibit D-2A or as Exhibit D-2B to the Pooling and Servicing
Agreement; or (C) an opinion of counsel satisfactory to the Certificate
Registrar with respect to the availability of such exemption from registration
under the Securities Act, together with copies of the written certification(s)
from the transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the provisions of
Section 3.3 of the Pooling and Servicing Agreement, which provisions it has
carefully reviewed.
4. Transferee understands that each Transferred Certificate will
bear the following legend:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF
THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
5. With respect to any Transferred Certificate that is a Class G,
Class H, Class J, Class K, Class L, Class M, Class N or Class O Certificate,
Transferee understands that each Transferred Certificate will bear the following
legend:
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
6. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation with respect to any Certificate, any interest in any Certificate or
any other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Certificate, any
interest in any Certificate or any other similar security, which (in the case of
any of the acts described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act, would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities law or would require registration
or qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any person
to act, in any manner set forth in the foregoing sentence with respect to any
Certificate, any interest in any Certificate or any other similar security.
7. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (d) the nature, performance and servicing of the Mortgage Loans, and
(e) all related matters, that it has requested.
<PAGE>
8. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
_________________________________________
(Transferee)
By:
Name:
Title:
<PAGE>
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attn: Capital Markets Fiduciary Services (CMBS)
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates having an initial Certificate Balance or Notional
Amount as of July 21, 1999 (the "Closing Date") of $__________ (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of July 1, 1999
(the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I Inc., as
depositor (the "Depositor"), Conning Asset Management Company, as master
servicer and special servicer, and The Chase Manhattan Bank, as trustee. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act") and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is
aware that the sale to it of the Transferred Certificates is being made in
reliance on Rule 144A. The Transferee is acquiring the Transferred
Certificates for its own account or for the account of a Qualified
Institutional Buyer, and understands that such Transferred Certificates
may be resold, pledged or transferred only (i) to a person reasonably
believed to be a Qualified Institutional Buyer that purchases for its own
account or for the account of a Qualified Institutional Buyer to whom
notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Transferred Certificates and distributions thereon, (b)
the nature, performance and servicing of the Mortgage Loans, (c) the
Pooling and Servicing Agreement, and (d) any credit enhancement mechanism
associated with the Transferred Certificates, that it has requested.
3. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation with
respect to any Certificate, any interest in any Certificate or any other
similar security by means of general advertising or in any other manner,
or (e) taken any other action with respect to any Certificate, any
interest in any Certificate or any other similar security, which (in the
case of any of the acts described in clauses (a) through (e) above) would
constitute a distribution of the Transferred Certificates under the
Securities Act, would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of the
Transferred Certificates pursuant thereto. The Transferee will not act,
nor has it authorized or will it authorize any person to act, in any
manner set forth in the foregoing sentence with respect to any
Certificate, any interest in any Certificate or any other similar
security.
Very truly yours,
(Transferee)
By:
Name:
Title:
<PAGE>
ANNEX 1 TO EXHIBIT D-3A
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 commercial mortgage pass-through certificates
being transferred (the "Transferred Certificates") as described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(2) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. bank, and not more than
18 months preceding such date of sale for a foreign bank or
equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of
sale for a foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and 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.
____________________
(2) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
___ 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.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
Will the Transferee be purchasing the Transferred
Certificates
___ ___ only for the Transferee's own account
Yes No
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.
<PAGE>
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
________________________________________
Print Name of Transferee
By:
Name:
Title:
Date:
<PAGE>
ANNEX 2 TO EXHIBIT D-3A
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 commercial mortgage pass-through certificate
being transferred (the "Transferred Certificates") as described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Will the Transferee be purchasing the Transferred
Certificates
___ ___ only for the Transferee's own account
Yes No
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.
________________________________________
Print Name of Transferee or Adviser
By:
Name:
Title:
IF AN ADVISER:
________________________________________
Print Name of Transferee
Date:
<PAGE>
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificate, Series 1999-CAM1 (the "Certificates)
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Certificate Balance or Notional Amount as of July 21, 1999 (the "Closing Date")
of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of July 1,
1999, among Morgan Stanley Capital I Inc., as depositor (the "Depositor"),
Conning Asset Management Company, as master servicer and special servicer and
The Chase Manhattan Bank, as trustee. All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, and
for the benefit of the Depositor and the Trustee, that:
1. The Transferee is an institutional "accredited investor" as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of an investment in the Certificates; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such an investment and can afford a complete loss of
such investment. The Transferee is acquiring the Transferred Certificate for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee or the Certificate Registrar is obligated so to register or qualify
the Certificates and (c) no interest in the Certificates may be sold or
transferred unless (i) such Certificates are registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable state
securities laws or (ii) such interest sold or transferred in transactions which
are exempt from such registration and qualification and the Certificate Owner
desiring to effect such transfer has received either (A) a certification from
such Certificate Owner's prospective transferee (substantially in the form
attached to the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an opinion of counsel satisfactory to the
Certificate Registrar with respect to the availability of such exemption,
together with copies of the certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which such
opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate.
Very truly yours,
_________________________________________
(Transferee)
By:
Name:
Title:
<PAGE>
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says
that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Morgan Stanley Capital I Inc.,
Mortgage Pass-Through Certificates, Series 1999-CAM1, Class [R-I] [R-II]
[R-III], evidencing a ____% Percentage Interest in such Class (the "Residual
Certificates")), a ________________ duly organized and validly existing under
the laws of ____________________, on behalf of which he/she makes this
affidavit. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement
pursuant to which the Residual Certificates were issued (the "Pooling and
Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "disqualified organization" or a possession of the United States. (For
this purpose, a "disqualified organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor or, if such transfer is through an agent (which
Person includes a broker, nominee or middleman) for a non-Permitted Transferee,
on the agent; (iii) that the Person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such Person an
affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury regulation Section 1.860E-1(c) and that
the transferor of a "noneconomic residual interest" will remain liable for any
taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _____________.
8. The Transferee has reviewed the provisions of Section 3.3(e) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Certificates (in particular, clause (F) of Section 3.3(e)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a Person other than the Transferee and clause (G) of Section 3.3(e) which
authorizes the Trustee to negotiate a mandatory sale of the Residual
Certificates, in either case, in the event that the Transferee holds such
Residual Certificates in violation of Section 3.3(e)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale
of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee has historically paid its debts as they have come
due and that the Transferee intends to pay any taxes associated with holding the
Residual Certificates as they become due, fully understanding that it may incur
tax liabilities in excess of any cash flows generated by the Residual
Certificates.
11. The Transferee will, in connection with any transfer that it
makes of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
12. The Transferee is a citizen or resident of the United States, a
corporation or a partnership organized in or under the laws of the United States
or any political subdivision thereof (other than a partnership that is not
treated as a U.S. Person under any applicable Treasury regulations), an estate
the income of which from sources outside the United States is includible in
gross income for 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 of the
administration of the trust and one or more U.S. Persons have the authority to
control all substantial decisions of the trust. In addition, certain trusts
treated as U.S. Persons before August 20, 1996 may elect to continue to be so
treated to the extent provided in regulations.
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 this day
of ___________, ____.
[NAME OF TRANSFEREE]
By: ________________________________________
[Name of Officer]
[Title of Officer]
<PAGE>
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On _______________ before me, ______________________________
Date Name and Title of Officer (i.e.,
Your Name, Notary Public)
personally appeared ____________________________________________________________
Name(s) of Document Signer(s)
________________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
Signature of Notary
(Affix seal in the above blank space)
<PAGE>
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 19__
The Chase Manhattan Bank,
as Certificate Registrar
450 West 33rd Street, 14th Floor
New York, NY 10001-2697
Attn: Capital Markets Fiduciary Services (CMBS)
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of July 1, 1999 (the "Pooling and
Servicing Agreement"), among Morgan Stanley Capital I Inc., as Depositor,
Conning Asset Management Company, as Master Servicer and Special Servicer, and
The Chase Manhattan Bank, as Trustee. All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered
to you a Transfer Affidavit and Agreement in the form attached to the Pooling
and Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
cc: The Chase Manhattan Bank, as Trustee
450 West 33rd Street, 14th Floor
New York, NY 10001-2697
Attn: Capital Markets Fiduciary Services (CMBS)
<PAGE>
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
_____________________________________________
(Transferor)
By:__________________________________________
Name:________________________________________
Title:_______________________________________
<PAGE>
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-CAM1, CLASS ___ (THE "CERTIFICATES")
TO: Morgan Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
or
CEDEL, S.A.
This is to certify that as of the date hereof, and except as set
forth below, the above-captioned Certificates held by you or on your behalf for
our account are beneficially owned by (a) non -U.S person(s) or (b) U.S.
person(s) who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Certificates held by you or on your behalf for our account in accordance with
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of
such beneficial interest in the above Certificates in respect of which we are
not able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
<PAGE>
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, 199__
By:__________________________________________
As, or as agent for, the beneficial
owner(s) of the Certificates to which this
certificate relates.
<PAGE>
EXHIBIT G
RESERVED
<PAGE>
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, _____
TO: The Depository Trust Company
CEDEL BANK, S. A. or
Morgan Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Conning Asset Management, as Master Servicer
The Chase Manhattan Bank, as Trustee
The Chase Manhattan Bank, as Certificate Registrar
Attn: Capital Markets Fiduciary Services (CMBS)
This is to notify you as to the transfer of the beneficial interest
in $_______________ of Morgan Stanley Capital I Inc. Commercial Mortgage
Pass-Through Certificates, Series 1999-CAM1, Class __(the "Certificates").
The undersigned is the owner of a beneficial interest in the Class
__ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and
requests that on [INSERT DATE], (i) [Euroclear] [CEDEL] [DTC] debit account
#__________, with respect to $__________ principal denomination of the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and (ii)
[DTC] [Euroclear] [CEDEL] credit the beneficial interest of the below-named
purchaser, account #__________, in the Class __ [Rule 144A-IAI Global
Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer I D. No.:
The undersigned hereby represents that this transfer is being made
in accordance with an exemption from the provisions of Section 5 of the United
States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act][an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act and
in accordance with any applicable securities laws of any state of the United
States and, if the purchaser has purchased the Certificates for one or more
accounts for which it is acting as fiduciary or agent, each such account is a
qualified institutional buyer or an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act]
and that the purchaser is acquiring beneficial interests in the applicable
Certificate3 for its own account or for one or more institutional accounts for
which it is acting as fiduciary or agent in a minimum amount equivalent to not
less than U.S. $100,000 and integral multiples of U.S. $1 in excess thereof for
each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By: ________________________________________
[Name], [Chief Financial
or other Executive Officer]
____________________
3 [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE FOREGOING
REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON ANY TRANSFER
OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN GLOBAL FORM.]
<PAGE>
EXHIBIT I
FORM OF EUROCLEAR OR CEDEL CERTIFICATE
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-CAM1, CLASS (THE "CERTIFICATES")
TO: The Chase Manhattan Bank, as Certificate Registrar
Attn: Capital Markets Fiduciary Services (CMBS)
The Chase Manhattan Bank, as Trustee
450 West 33rd Street, 14th Floor
New York, NY 10001-2697
Attn: Capital Markets Fiduciary Services (CMBS)
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of July 1, 1999 (the "Pooling and Servicing
Agreement") among you both, [_____________], [_______________ and Conning Asset
Management, U.S. $__________ principal amount of the above-captioned
Certificates held by us or on our behalf are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Certificates in transactions
that did not require registration under the United States Securities Act of
1933, as amended (the "Securities Act"). As used in this paragraph, the term
"U.S. person" has the meaning given to it by Regulation S under the Securities
Act.
We further certify that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Certificates identified above are no longer true and cannot be relied upon as of
the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class
__ Regulation S Temporary Global Certificate shall be exchanged for an interest
in the Class __ Regulation S Permanent Global Certificate (as each such term is
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated:
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, Brussels office,
as operator of the Euroclear
System]
or
[CEDEL BANK, S.A.]
By: ________________________________________
<PAGE>
EXHIBIT J
SERVICING FEE SCHEDULE
- -------------------------------------------------------------------------------
EXCESS
SERVICING FEE
TAB # PROPERTY NAME RATE
- -------------------------------------------------------------------------------
1 Century Park Office Building 0.1275%
2 Landow Office Building 0.3300%
3 Del Norte Plaza 0.1275%
4 Picture Tel Office Building 0.1275%
5 Club Hotel & Suites by Doubletree 0.1275%
6 Ram's Village Apartments 0.1275%
7 Walsh Research Center 0.2100%
8 45 West 45th Street 0.2100%
9 Downtown Woodinville Retail Development #2 0.1275%
10 Mid Rivers Plaza Shopping Center 0.1275%
11 Pahrump Valley Junction Shopping Center 0.1275%
12 Ogden Mall 0.2100%
13 Westlake Village Marketplace 0.1275%
14 Ingram Micro Inc. Facility 0.2100%
15 Greylyn Business Park 0.1275%
16 1700 Pennsylvania Avenue, N.W. 0.1275%
17 Federal Express 0.2100%
18 Fairview Center 0.1275%
19 Stoneridge II Office Building 0.2100%
20 Fort Collier Industrial Park 0.1275%
21 Battelle Environmental Technology Bldg. 0.1275%
22 Parkview Office Building 0.2100%
23 Arboretum IV Office Building 0.2100%
24 Drury Inn - Union Station 0.1275%
25 Marketplace of Augusta-Phase 2 0.1275%
26 Sonora Quest Laboratories 0.1275%
27 Winder Corners Shopping Center 0.1275%
28 Battelle Energy & Environmental Sciences Bldg. 0.1275%
29 Encino Spectrum 0.1275%
30 Seventh Street Properties 0.2100%
31 Townview Square Shopping Center 0.1275%
32 Highridge Apartments 0.2100%
33 Federal Express 0.2100%
34 Seven Corners Corporate Center 0.1275%
35 The Mark Office Building 0.1275%
36 Rancho Viejo Apartments 0.2100%
37 Eastway Crossing Shopping Center 0.3600%
38 Fair Oaks Medical Plaza 0.1275%
39 First Data Office Building 0.1275%
40 1301 Connecticut Avenue, N.W. 0.1275%
41 Downtown Woodinville Retail Development #1 0.1275%
42 Melbourne Square Promenade 0.1275%
43 Glen Place Shopping Center 0.1275%
44 Richmond Plaza Shopping Center 0.2100%
45 Ocean Terrace Apartments 0.1275%
46 Pheasant Run Apartments 0.1275%
47 Liberty Crossing 0.1275%
48 Loganville Town Center 0.3300%
49 Danbury Commons Shopping Center 0.1275%
50 Dairy Ashford Plaza Office Building 0.1275%
51 Mt. Vernon Center 0.1275%
52 Norwalk Plaza 0.1275%
53 Magnolia Plaza 0.1275%
54 Atrium Circle At Campus Circle 0.1275%
55 Fair Oaks Professional Building 0.1275%
56 Orthologics Building 0.1275%
57 Home Depot 0.1275%
58 General Instruments Building 0.1275%
59 1875 Charleston Road 0.2100%
60 Mountain View Professional Plaza 0.1275%
61 Ventana Village Shopping Center 0.1275%
62 MA Bioservices 0.1275%
63 65 K Street 0.1275%
64 655 5th Avenue 0.2100%
65 14600 Winchester Blvd. 0.1275%
66 Best Buy 0.1275%
67 Village Grove Shopping Center 0.1275%
68 6006 Executive Boulevard 0.1275%
69 University Business Center 0.2100%
70 4215 Glencoe 0.1275%
71 Snowcreek Crossing 0.1275%
72 Lighthouse Crossing Shopping Center 0.1275%
73 Best Buy 0.1275%
74 Creekside Office Park 0.1275%
75 Lithonia Lighting West Building 0.1275%
76 5353-5499 Downey Road 0.1275%
77 Prince Frederick Office Park 0.1275%
78 Walgreens and Staples 0.1275%
79 Townley Apartments 0.1275%
80 Bay Tree Village 0.1275%
81 Bugaboo Steak House 0.1275%
82 Cotswold Plaza II 0.1275%
83 Lake Regency Building 0.1275%
84 Merit Abrasiveproducts Inc. 0.1275%
85 Totem Ridge Business Park 0.1275%
86 DSHS Office Building 0.3600%
87 Stafford Corporate Center 0.1275%
88 Best Buy 0.1275%
89 R and R Plaza 0.1275%
90 Best Buy 0.1275%
91 Circuit City - Colorado Springs 0.1275%
92 204TH Street Partners 0.1275%
93 Commons 1 Office Building 0.1275%
94 Hayden Island Business Park 0.1275%
95 Quail Business Park 0.1275%
96 NW Corner of Hwy 74 & Mail Street 0.1275%
97 Sportmart Plaza 0.1275%
98 Spectrum Business ParkV 0.1275%
99 Northwest Business Center III 0.1275%
100 Mizner Place 0.1275%
101 Kroger 0.1275%
102 Food 4 Less 0.1275%
103 Oxford Hill Apartments 0.1275%
104 Linens N' Things 0.1275%
105 Parklane Centre 0.1275%
106 Goldseker Industrial Portfolio 0.1275%
107 Walgreens 0.2100%
108 Cahners Publishing Company 0.1275%
109 Safeway 0.1275%
110 Walden Woods Village Shopping Center 0.1275%
111 Grand Terrace Shopping Center 0.1275%
112 2199 Innerbelt Business Center Drive 0.1275%
113 Kohl's 0.1275%
114 Office Max 0.1275%
115 Meadows Pavillion II 0.1275%
116 Bernardo Gateway Business Park 0.1275%
117 1371 & 1375 N. Miller Street 0.1275%
118 Blakely Corners Shopping Center 0.1275%
119 Sparks Medical Office Building 0.1275%
120 North Canal Office Park 0.1275%
121 Federal Express 0.1275%
122 Behr Processing Building 0.1275%
123 The Shoppes at Salisbury II 0.1275%
124 Walgreens 0.1275%
125 Eckerd Drug Store 0.2100%
126 Shop N' Kart Discount Grocery 0.1275%
127 Office Max 0.1275%
128 Eckerd Drug Store 0.2100%
129 Office Max 0.1275%
130 DEA Building 0.1275%
131 56th Street Commerce Park 0.1275%
132 4520 36th Street 0.1275%
133 Pacific Park 0.1275%
134 Walgreens 0.1275%
135 North Roseburg Plaza 0.1275%
136 Probity International Corp 0.1275%
137 NOAA-National Weather Service Building 0.1275%
138 Winchester Court 0.1275%
139 2400 E. Francis 0.1275%
140 Walgreens 0.1275%
141 Walgreens 0.1275%
142 The Shoppes at Salisbury 0.1275%
143 Ames Department Store 0.1275%
144 Eckerd Drug Store 0.1275%
145 Pier I Office Building 0.1275%
146 Harstad/Coates Industrial Park 0.1275%
147 Blockbuster Video 0.1275%
148 Walgreens 0.1275%
149 Walgreens 0.1275%
150 Airpark Holdings I 0.1275%
151 Walgreens 0.1275%
152 The McCormick Executive Center Office Building 0.1275%
153 Blockbuster Video 0.1275%
- -------------------------------------------------------------------------------
TOTALS/WEIGHTED AVERAGES
- -------------------------------------------------------------------------------
<PAGE>
EXHIBIT K
RESERVED
<PAGE>
EXHIBIT L
FORM OF INSPECTION REPORT
<PAGE>
<TABLE>
<CAPTION>
===============================================================================================
CONNING ASSET MANAGEMENT COMPANY
Commercial Mortgage Servicing
Annual Property Evaluation Report -
Office/Retail/Ind.
Report Date: Lender No:
===============================================================================================
<S> <C> <C>
-----------------------------------------------
CAMC FILE NO:
-----------------------------------------------
PROPERTY ADDRESS:
-----------------------------------------------
-----------------------------------------------
PROPERTY TYPE:
-----------------------------------------------
PRIMARY USE:
-----------------------------------------------
SECONDARY USE:
-----------------------------------------------
OTHER USE:
-----------------------------------------------
CURRENT OCCUPANCY:
-----------------------------------------------
BUILDING SIZE NET:
-----------------------------------------------
NO. OF BUILDINGS:
-----------------------------------------------
NO. OF UNITS:
-----------------------------------------------
===============================================================================================
YEAR BUILT: Managed by:
-----------------------------------------------------------------------------------------------
YEAR RENOVATED: Phone:
-----------------------------------------------------------------------------------------------
LAND SIZE: On-Site:
===============================================================================================
===============================================================================================
-----------------------------------------------------------------------------------------------
DATE OF PROPERTY INSPECTION: INSPECTED BY:
-----------------------------------------------------------------------------------------------
DATE REVIEWED: REVIEWED BY:
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
CONDITION OF THE PROPERTY (ATTACH PHOTOGRAPHS - EXTERIOR AND NEIGHBORING: PROPERTIES):
-----------------------------------------------------------------------------------------------
<CAPTION>
DEFERRED
EXTERIOR EXCELLENT GOOD FAIR POOR MAINTENANCE
--------
<S> <C> <C> <C> <C> <C>
LANDSCAPING [ ] [ ] [ ] [ ] [ ]
PAVED AREAS [ ] [ ] [ ] [ ] [ ]
SIDEWALKS [ ] [ ] [ ] [ ] [ ]
EXTERIOR FINISH [ ] [ ] [ ] [ ] [ ]
ROOF [ ] [ ] [ ] [ ] [ ]
GENERAL MAINTENANCE [ ] [ ] [ ] [ ] [ ]
-----------------------------------------------------------------------------------------------
COMMENTS (EXPLAIN DEFERRED
MAINTENANCE)
-----------------------------------------------------------------------------------------------
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
PAGE 1 OF 2
<PAGE>
<TABLE>
<CAPTION>
=============================================================================================
Interior Excellent Good Fair Poor N/A Deferred
Maintenance
<S> <C> <C> <C> <C> <C> <C>
ENTRY/HALLWAYS [ ] [ ] [ ] [ ] [ ] [ ]
WALLS/CEILINGS [ ] [ ] [ ] [ ] [ ] [ ]
LIGHTING [ ] [ ] [ ] [ ] [ ] [ ]
CARPET/FLOOR [ ] [ ] [ ] [ ] [ ] [ ]
COVERING
STAIRS [ ] [ ] [ ] [ ] [ ] [ ]
ELEVATORS [ ] [ ] [ ] [ ] [ ] [ ]
KITCHEN/BATHROOMS [ ] [ ] [ ] [ ] [ ] [ ]
HVAC/MECHANICAL [ ] [ ] [ ] [ ] [ ] [ ]
FUNCTIONAL UNITY [ ] [ ] [ ] [ ] [ ] [ ]
OVERALL PHYSICAL [ ] [ ] [ ] [ ] [ ] [ ]
CONDITION
---------------------------------------------------------------------------------------------
COMMENTS:
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
=============================================================================================
STRONG STABLE WEAK
MARKET STRENGTH [ ] [ ] [ ]
IMPROVING STABLE DECLINING
ECONOMIC TREND [ ] [ ] [ ]
IMPROVING STABLE DECLINING
NEIGHBORHOOD TREND [ ] [ ] [ ]
EXCELLENT GOOD FAIR POOR
MAINTENANCE OF [ ] [ ] [ ] [ ]
NEIGHBORING
PROPERTIES
EXCELLENT GOOD FAIR POOR
OCCUPANCY OF [ ] [ ] [ ] [ ]
NEIGHBORING
PROPERTIES
---------------------------------------------------------------------------------------------
REGIONAL ANALYSIS:
=============================================================================================
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
PAGE 2 OF 2
<PAGE>
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
DIST DATE: 16-Aug-1999 BOND PAYMENT SUMMARY PAGE # 1-1
RECORD DATE: 30-Jul-1999
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Collateral
Support
Original Beginning Prepayment Deficit Ending
Certificate Certificate Principal Interest Penalties Allocation/ Total Certificate
Class Cusip # Balance Balance Distribution Distribution (PP/YMC) (Reimb) Distribution Balance
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
Original Beginning Prepayment Ending
Notional Notional Interest Penalties Total Notional
Class Cusip # Amount Amount Distribution (PP/YMC) Distribution Balance
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
</TABLE>
Factor Information Per $1,000
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Beginning Prepayment Ending Current Next
Certificate Principal Interest Penalties Certificate Pass Through Pass Through
Class Cusip # Balance Distribution Distribution (PP/YMC) Balance Rate Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Factor Information Per $1,000
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------
Beginning Prepayment Ending
Notional Interest Penalties Notional
Class Cusip # Balance Distribution (PP/YMC) Balance
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------
</TABLE>
If there are any questions or comments, please contact the Administrator listed
below.
SusanLai
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10001
212-946-3228
CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER
[LOGO OMITTED] (copyright) 1998, CHASE MANHATTAN BANK
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
DIST DATE: 16-Aug-1999 BOND PAYMENT SUMMARY PAGE # 2-1
RECORD DATE: 30-Jul-1999
<TABLE>
<CAPTION>
<S> <C>
Sec.4.2 (a)(iii) P&I Advances
Sec.4.2 (a)(iv) Number of Mortgage Loans Outstanding as of Close of Business
Sec.4.2 (a)(v) Realized Losses
Sec.4.2 (a)(vi) Aggregate Stated Principal Balance
Sec.4.2 (a)(vii) Aggregate Unpaid Principal Balance
Sec.4.2 (a)(viii) Principal Balance of REO Loan and REO Date
Sec.4.2 (a)(ix) REO Proceeds from Final Recovery Determination and Date
Sec.4.2 (a)(x) Outstanding Principal Balance of REO loans and Appraisal
Sec.4.2 (a)(xi) Servicing Compensation
Sec.4.2 (a)(xii) Special Servicing Fee
Sec.4.2 (a)(xiii) Prepayment Premium
Yield Maintenance
Excess Interest
Sec.III.2 (a)(xiv) Default Interest
</TABLE>
---------------------------
Class Loss Amount
---------------------------
---------------------------
---------------------------------------
Loan Number Balance Date
---------------------------------------
---------------------------------------
---------------------------------------
Loan Number Proceeds Date
---------------------------------------
---------------------------------------
---------------------------------------
Loan Number Balance Date
---------------------------------------
---------------------------------------
CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER
[LOGO OMITTED] (copyright) 1998, CHASE MANHATTAN BANK
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
DIST DATE: 16-Aug-1999 BOND PAYMENT SUMMARY PAGE # 2-2
RECORD DATE: 30-Jul-1999
Sec.III.2 (a)(xv) Appraisal Reduction
------------------------------------------
Reduction Reduction
Loan Number Amount Date
------------------------------------------
------------------------------------------
CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER
[LOGO OMITTED] (copyright) 1998, CHASE MANHATTAN BANK
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
Distribution Mortgage of Loan Characteristics
DIST DATE: 16-Aug-1999
RECORD DATE: 30-Jul-1999
STRATIFICATION BY ENDING SCHEDULED BALANCE AMOUNT
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
ENDING SCHEDULED # OF PRINCIPAL % OF AGG. WEIGHTED AVERAGE
------------------------------
BALANCE AMOUNT LOANS BALANCE ($) PRIN. BAL. WAM NOTE RATE(%) DSCR
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
$1,000,000 or less 0 0.00 0.00 0 0.000000 0.000000
$1,000,001 to $2,000,000 0 0.00 0.00 0 0.000000 0.000000
$2,000,001 to $4,000,000 0 0.00 0.00 0 0.000000 0.000000
$4,000,001 to $6,000,000 0 0.00 0.00 0 0.000000 0.000000
$6,000,001 to $8,000,000 0 0.00 0.00 0 0.000000 0.000000
$8,000.001 to $10,000,000 0 0.00 0.00 0 0.000000 0.000000
$10,000,001 to $15,000,000 0 0.00 0.00 0 0.000000 0.000000
$15,000,001 to $20,000,000 0 0.00 0.00 0 0.000000 0.000000
- -------------------------------------------------------------------------------------------------
TOTALS 0 0.00 0.00 0 0.000000 0.000000
- -------------------------------------------------------------------------------------------------
AVERAGE PRINCIPAL BALANCE 0.00
</TABLE>
STRATIFICATION BY CURRENT NOTE RATE
PAGE # 3-1
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------
# OF PRINCIPAL % OF AGG. WEIGHTED AVERAGE
--------------------------------
CURRENT NOTE RATE LOANS BALANCE ($) PRIN. BAL. WAM NOTE RATE(%) DSCR
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
7.50000% or less 0 0.00 0.00 0 0.000000 0.000000
7.51000% to 7.75000% 0 0.00 0.00 0 0.000000 0.000000
7.76000% to 8.00000% 0 0.00 0.00 0 0.000000 0.000000
8.01000% to 8.25000% 0 0.00 0.00 0 0.000000 0.000000
8.26000% to 8.50000% 0 0.00 0.00 0 0.000000 0.000000
8.51000% to 8.75000% 0 0.00 0.00 0 0.000000 0.000000
8.76000% to 9.00000% 0 0.00 0.00 0 0.000000 0.000000
9.01000% to 9.25000% 0 0.00 0.00 0 0.000000 0.000000
9.26000% to 9.50000% 0 0.00 0.00 0 0.000000 0.000000
9.51000% to 9.75000% 0 0.00 0.00 0 0.000000 0.000000
9.75000% to 10.00000% 0 0.00 0.00 0 0.000000 0.000000
10.01000% to 11.01000% 0 0.00 0.00 0 0.000000 0.000000
- ------------------------------------------------------------------------------------------
TOTALS 0 0.00 0.00 0 0.000000 0.000000
- ------------------------------------------------------------------------------------------
</TABLE>
CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
Distribution Mortgage of Loan Characteristics
DIST DATE: 16-Aug-1999
RECORD DATE: 30-Jul-1999
STRATIFICATION BY REMAINING STATED TERM (BALLOON LOANS ONLY)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
# OF PRINCIPAL % OF AGG. WEIGHTED AVERAGE
------------------------------
REMAINING STATED TERM LOANS BALANCE ($) PRIN. BAL. WAM NOTE RATE(%) DSCR
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
70 months or Less 0 0.00 0.00 0 0.000000 0.000000
71 months to 90 months 0 0.00 0.00 0 0.000000 0.000000
91 months to 110 months 0 0.00 0.00 0 0.000000 0.000000
111 months to 115 months 0 0.00 0.00 0 0.000000 0.000000
116 months to 120 months 0 0.00 0.00 0 0.000000 0.000000
121 months to 200 months 0 0.00 0.00 0 0.000000 0.000000
201 months to 274 months 0 0.00 0.00 0 0.000000 0.000000
- -------------------------------------------------------------------------------------------------
TOTALS 0 0.00 0.00 0 0.000000 0.000000
- -------------------------------------------------------------------------------------------------
</TABLE>
STRATIFICATION BY REMAINING STATED TERM (FULLY AMORTIZING LOANS ONLY)
PAGE # 3-2
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
# OF PRINCIPAL % OF AGG. WEIGHTED AVERAGE
--------------------------------------
REMAINING STATED TERM LOANS BALANCE ($) PRIN. BAL. WAM NOTE RATE(%) DSCR
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
70 months or Less 0 0.00 0.00 0 0.000000 0.000000
71 months to 90 months 0 0.00 0.00 0 0.000000 0.000000
91 months to 110 months 0 0.00 0.00 0 0.000000 0.000000
111 months to 115 months 0 0.00 0.00 0 0.000000 0.000000
116 months to 120 months 0 0.00 0.00 0 0.000000 0.000000
121 months to 200 months 0 0.00 0.00 0 0.000000 0.000000
201 months to 0 months 0 0.00 0.00 0 0.000000 0.000000
- ------------------------------------------------------------------------------------------------
TOTALS 0 0.00 0.00 0 0.000000 0.000000
- ------------------------------------------------------------------------------------------------
</TABLE>
CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
<TABLE>
<CAPTION>
DIST DATE: 16-AUG-1999 DISTRIBUTION MORTGAGE OF LOAN CHARACTERISTICS PAGE # 3 - 3
RECORD DATE: 30-Jul-1999
STRATIFICATION BY DEBT SERVICE COVERAGE RATIO
- -----------------------------------------------------------------------------------------
WEIGHTED AVERAGE
DEBT SERVICE # OF PRINCIPAL % OF AGG. --------------------------------
COVERAGE RATIO LOANS BALANCE($) PRIN. BAL. WAM NOTE RATE(%) DSCR
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1.00x or Less 0 0.00 0.00 0 0.000000 0.000000
1.01x to 1.20x 0 0.00 0.00 0 0.000000 0.000000
1.21x to 1.24x 0 0.00 0.00 0 0.000000 0.000000
1.25x to 1.30x 0 0.00 0.00 0 0.000000 0.000000
1.31x to 1.40x 0 0.00 0.00 0 0.000000 0.000000
1.41x to 1.50x 0 0.00 0.00 0 0.000000 0.000000
1.51x to 1.60x 0 0.00 0.00 0 0.000000 0.000000
1.61x to 1.70x 0 0.00 0.00 0 0.000000 0.000000
1.71x to 1.80x 0 0.00 0.00 0 0.000000 0.000000
1.81x to 1.90x 0 0.00 0.00 0 0.000000 0.000000
1.91x to 2.00x 0 0.00 0.00 0 0.000000 0.000000
2.01x to 2.30x 0 0.00 0.00 0 0.000000 0.000000
2.31x to 2.40x 0 0.00 0.00 0 0.000000 0.000000
- -----------------------------------------------------------------------------------------
TOTALS 0 0.00 0.00 0 0.000000 0.000000
- -----------------------------------------------------------------------------------------
<CAPTION>
STRATIFICATION BY SEASONING
- ------------------------------------------------------------------------------------
WEIGHTED AVERAGE
# OF PRINCIPAL % OF AGG. ----------------------------
SEASONING LOANS BALANCE($) PRIN. BAL. WAM NOTE RATE(%) DSCR
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
12 months or Less 0 0.00 0.00 0 0.000000 0.000000
13 months to 24 months 0 0.00 0.00 0 0.000000 0.000000
25 months to 36 months 0 0.00 0.00 0 0.000000 0.000000
37 months to 48 months 0 0.00 0.00 0 0.000000 0.000000
49 months to 60 months 0 0.00 0.00 0 0.000000 0.000000
61 months to 72 months 0 0.00 0.00 0 0.000000 0.000000
73 months to 84 months 0 0.00 0.00 0 0.000000 0.000000
85 months to 96 months 0 0.00 0.00 0 0.000000 0.000000
97 months to 108 months 0 0.00 0.00 0 0.000000 0.000000
- ------------------------------------------------------------------------------------
TOTALS 0 0.00 0.00 0 0.000000 0.000000
- ------------------------------------------------------------------------------------
</TABLE>
CONNING ASSET MANAGEMENT COMPANT
MASTER SERVICER
[LOGO OMITTED] (copyright) 1998, CHASE MANHATTAN BANK
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
<TABLE>
<CAPTION>
DIST DATE: 16-AUG-1999 DISTRIBUTION MORTGAGE OF LOAN CHARACTERISTICS PAGE # 3 - 4
RECORD DATE: 30-Jul-1999
STRATIFICATION BY STATE CODE
- -----------------------------------------------------------------------------------------
WEIGHTED AVERAGE
# OF PRINCIPAL % OF AGG. -------------------------------
STATE CODE LOANS BALANCE($) PRIN. BAL. WAM NOTE RATE(%) DSCR
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
ARIZONA 0 0.00 0.00 0 0.000000 0.000000
CALIFORNIA 0 0.00 0.00 0 0.000000 0.000000
COLORADO 0 0.00 0.00 0 0.000000 0.000000
CONNECTICUT 0 0.00 0.00 0 0.000000 0.000000
FLORIDA 0 0.00 0.00 0 0.000000 0.000000
GEORGIA 0 0.00 0.00 0 0.000000 0.000000
ILLINOIS 0 0.00 0.00 0 0.000000 0.000000
INDIANA 0 0.00 0.00 0 0.000000 0.000000
MASSACHUSETTS 0 0.00 0.00 0 0.000000 0.000000
MARYLAND 0 0.00 0.00 0 0.000000 0.000000
MICHIGAN 0 0.00 0.00 0 0.000000 0.000000
MISSOURI 0 0.00 0.00 0 0.000000 0.000000
NEW JERSEY 0 0.00 0.00 0 0.000000 0.000000
NEW YORK 0 0.00 0.00 0 0.000000 0.000000
OHIO 0 0.00 0.00 0 0.000000 0.000000
OREGON 0 0.00 0.00 0 0.000000 0.000000
PENNSYLVANIA 0 0.00 0.00 0 0.000000 0.000000
SOUTH CAROLINA 0 0.00 0.00 0 0.000000 0.000000
TENNESSEE 0 0.00 0.00 0 0.000000 0.000000
TEXAS 0 0.00 0.00 0 0.000000 0.000000
VIRGINIA 0 0.00 0.00 0 0.000000 0.000000
- -----------------------------------------------------------------------------------------
TOTALS 0 0.00 0.00 0 0.000000 0.000000
- -----------------------------------------------------------------------------------------
<CAPTION>
STRATIFICATION BY PROPERTY TYPE
- ------------------------------------------------------------------------------------
WEIGHTED AVERAGE
# OF PRINCIPAL % OF AGG. ----------------------------
PROPERTY TYPE LOANS BALANCE($) PRIN. BAL. WAM NOTE RATE(%) DSCR
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Office 0 0.00 0.00 0 0.000000 0.000000
Industrial 0 0.00 0.00 0 0.000000 0.000000
Multi-Family 0 0.00 0.00 0 0.000000 0.000000
Retail, Anchored 0 0.00 0.00 0 0.000000 0.000000
Retail, Unanchored 0 0.00 0.00 0 0.000000 0.000000
Ministorage 0 0.00 0.00 0 0.000000 0.000000
Multiple 0 0.00 0.00 0 0.000000 0.000000
- ------------------------------------------------------------------------------------
TOTALS 0 0.00 0.00 0 0.000000 0.000000
- ------------------------------------------------------------------------------------
</TABLE>
Debt Coverage Service Ratios are calculated as described in the prospectus,
values are updated periodically as new NOI figures become available from
borrowers on an asset level. The TRUSTEE makes no representation as to
the accuracy of the data provided by the borrower for this calculation
CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER
[LOGO OMITTED] (copyright) 1998, CHASE MANHATTAN BANK
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
DIST DATE: 16-Aug-1999 HISTORICAL INFORMATION PAGE # 4-1
RECORD DATE: 30-Jul-1999
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Delinquencies Prepayments Rates & Maturities
---------------------------------------------------------------------------- ----------------------- ------------------
Modifi-
1 Month 2 Months 3 Months(+) Foreclosures REO cations Curtailment Payoff Next Weighted Avg.
Distrib. --------- ---------- ----------- ------------ ---------- --------- ----------- ---------- ------------------
Date # Balance # Balance # Balance # Balance # Balance # Balance # Balance # Balance Coupon Remit WAM
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
06/16/99 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0.000000 0.000000 0
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FORECLOSURES AND REO TOTALS ARE EXCLUDED FROM THE DELINQUENT AGING
CATEGORIES
CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER
[LOGO OMITTED] (copyright) 1998, CHASE MANHATTAN BANK
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
<TABLE>
<CAPTION>
DIST DATE: 16-Aug-1999 LOAN STATUS DETAIL PAGE# 5-1
RECORD DATE: 30-Jul-1999
- -----------------------------------------------------------------------------------------------------------------------------------
Loan Offering Property Standard State Principal & Interest Gross Maturity Neg Beginning
Number Memo Type Metropolitan Payment Coupon Date Amt Scheduled Balance
Cross (I) Statistical Flag
Reference Area
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
EXAMPLE N/A N/A N/A N/A $0.00 .00000 N/A N/A $0.00
</TABLE>
Ending Scheduled Paid Appraisal Appraisal Has Loan Loan
Balance Through Reduction Reduction Ever Been Status
Date Date Amount Serviced? Code
(Y/N) (II)
- -------------------------------------------------------------------------------
$0.00 N/A N/A $0.00 N N/A
<TABLE>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
(I) PROPERTY TYPE CODE: 6. Non-Exempt 12. Hotel (II) LOAN STATUS CODE:
1. Single Family 7. Church 13. Industrial 1. Specially Serviced 6. Discounted Payoff
2. Multi-Family 8. School,HCF,WF 14. Industrial/Flex 2. Foreclosure 7. Foreclosure Sale
3. Condo, Co-op or TH 9. Retail 15. Multiple Properties 3. Bankruptcy 8. Bankruptcy Sale
4. Mobile Home 10. Office 16. MiniStorage 4. REO 9. REO Disposal
5. Plan Unit Development 11. Retail/Office 32. Warehouse 5. Prepayment in Full 10. Modification/Workout
11. Rehabilitation
- ------------------------------------------------------------------------------------------------------------------------------------
[LOGO OMITTED] CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER (c) 1998, CHASE MANHATTAN BANK
</TABLE>
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
<TABLE>
<CAPTION>
DIST DATE: 16-Aug-1999 DELINQUENCY DETAIL PAGE# 6-1
RECORD DATE: 30-Jul-1999
- ------------------------------------------------------------------------------------------------------------------------------------
Loan Number Offering # of Months Paid Through Current Loan Balance Current Outstanding P&I Advance
Memo Cross Delinquent Date P&I Advances ** Description
Reference Advances
(1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
NO DELINQUENT LOANS REPORTED THIS PERIOD
<CAPTION>
Loan Special Foreclosure Current Property Outstanding Outstanding REO Date
Status Servicer Date Protection Property Property
Start Date Advances Protection Bankruptcy
(II) Advances Date
- ---------------------------------------------------------------------------------------------------------
NO DELINQUENT LOANS REPORTED THIS PERIOD
- ------------------------------------------------------------------------------------------------------------------------------------
(I) ADVANCE DESCRIPTION: A. In grace period (II) LOAN STATUS CODE:
B. Late but (less than) 1 month 1. Specially Serviced 6. Discounted Payoff
1. 1 month delinquent 2. Foreclosure 7. Foreclosure Sale
2. 2 months delinquent 3. Bankruptcy 8. Bankruptcy Sale
3. 3+ months delinquent 4. REO 9. REO Disposal
5. Prepayment in Full 10. Modification/Workout
11. Rehabilitation
** Outstanding P&I advances include current period.
- ------------------------------------------------------------------------------------------------------------------------------------
[LOGO OMITTED] CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER (c) 1998, CHASE MANHATTAN BANK
</TABLE>
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
<TABLE>
<CAPTION>
DIST DATE: 16-Aug-1999 MODIFIED LOAN DETAIL PAGE# 7-1
RECORD DATE: 30-Jul-1999
- ------------------------------------------------------------------------------------------------------------------------------------
Loan Offering Modification Modification Description
Number Memorandum Date
Cross
Reference
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
NO MODIFIED LOANS REPORTED THIS PERIOD
- ------------------------------------------------------------------------------------------------------------------------------------
[LOGO OMITTED] CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER (c) 1998, CHASE MANHATTAN BANK
</TABLE>
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ADVANCED SUMMARY
DIST DATE: 16-AUG-1999 PAGE # 8-1
RECORD DATE: 30-JUL-1999
Master Servicer P&I Advances Made
Master Servicer Unreimbursed P&I Advanced Outstanding
Interest Accrued & Payable to Master Servicer in Respect of Advances Made
SERVICING FEE BREAKDOWN
Current Period Accrued Servicing Fees
Less Delinquent Servicing Fees
Plus Additional Servicing Fees
Less Reductions to Servicing Fees
Plus Servicing Fees For Delinquent Payments Received
Plus Adjustment for Prior Servicing Calculations
Total Servicing Fees Collected
ALLOCATION OF INTEREST SHORTFALLS, LOSSES & EXPENSES
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
CLASS ACCRUED CERTIFICATE PREPAYMENT INTEREST BEGINNING UNPAID INTEREST LOSS
INTEREST SHORTFALL INTEREST
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
EXPENSES TOTAL INTEREST PAYABLE CERTIFICATE INTEREST ENDING UNPAID
DISTRIBUTABLE INTEREST
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER
- --------------------------------------------------------------------------------
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
REALIZED LOSS DETAIL
DIST DATE: 16-AUG-1999 PAGE # 9-1
RECORD DATE: 30-JUL-1999
- --------------------------------------------------------------------------------------------------------------
LOAN OFERING APPRAISAL APPRAISAL VALUE BEGINNING GROSS PROCEEDS GROSS
NUMBER MEMO DATE SCHEDULED PROCEEDS %
CROSS BALANCE SCHEDULED
REFERENCE PRINCIPAL
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------
LIQUIDATION NET NET REALIZED LOSS
EXPENSES LIQUIDATION PROCEEDS %
PROCEEDS SCHEDULED
BALANCE
- --------------------------------------------------------------
NO REALIZED LOSSES REPORTED THIS PERIOD
</TABLE>
- --------------------------------------------------------------------------------
CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER
- --------------------------------------------------------------------------------
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
SPECIALLY SERVICED LOANS DETAIL
DIST DATE: 16-AUG-1999 PAGE #10-1
RECORD DATE: 30-JUL-1999
- --------------------------------------------------------------------------------------------------------------------
DISTRIBUTION LOAN O SS SPEC CURRENT BALANCE PROP ST INTEREST NET
DATE NUMBER M TRANSFER SERV SCHEDULE TRANSFER TYPE RATE OPERATING
C DATE CODE BALANCE DATE INCOME
R (II) (I)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------
NOI DEBT MATURITY REM INSPECTION APPRAISAL APPRAISAL
DATE SERVICE DATE TERM DATE DATE VALUE
COVERAGE
RATIO
- -------------------------------------------------------------------------------------------------
NO SPECIALLY SERVICED LOANS REPORTED THIS PERIOD
- -------------------------------------------------------------------------------------------------
</TABLE>
(I)PROPERTY TYPE CODE: 6. Non-Exempt 12. Hotel
1. Single Family 7. Church 13. Industrial
2. Multi-Family 8. School, HCF, WF 14. Industrial/Flex
3. Condo, Co-op or TH 9. Retail 15. Multiple Properties
4. Mobile Home 10. Office 16. MiniStorage
5. Plan Unit Development 11. Retail/Office 32. Warehouse
(II) SPECIAL SERVICE CODE:
(1) Request to waive prepayment penalty (5) In Foreclosure
(2) Payment default (6) Now REO
(3) Request to modify or workout (7) Paid Off
(4) Borrower Bankruptcy (8) Returned to Master Servicer
- --------------------------------------------------------------------------------
CONNING ASSET MANAGEMENT COMPANY
MASTER SERVICER
- --------------------------------------------------------------------------------
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-CAM1
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
PRINCIPAL PREPAYMENT DETAIL
DIST DATE: 16-AUG-1999 PAGE # 11-1
RECORD DATE: 30-JUL-1999
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
LOAN OFFERING CURTAILMENT AMOUNT PAYOFF NET NET MORTGAGE
NUMBER MEMO AMOUNT LIQUIDATION INSURANCE REPURCHASE
CROSS PROCEEDS PROCEEDS PRICE
REFERNCE
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
NO PRINCIPAL PREPAYMENT REPORTED THIS PERIOD
- --------------------------------------------------------------------------------
</TABLE>
CONNING ASSET MANGEMENT COMPANY
MASTER SERVICER
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT N
FORM OF ANNUAL REPORT
<PAGE>
<TABLE>
<CAPTION>
===============================================================================================
CONNING ASSET MANAGEMENT COMPANY
Commercial Mortgage Servicing
Annual Property Evaluation Report -
Multifamily.
Report Date: Lender No:
===============================================================================================
<S> <C> <C>
-----------------------------------------------
CAMC FILE NO:
-----------------------------------------------
BORROWER:
-----------------------------------------------
PROPERTY ADDRESS:
-----------------------------------------------
PROPERTY TYPE:
-----------------------------------------------
PRIMARY USE:
-----------------------------------------------
SECONDARY USE:
-----------------------------------------------
OTHER USE:
-----------------------------------------------
CURRENT OCCUPANCY:
-----------------------------------------------
OCCUPANCY TYPE:
-----------------------------------------------
BUILDING SIZE NET S/F
RENTABLE:
-----------------------------------------------
NO. OF BUILDINGS:
-----------------------------------------------
NO. OF APT. UNITS:
-----------------------------------------------
===============================================================================================
<CAPTION>
<S> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------
APT UNIT BREAKDOWN:
STUDIO # RENT 1 BR #______ RENT __________ 2 BR #______ RENT _________
3 BR#_______ RENT OTHER RENT __________ DESCRIPTION:___________________
-----------------------------------------------------------------------------------------------
YEAR BUILT:
-----------------------------------------------------------------------------------------------
YEAR RENOVATED: Offsite Management
-----------------------------------------------------------------------------------------------
LAND SIZE: Phone:
-----------------------------------------------------------------------------------------------
# OF PARKING UNCOVERED On-Site Contact:
SPACES: COVERED
===============================================================================================
-----------------------------------------------------------------------------------------------
DATE OF PROPERTY INSPECTION: INSPECTED BY:
-----------------------------------------------------------------------------------------------
DATE REVIEWED: REVIEWED BY:
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
CONDITION OF THE PROPERTY (ATTACH PHOTOGRAPHS - EXTERIOR AND NEIGHBORING: PROPERTIES):
-----------------------------------------------------------------------------------------------
<CAPTION>
EXTERIOR EXCELLENT GOOD FAIR POOR
--------
<S> <C> <C> <C> <C>
LANDSCAPING [ ] [ ] [ ] [ ]
PAVED AREAS [ ] [ ] [ ] [ ]
SIDEWALKS [ ] [ ] [ ] [ ]
EXTERIOR FINISH [ ] [ ] [ ] [ ]
ROOF [ ] [ ] [ ] [ ]
GENERAL MAINTENANCE [ ] [ ] [ ] [ ]
-----------------------------------------------------------------------------------------------
COMMENTS (EXPLAIN DEFERRED
MAINTENANCE)
===============================================================================================
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
PAGE 1 OF 2
<PAGE>
<TABLE>
<CAPTION>
=============================================================================================
Interior Excellent Good Fair Poor N/A Deferred
Maintenance
<S> <C> <C> <C> <C> <C> <C>
ENTRY/HALLWAYS [ ] [ ] [ ] [ ] [ ] [ ]
WALLS/CEILINGS [ ] [ ] [ ] [ ] [ ] [ ]
LIGHTING [ ] [ ] [ ] [ ] [ ] [ ]
CARPET/FLOOR [ ] [ ] [ ] [ ] [ ] [ ]
COVERING
STAIRS [ ] [ ] [ ] [ ] [ ] [ ]
ELEVATORS [ ] [ ] [ ] [ ] [ ] [ ]
KITCHEN/BATHROOMS [ ] [ ] [ ] [ ] [ ] [ ]
HVAC/MECHANICAL [ ] [ ] [ ] [ ] [ ] [ ]
FUNCTIONAL UNITY [ ] [ ] [ ] [ ] [ ] [ ]
OVERALL PHYSICAL [ ] [ ] [ ] [ ] [ ] [ ]
CONDITION
---------------------------------------------------------------------------------------------
COMMENTS:
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
=============================================================================================
STRONG STABLE WEAK
MARKET STRENGTH [ ] [ ] [ ]
IMPROVING STABLE DECLINING
ECONOMIC TREND [ ] [ ] [ ]
IMPROVING STABLE DECLINING
NEIGHBORHOOD TREND [ ] [ ] [ ]
EXCELLENT GOOD FAIR POOR
MAINTENANCE OF [ ] [ ] [ ] [ ]
NEIGHBORING
PROPERTIES
EXCELLENT GOOD FAIR POOR
OCCUPANCY OF [ ] [ ] [ ] [ ]
NEIGHBORING
PROPERTIES
---------------------------------------------------------------------------------------------
REGIONAL ANALYSIS:
=============================================================================================
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
PAGE 2 OF 2
<PAGE>
<TABLE>
<CAPTION>
-------------------------------------------------------------
CONNING ASSET MANAGEMENT CO. - OPERATING STATEMENT REVIEW
-------------------------------------------------------------
--------------------------------
LOAN#
----------------
INVESTOR# Completed
----
PROPERTY TYPE Reviewed
----------------
CITY/STATE
--------------------------------
---------------- ------------- ------------ ------------
# OF MONTHS 12 12
ANNUALIZED (Y/N) No No
---------------- ------------- ------------ ------------
12/31/98 12/31/97 12/31/96 At Issue
<S> <C> <C> <C> <C>
---------------- ------------- ------------ ------------
GROSS RENTS
---------------- ------------- ------------ ------------
REIMBURSEMENTS
---------------- ------------- ------------ ------------
TOTAL INCOME
---------------- ------------- ------------ ------------
VACANCY
---------------- ------------- ------------ ------------
DISCOUNTS/CONCESSIONS
---------------- ------------- ------------ ------------
OTHER INCOME
---------------- ------------- ------------ ------------
EFFECTIVE GROSS INCOME
---------------- ------------- ------------ ------------
---------------- ------------- ------------ ------------
PROPERTY TAXES
---------------- ------------- ------------ ------------
INSURANCE
---------------- ------------- ------------ ------------
UTILITIES
---------------- ------------- ------------ ------------
MANAGEMENT
---------------- ------------- ------------ ------------
MAINT & REPAIRS
---------------- ------------- ------------ ------------
SALARIES & ADMIN
---------------- ------------- ------------ ------------
ADVERTISING
---------------- ------------- ------------ ------------
GROUND LEASE
---------------- ------------- ------------ ------------
OTHER
---------------- ------------- ------------ ------------
TOTAL OPER EXPENSES
---------------- ------------- ------------ ------------
NOI
---------------- ------------- ------------ ------------
---------------- ------------- ------------ ------------
CAPITAL RESERVES
---------------- ------------- ------------ ------------
TI/LC RESERVES
---------------- ------------- ------------ ------------
OTHER
---------------- ------------- ------------ ------------
NOI
---------------- ------------- ------------ ------------
DEBT SERVICE
---------------- ------------- ------------ ------------
DSCR
---------------- ------------- ------------ ------------
---------------- ------------- ------------ ------------
OCCUPANCY
---------------- ------------- ------------ ------------
AS OF
---------------- ------------- ------------ ------------
</TABLE>
COMMENTS
Information contained herein has been furnished by borrowers, property
managers, or other outside parties, and therefore no assurances are made by
Wells Fargo Bank as to the accuracy or completeness of such information.
<PAGE>
EXHIBIT O
FORM OF SPECIAL SERVICER MONTHLY REPORT
<PAGE>
DELINQUENT AND SPECIALLY SERVICED ASSET REPORT
<TABLE>
<CAPTION>
Offering Paid Unpaid Scheduled Special
Circular Loan Property Maturity Through Unpaid Balance Principal Principal Servicer
Control# Number Type City State Date Date At Transfer Date Balance Balance Transfer Date
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Offering Reason
Circular Transfer Resolution Current Outstanding Advance Outstanding Property Purpose of Property
Control# to SS (1) Status (2) P&I Advance P&I Advances Description (3) Protection Advances Protection Advances
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Offering
Circular Appraisal Appraisal NOI Latest Debt Service Latest Latest Inspection Foreclosure
Control# Date Value Date Annual NOI Coverage Ratio Occupancy Date Occupancy % Date Date
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Offering
Circular Bankruptcy Brief Description of Site Inspection, Foreclosure
Control# Date REO Date Proceedings, or Negotiations w/Mortgager
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C>
</TABLE>
(3) 0. P&I Advance - Late Payment but (less than) one month delinquent
Advance 1. P&I Advance - Loan delinquent 1 month
Description 2. P&I Advance - Loan delinquent 2 months
3. P&I Advance - Loan delinquent 3 months or more
4. P&I Advance - Loan in Grace Period
5. P&I Advance - Assumed Scheduled Payment
<PAGE>
Determination Date:
Due Date:
Loan Group:
Delinquent and
Specially Serviced Asset Report
<TABLE>
<CAPTION>
Special Servicing Status
Codes
Sched. Paid Transfer Resol.
Loan Prop. Asset Balance to Transfer Reason Status
No. Type City State Type ($000) Date Date (1) (2)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Cash Flow Data Occupancy Appraisal Data
Monthly Total Latest Latest Latest Latest Latest
P&I Cumul. Op. Annual Occu- Occu- Latest Appr.
Loan Pmt. Advance Stmt. NOI Latest pancy pancy Appr. Value Latest
No. ($000) ($000) Date ($000) DSCR Date (%) Date ($000) LTV
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
- --------------------------------------------------- --------------------------------------------------------
(1) Reason for Transfer to Special Servicer (2) Resolution Status
<S> <C> <C> <C> <C>
1. Not _______ (00 only) 5. Bankruptcy 1. Status pending 7. Bankruptcy
2. Request for 6. Tax or Insurance borrower negotiations 8. REO or loan sale in
forebearance or advance 2. Negotiations in process
modification 7. Nonpayment default process to cure 9. Loan repurchase pending
3. Payment default 8. Other default 10. Corrected & monitoring
4. Balloon default 3. Extension of maturity for return to Master
in process Servicer
4. Modification in
process
5. Foreclosure in process
6. Intent to foreclose
- --------------------------- ----------------------- --------------------------- ----------------------------
</TABLE>
Information contained herein has been furnished by borrowers,
property managers, or other outside persons and therefore no
assurances are made by _________________ as to the accuracy or
correctness of such information.
<PAGE>
CSSA
Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
DELINQUENT LOAN STATUS REPORT
as of ___________________
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
S62 or
S4 S55 S61 S57 S58 S63 P8 P7 P37 P39 P38
- -------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d) (e) =a+b+c+d
- -------------------------------------------------------------------------------------------------------------------------
Total Other
Short Name Paid Scheduled P&I Total Advances
Prospectus (When Property Sq Ft or Thru Loan Advances Expenses (Taxes & Total
ID Appropriate) Type City State Units Date Balance To Date To Date Escrow) Exposure
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90+ DAYS DELINQUENT
- -------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- -------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- -------------------------------------------------------------------------------------------------------------------------
Current & at Special
Servicer
- -------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------------------------
S4 P25 P10 P11 P58 P54 P55 P81 P74
- --------------------------------------------------------------------------------------------------
(f)=P38/P81
- --------------------------------------------------------------------------------------------------
Value
using
Current Current ***Cap NOI
Prospectus Monthly Interest Maturity LTM NOI LTM Rate & Cap Valuation
ID P&I Rate Date Date LTM NOI DSCR Assigned Rate Date
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90+ DAYS DELINQUENT
- --------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- --------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- --------------------------------------------------------------------------------------------------
Current & at Special
Servicer
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
</TABLE>
FCL - Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12 months
* Workout Strategy should match the CSSA Loan file using abbreviated words in
place of a code number such as (FCL -- in Foreclosure, MOD -- Modification,
DPO -- Discount Payoff, NS -- Note Sale, BK -- Bankruptcy, PP -- Payment
Plan, TBD -- To Be Determined.
It is possible to combine the status codes if the loan is going in more
than one direction. (i.e. FCL/Mod, BK/Mod, BK/FCL/DPO)
** App -- Appraisal, BPO -- Broker opinion, Int. -- Internal Value
*** How to determine the cap rate is agreed upon by Underwriter and servicers
-- to be provided by a third party.
<PAGE>
CSSA
Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
DELINQUENT LOAN STATUS REPORT
as of ___________________
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 P75 P35
- ------------------------------------------------------------------------------------------------------
(g)=(.92*f) (h)=(g/_)
- ------------------------------------------------------------------------------------------------------
Appraisal Total
Short Name BPO or Loss using Estimated Appraisal
Prospectus (When Property Internal 92% Appr. Recovery Reduction
ID Appropriate) Type City State Value ** or BPO (f) % Realized
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
90 + DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------
60 + DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------
Current & at Special
Servicer
- ------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------
S4 P77 P79 P42 P82 P76
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
FCL Expected
Prospectus Transfer Resolution Start FCL Sale Workout
ID Date Date Date Date Strategy Comments
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
90 + DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------
60 + DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------
Current & at Special
Servicer
- ------------------------------------------------------------------------------------------------------
</TABLE>
FCL-Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12 months
<PAGE>
CSSAS
Commercial Mortgage Pass-Through, Series 1999-CAM1
REO STATUS REPORT
as of ___________________
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 S62 or P8 P7 P37 P39 P38
- ---------------------------------------------------------------------------------------------------------------------------------
S63 (a) (b) (c) (d)
- ---------------------------------------------------------------------------------------------------------------------------------
Other
Paid Total P&I Total Advances
Short Name Property Sq Ft or Thru Scheduled Advances Expenses (Taxes &
Prospectus ID (When Appropriate) Type City State Units Date Loan Balance To Date To Date Escrow)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
S4 P25 P11 P58 P54 P81 P74 P75
- ---------------------------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (k) (j) (f)=(k/j) (g) (h)=(.92*g)
- ---------------------------------------------------------------------------------------------------------------------------------
Appraisal
Current Value using BPO or Loss Using
Total Monthly Maturity LTM LTM NOI/ Cap Rate Valuation NOI & Internal 92% Appr.
Prospectus ID Exposure P&I Date NOI Date DSC Assign *** Date Cap Rate Value or BPO(1)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- ----------------------------------------------------------------------------------
S4 P35 P77 P88 P79
- ----------------------------------------------------------------------------------
(i)=(g/c)
- ----------------------------------------------------------------------------------
Total
Estimated Appraisal REO Pending
Recovery Reduction Transfer Acquisition Resolution
Prospectus ID % Realized Date Date Date
- ----------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
(1) Use the following codes: App -- Appraisal, BPO -- Brokers Opinion, Int --
Internal Value
*** How to determine the cap rate is agreed upon by Underwiter and servicers --
to be provided by a third party.
<PAGE>
CSSA
Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
COMPARATIVE FINANCIAL STATUS REPORT
as of ___________________
<TABLE>
<CAPTION>
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
S4 S57 S58 P7 P8 S72 S69 S70 S65
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Original Underwriting
- ------------- --------- --------- ----------- --------- ---------- --------- --------------------------------------------
Information
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------------------- ---------
Under Year
- ------------- --------- --------- ----------- --------- ---------- --------- --------------------- ---------- ---------
Last Financial
Property Scheduled Paid Annual Info
Prospectus Inspect Loan Thru Debt as of % Total $
Id City State Date Balance Date Service Date Occ Revenue NOI
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
yy/mm yy/mm
- ----------------------------------------------------------------------------------------------------------------------------------
List all properties currently in deal with or without information largest to smallest loan
- ----------------------------------------------------------------------------------------------------------------------------------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
Total: $ $ WA $ $
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
Received
- ------------- --------- --------- ----------- --------- ---------- --------- --------------------------------- ---------
Financial Information: Loans Balance
- ------------------------------------------------ --------- ---------- --------- --------------------- ---------------------
$ % $ %
- ----------------------------------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
Current Full Year:
- ----------------------------------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
Current Full Yr. received with DSC<1:
- ----------------------------------------------------------- ---------- --------- ---------- --------- ---------- ---------
Prior Full Year:
- ----------------------------------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
Prior Full Yr. received with DSC<1:
- ----------------------------------------------------------- ---------- --------- ---------- --------- ---------- ---------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
- ----------------------------------------------------------------------------------------------------------------------------------
(1) DSCR should match to Operating Statement and is normally calculated using
NOI/Debt Service.
- ----------------------------------------------------------------------------------------------------------------------------------
(2) Net change should compare the latest year to the underwriting year.
- ----------------------------------------------------------------------------------------------------------------------------------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
</TABLE>
<PAGE>
TABLE (CONTINUED)
<TABLE>
<CAPTION>
- ------------- ---------- --------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
S4 S66 P65 P64 P59 P61 P63 P58 P57 P53 P54
- ------------- ---------- --------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2nd Preceding Annual Operating Preceding Annual Operating
- ------------- ---------- ------------------------------------------------------- ----------------------------------------------
Information Information
- ------------- ---------- --------- --------------------- ---------- --------- ---------- --------------------- ---------
as of _______ Normalized as of _______ Normalized
- ------------- ---------- --------------------- --------- --------------------- --------------------- ---------- -----------
Financial Financial
Info Info
Prospectus (1) as of % Total $ (1) as of % Total $
Id DSCR Date Occ Revenue NOI DSCR Date Occ Revenue NOI
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
yy/mm yy/mm
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------------------------------ ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
Total: WA WA $ $ WA WA $ $
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
Required
- ------------- ---------- -------------------------------- ---------- --------- ------------ ------- ---------- ---------
Financial
Information Loans Balance
- ------------------------- --------------------- --------------------- --------- ------------ ------- ---------- ---------
$ % $ %
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------------------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------------------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------------------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------------------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
- ------------- ---------- --------- ---------- --------- ---------- --------- ------------ ------- ---------- ---------
(1) DSCR should match to Operating Statement and is normally calculated using
NOI/Debt Service.
- --------------------------------------------------------------------------------------------------------------------------------
(2) Net change should compare the latest year to the underwriting year.
- --------------------------------------------------------------------------------------------------------------------------------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ---------- ---------
</TABLE>
<PAGE>
TABLE (CONTINUED)
<TABLE>
<CAPTION>
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
S4 P56 P72 P73 P66 P68 P70 (2)
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Trailing Financial or YTD Net Change
- ------------- ---------- -------------------------------------------------------- --------------------- ---------
Information
- ------------- ---------- --------------------- ---------- --------- ---------- --------- ---------- ---------
Normalized Months Reported Actual Preceding & Basis
- ------------- ---------- ---------- --------------------- --------------------- --------------------------------
%
Prospectus (1) FS Start FS End Total $ % % Total (1)
Id DSCR Date Date Revenue NOI DSC Occ Revenue DSRCR
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
yy/mm yy/mm
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------------------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
Total: WA WA $ $ WA WA $ WA
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
Financial
Information
- ------------------------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------------------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------------------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------------------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------------------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
- ------------- ---------- ---------- --------- ---------- --------- ---------- --------- ---------- ---------
(1) DSCR should match to Operating Statement and is normally calculated using
NOI/Debt Service.
- ---------------------------------------------------------------------------------------------------------------------
(2) Net change should compare the latest year to the underwriting year.
- ---------------------------------------------------------------------------------------------------------------------
- ------------- --------- --------- ----------- --------- ---------- --------- ---------- --------- ----------
</TABLE>
<PAGE>
CSSA
Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
HISTORICAL LOAN MODIFICATION REPORT
as of ___________________
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
S4 S57 S58 P49 P48 P7* P7* P50* P50* P25* P25* P11*
- --------------------------------------------------------------------------------------------------------------------------------
Balance
Mod/ When Balance at the
Extension Sent To Effective Date # Mths
Prospectus Effect Special of Old for Rate New New Old
ID City State Flag Date Servicer Rehabilitation Rate Change Rate Old P&I P&I Maturity
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- ---------------------------------------------------------------------------
S4 P11* P47
- ---------------------------------------------------------------------------
(2) Est.
Future
Total # Interest
Mths (1) Loss to
for Realized Trust $
Prospectus New Change Loss to (Rate
ID Maturity of Mod Trust $ Reduction) COMMENT
- ---------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
THIS REPORT IS HISTORICAL
- --------------------------------------------------------------------------------
Information is as of modification. Each line should not change in the future.
Only new modifications should be added.
Total For All Loans:
Total For Loans in Current Month:
# of Loans $ Balance
Modifications:
Maturity Date Extensions:
Total:
* The information in these columns is from a particular point in time and
should not change on this report once assigned.
(1) Actual principal loss taken by bonds.
(2) Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
<PAGE>
CSSA
Commercial Mortgage Pass-Through Certificates, Series 1999-CAM1
HISTORICAL LOSS ESTIMATE REPORT (REO-SOLD or DISCOUNTED PAYOFF)
as of ___________________
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 P45/P7 P75 P45 P7
- ----------------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b) (d) (e)
- ----------------------------------------------------------------------------------------------------------------------------------
% Latest
Short Name Received Appraisal Effect Net AmT.
Prospectus (When Property From or Brokers Date of Sales Received Scheduled
ID Appropriate Type City State Sale Opinion Sale Price from Sale Balance
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
S4 P37 P39+P38
- ----------------------------------------------------------------------------------------------------------------------------------
(f) (g) (h) (i)=d(f+g+h) (k)=(i-o) (m) Date (n)=k+m (o)=__
- ----------------------------------------------------------------------------------------------------------------------------------
Actual Date Minor
Servicing Losses Loss Adj Total Loss Loss % of
Prospectus Total P&I Total Fees Net Passed Passed Minor Adj Passed with Scheduled
ID Advanced Expenses Expense Proceeds Thru thru to Trust thru Adjustment Balance
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
Total all Loans:
Current Month Only:
<PAGE>
EXHIBIT P
RESERVED
<PAGE>
EXHIBIT Q
FORM OF MORTGAGE LOAN INFORMATION
Substantially Similar to the Information
Repeated in Appendix II to the
Prospectus Supplement
<PAGE>
EXHIBIT R-1
REPRESENTATIONS AND WARRANTIES OF GENERAL AMERICAN
IN RESPECT OF GENERAL AMERICAN LOANS
(Representations and Warranties with respect to the Mortgage Loans)
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of the
date of this Agreement and as of the Cut-off Date.
2. Underwriting Policies. Each Mortgage Loan was either originated by
the Seller or an affiliate thereof or was acquired by the Seller, and each such
origination or acquisition, as applicable, of a Mortgage Loan complied with the
Sellers underwriting policies in effect as of such Mortgage Loans Origination
Date.
3. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. 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 of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
4. Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-off Date.
5. Lien; Valid Assignment. Subject to the exceptions set forth in
paragraph 14 below, the Mortgage related to and delivered in connection with
each Mortgage Loan constitutes a valid and enforceable first priority lien upon
the related Mortgaged Property, which includes all buildings located thereon and
all fixtures thereto, prior to all other liens and encumbrances, except for (a)
the lien for current real estate taxes and assessments not yet delinquent or
accruing interest or penalties, (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, (c) exceptions and
exclusions specifically referred to in such lender's title insurance policy, (d)
purchase money security interests and other matters described in the fourth
sentence of this paragraph and (e) other matters to which like properties are
commonly subject, none of which matters referred to in clauses (b), (c), (d) or
(e) individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the marketability or current use of
the Mortgaged Property or the current ability of the related Borrower to make
timely payments due on the Mortgage Loan debt (the foregoing items (a) through
(e) being herein referred to as the "Permitted Encumbrances"). The related
assignment of such Mortgage executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Mortgage. Subject to the exceptions set
forth in paragraph 14 below, such Mortgage, together with any separate security
agreements, chattel mortgages or equivalent instruments, establishes and creates
a valid and enforceable security interest in favor of the holder thereof in all
of the related Mortgagor's personal property described therein and reasonably
necessary to operate the related Mortgaged Property. A Uniform Commercial Code
financing statement has been filed and/or recorded in all places necessary to
perfect a valid security interest in such personal property, and such security
interest is a first priority security interest, subject to any prior purchase
money security interest in such personal property and any personal property
leases applicable to such personal property. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in rents or
other personal property to the extent that possession or control of such items
or actions other than the filing of Uniform Commercial Code financing statements
are required in order to effect such perfection.
6. Assignment of Leases and Rents. Subject to the exceptions set forth
in paragraph 14 below, the Assignment of Leases set forth in the Mortgage (or in
a separate instrument) and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable first
priority lien and first priority security interest in the related Mortgagor's
interest in all leases, sub-leases, licenses or other agreements pursuant to
which any person is entitled to occupy, use or possess all or any portion of the
real property subject to the related Mortgage, and each assignor thereunder has
the full right to assign the same. The related assignment of any Assignment of
Leases, not included in a Mortgage, executed and delivered in favor of the
Trustee is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Assignment of Leases.
7. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole and the related
Mortgaged Property has not been released from the lien of such Mortgage, in
whole or in part, nor has any instrument been executed that would effect any
such satisfaction, cancellation, subordination, rescission or release, except
for any partial reconveyances of real property that do not materially adversely
affect the value of the Mortgaged Property and which are included in the related
Mortgage File. None of the terms of any Mortgage Note, Mortgage or Assignment of
Leases has been impaired, waived, altered or modified in any respect, except by
written instruments, all of which are included in the related Mortgage File.
8. Condition of Property; Condemnation. (a) An engineering report (an
"Engineering Report") was conducted by a reputable engineer or consultant in
connection with the origination of each Mortgage Loan listed on Schedule A
hereto (the "Schedule A Loans") on or after January 1, 1998. With respect to
each Schedule A Loan and its related Mortgaged Property, other than as disclosed
in the related Engineering Report therefor, to Seller's knowledge such Mortgaged
Property is free and clear of any damage that would materially and adversely
affect its value as security for the related Mortgage Loan. With respect to any
condition disclosed in an Engineering Report that would materially and adversely
affect the value of the related Mortgaged Property if not remedied, such
condition has either been remedied to Seller's satisfaction or funds as deemed
necessary by the Seller or the related engineer or consultant have been placed
in escrow to remedy such condition to Seller's satisfaction.
(b) With respect to each Mortgage Loan other than the Schedule A Loans,
and its related Mortgaged Property and other than as listed on Schedule B hereto
(the "Schedule B Loans"), such Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for the related Mortgage Loan. With respect to each condition
listed on Schedule B that would materially and adversely affect the value of the
related Mortgaged Property if not remedied, such condition has either been
remedied to Seller's satisfaction or funds as deemed necessary by the Seller or
the related engineer or consultant have been placed in escrow to remedy such
condition to Seller's satisfaction.
(c) The Seller has received no notice of the commencement of any
proceeding for the condemnation of all or any material portion of any Mortgaged
Property. To the Seller's knowledge (based on surveys and/or title insurance
obtained in connection with the origination of the Mortgage Loans), as of the
date of the origination of each Mortgage Loan, all of the material improvements
on the related Mortgaged Property which were considered in determining the
appraised value of the 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, except those
encroachments that are insured against by the Title Policy referred to herein.
9. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form adopted in the applicable
jurisdiction) lender's title insurance policy (the "Title Policy") in the
original principal amount of the related Mortgage Loan after all advances of
principal. Each Title Policy insures that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances stated therein (or a pro forma or specimen policy, escrow letter or
a marked up title insurance commitment on which the required premium has been
paid exists which evidences that such Title Policy will be issued). Each 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 the Seller has
made no claims thereunder and no claims have been 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. To the Seller's knowledge, the insurer issuing such Title
Policy was, as of the date of origination of such Mortgage Loan, qualified to do
business in the jurisdiction in which the related Mortgaged Property is located.
10. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that 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.
11. Mortgage Loan Provisions. Subject to the exceptions set forth in
paragraph 14, the Mortgage Note and Mortgage for each Mortgage Loan, together
with applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties 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, including realization by judicial or, if applicable,
non-judicial foreclosure. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the Mortgaged Property or any material portion thereof, is
transferred, sold or encumbered, excepting, however, those Mortgage Loans
allowing junior liens (as listed on Schedule F hereto (the "Schedule F Loans"));
or allowing an assumption by a third party upon the satisfaction of certain
conditions precedent and upon payment of a transfer fee, if any.
12. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
13. Environmental Conditions. (a) A Phase I environmental report (an
"Environmental Report") was conducted by a reputable environmental engineer or
consultant in connection with the origination of each Mortgage Loan listed on
Schedule C hereto (the "Schedule C Loans") on or after January 1, 1998. With
respect to each Schedule C Loan and its related Mortgaged Property, other than
as disclosed in the related Environmental Report therefor, to Seller's
knowledge, (X) no Hazardous Material is present on such Mortgaged Property such
that (1) the value of such Mortgaged Property is materially and adversely
affected, or (2) under applicable federal, state or local law (A) such Hazardous
Material could be required to be eliminated at a cost materially and adversely
affecting the value of the Mortgaged Property before such Mortgaged Property
could be altered, renovated, demolished or transferred or (B) the presence of
such Hazardous Material could (upon action by the appropriate governmental
authorities) subject the owner of such Mortgaged Property, or the holders of a
security interest therein, to liability for the cost of eliminating such
Hazardous Material or the hazard created thereby at a cost materially and
adversely affecting the value of the Mortgaged Property, and (Y) such Mortgaged
Property is in material compliance with all applicable federal, state and local
laws pertaining to Hazardous Material (the "Environmental Laws"). Neither Seller
nor, to Seller's knowledge, the related Mortgagor or any current tenant of all
or any of the Mortgaged Property has received any notice of any violation or
potential violation of any Environmental Law. With respect to any condition
disclosed in an Environmental Report that would materially and adversely affect
the value of the related Mortgaged Property if not remedied, such condition has
either been remedied to Seller's satisfaction or funds as deemed necessary by
the Seller or the related environmental engineer or consultant have been placed
in escrow to remedy such condition to Seller's satisfaction.
(b) With respect to each Mortgage Loan other than the Schedule C Loans,
and its related Mortgaged Property, other than as listed on Schedule D hereto,
(X) no Hazardous Material is present on such Mortgaged Property such that (1)
the value of such Mortgaged Property is materially and adversely affected, or
(2) under applicable federal, state or local law, (a) such Hazardous Material
could be required to be eliminated at a cost materially and adversely affecting
the value of the Mortgaged Property before such Mortgaged Property could be
altered, renovated, demolished or transferred or (b) the presence of such
Hazardous Material could (upon action by the appropriate governmental
authorities) subject the owner of such Mortgaged Property, or the holders of a
security interest therein, to liability for the cost of eliminating such
Hazardous Material or the hazard created thereby at a cost materially and
adversely affecting the value of the Mortgaged Property, and (Y) such Mortgaged
Property is in material compliance with all applicable Environmental Laws.
Neither Seller nor, to Seller's knowledge, the related Mortgagor or any current
tenant thereon, has received any notice of any violation or potential violation
of any Environmental Law. With respect to each condition listed on Schedule D
hereto that would materially and adversely affect the value of the related
Mortgaged Property if not remedied, such condition has either been remedied to
Seller's satisfaction or funds as deemed necessary by the Seller or the related
environmental engineer or consultant have been placed in escrow to remedy such
condition to Seller's satisfaction.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance or material as may be defined as a hazardous
or toxic substance by any federal, state or local environmental law, ordinance,
rule, regulation or order, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. ss.ss. 9601 et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. ss.ss. 1801, et seq.), the Resource Conservation and Recovery
Act, as amended (42 U.S.C. ss.ss. 6901 et seq.), the Federal Water Pollution
Control Act, as amended (33 U.S.C. ss.ss. 1251 et seq.), the Clean Air Act (42
U.S.C. ss.ss. 7401 et seq.), and any regulations promulgated pursuant thereto.
14. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures a Mortgage Loan and that was executed by or
on behalf of the related Mortgagor 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 enforcement may be limited by bankruptcy, insolvency, reorganization
or other similar federal or state 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 subject
to the foregoing exceptions, there is no valid defense, counterclaim or right of
offset or rescission available to the related Mortgagor with respect to such
Mortgage Note, Mortgage or other agreements.
15. Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage, to be insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of the principal balance of the
related Mortgage Loan and the replacement cost of the Mortgaged Property, with
no deduction for depreciation, and not less than the amount necessary to avoid
the operation of any co-insurance provisions with respect to the Mortgaged
Property; (b) a business interruption or rental loss insurance policy, in an
amount at least equal to six months of operations of the Mortgaged Property; (c)
a flood insurance policy (if any portion of buildings or other structures on the
Mortgaged Property are located in an area identified by the Federal Emergency
Management Agency as having special flood hazards); and (d) with respect to the
Mortgage Loans on Schedule G attached hereto, a comprehensive general liability
insurance policy in amounts as are generally required by the Seller, and in any
event not less than $1 million per occurrence. All premiums on such insurance
policies required to be paid as of the date hereof have been paid. Each such
insurance policy contains a standard mortgagee clause that names the mortgagee
as an additional insured and requires prior notice to the holder of the Mortgage
of termination or cancellation. The Seller has not received any such notice of
termination or cancellation (including any notice of nonpayment of premiums)
that has not been cured. Other than as set forth in paragraph 18(viii) hereof,
each Mortgage obligates the related Mortgagor to maintain all such insurance
and, upon such Mortgagor's failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at the Mortgagor's cost and expense and to
seek reimbursement therefor from such Mortgagor. With the exception of the
Mortgage Loans listed on Schedule H hereto, each Mortgage provides that casualty
insurance proceeds will be applied either to the restoration or repair of the
related Mortgaged Property or to the reduction of the principal amount of the
Mortgage Loan with the Mortgagee or a trustee appointed by it having the right
to hold and disperse such proceeds as the repair or restoration progresses, if
the aggregate amount of such proceeds is above a customary specified threshold.
16. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property 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 and other charges shall not be considered
unpaid until the earlier of (a) the date on which interest and/or penalties
would be first payable thereon and (b) the date on which enforcement action is
entitled to be taken by the relating taxing authority.
17. Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
18. Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest"), or, where the Mortgage Loan is
secured by a Ground Lease and the Fee Interest in the Mortgaged Property, the
Fee Interest is subject and subordinate of record to the Mortgage and the
Mortgage does not by its terms provide that it will be subordinated to the lien
of any other mortgage or lien upon such Fee Interest, and upon the occurrence of
an event of default under the terms of the Mortgage, the mortgagee has the right
to foreclose or otherwise exercise its rights with respect to the fee interest
within a commercially reasonable time (subject to the exceptions set forth in
paragraph 14); and as to any Ground Lease:
(i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel
letter or lender protection agreement between the Seller and
related lessor) permits the current use of the Mortgaged
Property and 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 the
origination of the related Mortgage Loan, with the exception
of material changes reflected in written instruments that are
a part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns
upon notice to, but without the need to obtain the consent of,
such lessor;
(iv) All ground rents under such Ground Lease have been paid. Such
Ground Lease is in full force and effect and the Seller has
received no notice that an event of default has occurred
thereunder, and, to the Seller's knowledge, there exists no
condition that, but for the passage of time or the giving of
notice, or both, would result in an event of default under the
terms of such Ground Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement,
(A) requires the lessor under such Ground Lease to give notice
of any default by the lessee to the mortgagee; (B) except with
respect to the Mortgage Loans listed on Schedule I hereto,
provides that the ground lessor is required to enter into a
new ground lease on terms that do not materially differ from
the original ground lease upon termination of the Ground Lease
for any reason; and (C) provides that no modification of such
Ground Lease will be effective without the prior written
consent of such mortgagee;
(vi) 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;
(vii) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less
than ten years beyond the Stated Maturity Date of the related
Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation
award awarded to the mortgagee will be applied either (A) 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 with respect to
the Mortgage Loans listed on Schedule J hereto), or (B) to the
payment or defeasance of the outstanding principal balance of
the Mortgage Loan together with any accrued interest thereon;
and
(ix) With the exception of the Mortgage Loans listed on Schedule K
hereto, such Ground Lease does not impose any restrictions on
subletting.
19. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are required to be deposited or paid under the terms of the
related Mortgage Loan documents (inclusive of any applicable grace or cure
period) have been so deposited or paid by the related Mortgagor, and all such
deposits and payments have been applied in accordance with their intended
purposes or are being transferred to the Purchaser pursuant hereto.
20. Value to Loan Ratio. The gross proceeds of each Mortgage Loan to
the related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property having a fair market value (i) at the date the
Mortgage Loan was originated at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (ii) at the Closing Date at least
equal to 80 percent of the principal balance of the Mortgage Loan; provided that
for purposes hereof, the fair market value of the real property interest must
first be reduced by (x) the amount of any lien on the real property interest
that is senior to the Mortgage Loan and (y) a proportionate amount of any lien
that is in parity with the Mortgage Loan (unless such other lien secures a
Mortgage Loan that is cross-collateralized with such Mortgage Loan, in which
event the computation described in clauses (a)(i) and (a)(ii) of this paragraph
20 shall be made on a pro rata basis in accordance with the fair market values
of the Mortgaged Properties securing such cross-collateralized Mortgage Loans);
or (b) substantially all the proceeds of such Mortgage Loan were used to
acquire, improve or protect the real property which served as the only security
for such Mortgage Loan (other than a recourse feature or other third party
credit enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
21. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default or reasonably foreseeable default of such Mortgage Loan or (b)
satisfies the provisions of either clause (a)(i) of paragraph 20 (substituting
the date of the last such modification for the date the Mortgage Loan was
originated in making such determination) or clause (a)(ii) of paragraph 20,
including the proviso thereto.
22. Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the Mortgagor, directly or indirectly, for the
payment of any amount required by such Mortgage Loan.
23. No Mechanics' Liens. Each Mortgaged Property was, as of the date of
the origination of the related Mortgage Loan, and, to the Seller's knowledge, is
free and clear of any and all mechanics' and materialmen's liens that are prior
or equal to the lien of the related Mortgage, and 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 except, in each case, for liens insured against by
the Title Policy referred to herein.
24. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws (including applicable exemptions thereto) in effect at its
date of origination.
25. Cross-collateralization; Cross-default. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
26. 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 payment in full of all amounts due under the
related Mortgage Loan. The Mortgages relating to those Mortgage Loans identified
on Schedule E hereto require the mortgagee to grant releases of portions of the
related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements and (b) except where the portion of the Mortgaged
Property permitted to be released was not considered by the Seller to be
material in underwriting the Mortgage Loan, the payment of a release price set
forth therein and prepayment consideration in connection therewith. No Mortgage
Loan permits the release or substitution of collateral if such release or
substitution (a) would constitute a "significant modification" of such Mortgage
Loan within the meaning of Treas. Reg.ss.1.1001-3 (as of the Closing Date) or
(b) would cause such Mortgage Loan not to be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code (as of the Closing Date, but without
regard to clauses (A)(i) or (A)(ii) thereof).
27. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization or for any contingent or additional interest other than customary
payments or charges such as default interest, late charges and prepayment
premiums, which may be deemed interest under applicable state law.
28. 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 documents evidencing or securing the
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 address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any of paragraphs 4, 8, 13,
15, 16, 17 and 18 of this Exhibit 2.
29. Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be inspected
each Mortgaged Property in connection with the origination of the related
Mortgage Loan.
30. Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply as of the date of the origination of the related
Mortgage Loan 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, such value as determined by the appraisal performed
at origination.
31. Junior Liens. Schedule F attached hereto lists all the Mortgage
Loans that permit the related Mortgaged Property to be encumbered by any lien
junior to the lien of the related Mortgage and describes any related debt
service coverage or similar criteria needed to be satisfied to obtain such
junior lien. Except as otherwise set forth on Schedule F, the Seller has no
knowledge that any of the Mortgaged Properties is encumbered by any lien junior
to the lien of the related Mortgage.
32. Actions Concerning Mortgage Loans. The Seller has not received
notice of any action, suit or proceeding before any court, administrative agency
or arbitrator concerning any Mortgage Loan, Mortgagor or related Mortgaged
Property that might adversely affect title to the Mortgage Loan or the validity
or enforceability of the related Mortgage or that might materially and adversely
affect the value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended or that might adversely affect the
related Borrower's performance under the related Mortgage Loan Documents.
33. Servicing. The servicing and collection practices used by the
Seller or on Seller's behalf have been in all material respects legal, proper
and prudent and have met customary industry standards for servicing of
commercial and multifamily mortgage loans.
34. Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by any collateral (including any mortgage) that is not included in
the Trust.
36. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes the non-recourse
obligations of the Mortgagors thereon except that either (i) such provision does
not apply in the case of fraud by the Mortgagor or (ii) such documents provide
that the Mortgagor shall be liable to the holder of the Mortgage Loan for losses
incurred as a result of fraud by the Mortgagor.
37. Lender Not Required to Sell Mortgage Loan. The lender under the
Mortgage Loans will not be required to sell the Mortgage Loan at any time when
such Mortgage Loan is not in default or when a default is not reasonably
forseeable.
<PAGE>
EXHIBIT R-2
REPRESENTATIONS AND WARRANTIES OF RETIREMENT SYSTEM
IN RESPECT OF RETIREMENT SYSTEM LOANS
(Representations and Warranties with respect to the Mortgage Loans)
19. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of the
date of this Agreement and as of the Cut-off Date.
20. Underwriting Policies. Each Mortgage Loan was either originated by
the Seller or an affiliate thereof or was acquired by the Seller, and each such
origination or acquisition, as applicable, of a Mortgage Loan complied with the
Sellers underwriting policies in effect as of such Mortgage Loans Origination
Date.
21. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. 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 of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
22. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-off Date.
23. Lien; Valid Assignment. Subject to the exceptions set forth in
paragraph 14 below, the Mortgage related to and delivered in connection with
each Mortgage Loan constitutes a valid and enforceable first priority lien upon
the related Mortgaged Property, which includes all buildings located thereon and
all fixtures thereto, prior to all other liens and encumbrances, except for (a)
the lien for current real estate taxes and assessments not yet delinquent or
accruing interest or penalties, (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, (c) exceptions and
exclusions specifically referred to in such lender's title insurance policy, (d)
purchase money security interests and other matters described in the fourth
sentence of this paragraph and (e) other matters to which like properties are
commonly subject, none of which matters referred to in clauses (b), (c), (d) or
(e) individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the marketability or current use of
the Mortgaged Property or the current ability of the related Borrower to make
timely payments due on the Mortgage Loan debt (the foregoing items (a) through
(e) being herein referred to as the "Permitted Encumbrances"). The related
assignment of such Mortgage executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Mortgage. Subject to the exceptions set
forth in paragraph 14 below, such Mortgage, together with any separate security
agreements, chattel mortgages or equivalent instruments, establishes and creates
a valid and enforceable security interest in favor of the holder thereof in all
of the related Mortgagor's personal property described therein and reasonably
necessary to operate the related Mortgaged Property. A Uniform Commercial Code
financing statement has been filed and/or recorded in all places necessary to
perfect a valid security interest in such personal property, and such security
interest is a first priority security interest, subject to any prior purchase
money security interest in such personal property and any personal property
leases applicable to such personal property. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in rents or
other personal property to the extent that possession or control of such items
or actions other than the filing of Uniform Commercial Code financing statements
are required in order to effect such perfection.
24. Assignment of Leases and Rents. Subject to the exceptions set forth
in paragraph 14 below, the Assignment of Leases set forth in the Mortgage (or in
a separate instrument) and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable first
priority lien and first priority security interest in the related Mortgagor's
interest in all leases, sub-leases, licenses or other agreements pursuant to
which any person is entitled to occupy, use or possess all or any portion of the
real property subject to the related Mortgage, and each assignor thereunder has
the full right to assign the same. The related assignment of any Assignment of
Leases, not included in a Mortgage, executed and delivered in favor of the
Trustee is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Assignment of Leases.
25. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole and the related
Mortgaged Property has not been released from the lien of such Mortgage, in
whole or in part, nor has any instrument been executed that would effect any
such satisfaction, cancellation, subordination, rescission or release, except
for any partial reconveyances of real property that do not materially adversely
affect the value of the Mortgaged Property and which are included in the related
Mortgage File. None of the terms of any Mortgage Note, Mortgage or Assignment of
Leases has been impaired, waived, altered or modified in any respect, except by
written instruments, all of which are included in the related Mortgage File.
26. Condition of Property; Condemnation. (a) An engineering report (an
"Engineering Report") was conducted by a reputable engineer or consultant in
connection with the origination of each Mortgage Loan listed on Schedule A
hereto (the "Schedule A Loans") on or after January 1, 1998. With respect to
each Schedule A Loan and its related Mortgaged Property, other than as disclosed
in the related Engineering Report therefor, to Seller's knowledge such Mortgaged
Property is free and clear of any damage that would materially and adversely
affect its value as security for the related Mortgage Loan. With respect to any
condition disclosed in an Engineering Report that would materially and adversely
affect the value of the related Mortgaged Property if not remedied, such
condition has either been remedied to Seller's satisfaction or funds as deemed
necessary by the Seller or the related engineer or consultant have been placed
in escrow to remedy such condition to Seller's satisfaction.
(b) With respect to each Mortgage Loan other than the Schedule A Loans,
and its related Mortgaged Property and other than as listed on Schedule B hereto
(the "Schedule B Loans"), such Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for the related Mortgage Loan. With respect to each condition
listed on Schedule B that would materially and adversely affect the value of the
related Mortgaged Property if not remedied, such condition has either been
remedied to Seller's satisfaction or funds as deemed necessary by the Seller or
the related engineer or consultant have been placed in escrow to remedy such
condition to Seller's satisfaction.
(c) The Seller has received no notice of the commencement of any
proceeding for the condemnation of all or any material portion of any Mortgaged
Property. To the Seller's knowledge (based on surveys and/or title insurance
obtained in connection with the origination of the Mortgage Loans), as of the
date of the origination of each Mortgage Loan, all of the material improvements
on the related Mortgaged Property which were considered in determining the
appraised value of the 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, except those
encroachments that are insured against by the Title Policy referred to herein.
27. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form adopted in the applicable
jurisdiction) lender's title insurance policy (the "Title Policy") in the
original principal amount of the related Mortgage Loan after all advances of
principal. Each Title Policy insures that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances stated therein (or a pro forma or specimen policy, escrow letter or
a marked up title insurance commitment on which the required premium has been
paid exists which evidences that such Title Policy will be issued). Each 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 the Seller has
made no claims thereunder and no claims have been 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. To the Seller's knowledge, the insurer issuing such Title
Policy was, as of the date of origination of such Mortgage Loan, qualified to do
business in the jurisdiction in which the related Mortgaged Property is located.
28. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that 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.
29. Mortgage Loan Provisions. Subject to the exceptions set forth in
paragraph 14, the Mortgage Note and Mortgage for each Mortgage Loan, together
with applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties 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, including realization by judicial or, if applicable,
non-judicial foreclosure. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the Mortgaged Property or any material portion thereof, is
transferred, sold or encumbered, excepting, however, those Mortgage Loans
allowing junior liens (as listed on Schedule F hereto (the "Schedule F Loans"));
or allowing an assumption by a third party upon the satisfaction of certain
conditions precedent and upon payment of a transfer fee, if any.
30. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
31. Environmental Conditions. (a) A Phase I environmental report (an
"Environmental Report") was conducted by a reputable environmental engineer or
consultant in connection with the origination of each Mortgage Loan listed on
Schedule C hereto (the "Schedule C Loans") on or after January 1, 1998. With
respect to each Schedule C Loan and its related Mortgaged Property, other than
as disclosed in the related Environmental Report therefor, to Seller's
knowledge, (X) no Hazardous Material is present on such Mortgaged Property such
that (1) the value of such Mortgaged Property is materially and adversely
affected, or (2) under applicable federal, state or local law (A) such Hazardous
Material could be required to be eliminated at a cost materially and adversely
affecting the value of the Mortgaged Property before such Mortgaged Property
could be altered, renovated, demolished or transferred or (B) the presence of
such Hazardous Material could (upon action by the appropriate governmental
authorities) subject the owner of such Mortgaged Property, or the holders of a
security interest therein, to liability for the cost of eliminating such
Hazardous Material or the hazard created thereby at a cost materially and
adversely affecting the value of the Mortgaged Property, and (Y) such Mortgaged
Property is in material compliance with all applicable federal, state and local
laws pertaining to Hazardous Material (the "Environmental Laws"). Neither Seller
nor, to Seller's knowledge, the related Mortgagor or any current tenant of all
or any of the Mortgaged Property has received any notice of any violation or
potential violation of any Environmental Law. With respect to any condition
disclosed in an Environmental Report that would materially and adversely affect
the value of the related Mortgaged Property if not remedied, such condition has
either been remedied to Seller's satisfaction or funds as deemed necessary by
the Seller or the related environmental engineer or consultant have been placed
in escrow to remedy such condition to Seller's satisfaction.
(b) With respect to each Mortgage Loan other than the Schedule C Loans,
and its related Mortgaged Property, other than as listed on Schedule D hereto,
(X) no Hazardous Material is present on such Mortgaged Property such that (1)
the value of such Mortgaged Property is materially and adversely affected, or
(2) under applicable federal, state or local law, (a) such Hazardous Material
could be required to be eliminated at a cost materially and adversely affecting
the value of the Mortgaged Property before such Mortgaged Property could be
altered, renovated, demolished or transferred or (b) the presence of such
Hazardous Material could (upon action by the appropriate governmental
authorities) subject the owner of such Mortgaged Property, or the holders of a
security interest therein, to liability for the cost of eliminating such
Hazardous Material or the hazard created thereby at a cost materially and
adversely affecting the value of the Mortgaged Property, and (Y) such Mortgaged
Property is in material compliance with all applicable Environmental Laws.
Neither Seller nor, to Seller's knowledge, the related Mortgagor or any current
tenant thereon, has received any notice of any violation or potential violation
of any Environmental Law. With respect to each condition listed on Schedule D
hereto that would materially and adversely affect the value of the related
Mortgaged Property if not remedied, such condition has either been remedied to
Seller's satisfaction or funds as deemed necessary by the Seller or the related
environmental engineer or consultant have been placed in escrow to remedy such
condition to Seller's satisfaction.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance or material as may be defined as a hazardous
or toxic substance by any federal, state or local environmental law, ordinance,
rule, regulation or order, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. ss.ss. 9601 et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. ss.ss. 1801, et seq.), the Resource Conservation and Recovery
Act, as amended (42 U.S.C. ss.ss. 6901 et seq.), the Federal Water Pollution
Control Act, as amended (33 U.S.C. ss.ss. 1251 et seq.), the Clean Air Act (42
U.S.C. ss.ss. 7401 et seq.), and any regulations promulgated pursuant thereto.
32. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures a Mortgage Loan and that was executed by or
on behalf of the related Mortgagor 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 enforcement may be limited by bankruptcy, insolvency, reorganization
or other similar federal or state 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 subject
to the foregoing exceptions, there is no valid defense, counterclaim or right of
offset or rescission available to the related Mortgagor with respect to such
Mortgage Note, Mortgage or other agreements.
33. Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage, to be insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of the principal balance of the
related Mortgage Loan and the replacement cost of the Mortgaged Property, with
no deduction for depreciation, and not less than the amount necessary to avoid
the operation of any co-insurance provisions with respect to the Mortgaged
Property; (b) a business interruption or rental loss insurance policy, in an
amount at least equal to six months of operations of the Mortgaged Property; (c)
a flood insurance policy (if any portion of buildings or other structures on the
Mortgaged Property are located in an area identified by the Federal Emergency
Management Agency as having special flood hazards); and (d) with respect to the
Mortgage Loans on Schedule G attached hereto, a comprehensive general liability
insurance policy in amounts as are generally required by the Seller, and in any
event not less than $1 million per occurrence. All premiums on such insurance
policies required to be paid as of the date hereof have been paid. Each such
insurance policy contains a standard mortgagee clause that names the mortgagee
as an additional insured and requires prior notice to the holder of the Mortgage
of termination or cancellation. The Seller has not received any such notice of
termination or cancellation (including any notice of nonpayment of premiums)
that has not been cured. Other than as set forth in paragraph 18(viii) hereof,
each Mortgage obligates the related Mortgagor to maintain all such insurance
and, upon such Mortgagor's failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at the Mortgagor's cost and expense and to
seek reimbursement therefor from such Mortgagor. With the exception of the
Mortgage Loans listed on Schedule H hereto, each Mortgage provides that casualty
insurance proceeds will be applied either to the restoration or repair of the
related Mortgaged Property or to the reduction of the principal amount of the
Mortgage Loan with the Mortgagee or a trustee appointed by it having the right
to hold and disperse such proceeds as the repair or restoration progresses, if
the aggregate amount of such proceeds is above a customary specified threshold.
34. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property 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 and other charges shall not be considered
unpaid until the earlier of (a) the date on which interest and/or penalties
would be first payable thereon and (b) the date on which enforcement action is
entitled to be taken by the relating taxing authority.
35. Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
36. Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest"), or, where the Mortgage Loan is
secured by a Ground Lease and the Fee Interest in the Mortgaged Property, the
Fee Interest is subject and subordinate of record to the Mortgage and the
Mortgage does not by its terms provide that it will be subordinated to the lien
of any other mortgage or lien upon such Fee Interest, and upon the occurrence of
an event of default under the terms of the Mortgage, the mortgagee has the right
to foreclose or otherwise exercise its rights with respect to the fee interest
within a commercially reasonable time (subject to the exceptions set forth in
paragraph 14); and as to any Ground Lease:
(i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel
letter or lender protection agreement between the Seller and
related lessor) permits the current use of the Mortgaged
Property and 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 the
origination of the related Mortgage Loan, with the exception
of material changes reflected in written instruments that are
a part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns
upon notice to, but without the need to obtain the consent of,
such lessor;
(iv) All ground rents under such Ground Lease have been paid. Such
Ground Lease is in full force and effect and the Seller has
received no notice that an event of default has occurred
thereunder, and, to the Seller's knowledge, there exists no
condition that, but for the passage of time or the giving of
notice, or both, would result in an event of default under the
terms of such Ground Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement,
(A) requires the lessor under such Ground Lease to give notice
of any default by the lessee to the mortgagee; (B) except with
respect to the Mortgage Loans listed on Schedule I hereto,
provides that the ground lessor is required to enter into a
new ground lease on terms that do not materially differ from
the original ground lease upon termination of the Ground Lease
for any reason; and (C) provides that no modification of such
Ground Lease will be effective without the prior written
consent of such mortgagee;
(vi) 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;
(vii) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less
than ten years beyond the Stated Maturity Date of the related
Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation
award awarded to the mortgagee will be applied either (A) 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 with respect to
the Mortgage Loans listed on Schedule J hereto), or (B) to the
payment or defeasance of the outstanding principal balance of
the Mortgage Loan together with any accrued interest thereon;
and
(ix) With the exception of the Mortgage Loans listed on Schedule K
hereto, such Ground Lease does not impose any restrictions on
subletting.
38. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are required to be deposited or paid under the terms of the
related Mortgage Loan documents (inclusive of any applicable grace or cure
period) have been so deposited or paid by the related Mortgagor, and all such
deposits and payments have been applied in accordance with their intended
purposes or are being transferred to the Purchaser pursuant hereto.
39. Value to Loan Ratio. The gross proceeds of each Mortgage Loan to
the related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property having a fair market value (i) at the date the
Mortgage Loan was originated at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (ii) at the Closing Date at least
equal to 80 percent of the principal balance of the Mortgage Loan; provided that
for purposes hereof, the fair market value of the real property interest must
first be reduced by (x) the amount of any lien on the real property interest
that is senior to the Mortgage Loan and (y) a proportionate amount of any lien
that is in parity with the Mortgage Loan (unless such other lien secures a
Mortgage Loan that is cross-collateralized with such Mortgage Loan, in which
event the computation described in clauses (a)(i) and (a)(ii) of this paragraph
20 shall be made on a pro rata basis in accordance with the fair market values
of the Mortgaged Properties securing such cross-collateralized Mortgage Loans);
or (b) substantially all the proceeds of such Mortgage Loan were used to
acquire, improve or protect the real property which served as the only security
for such Mortgage Loan (other than a recourse feature or other third party
credit enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
40. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default or reasonably foreseeable default of such Mortgage Loan or (b)
satisfies the provisions of either clause (a)(i) of paragraph 20 (substituting
the date of the last such modification for the date the Mortgage Loan was
originated in making such determination) or clause (a)(ii) of paragraph 20,
including the proviso thereto.
41. Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the Mortgagor, directly or indirectly, for the
payment of any amount required by such Mortgage Loan.
42. No Mechanics' Liens. Each Mortgaged Property was, as of the date of
the origination of the related Mortgage Loan, and, to the Seller's knowledge, is
free and clear of any and all mechanics' and materialmen's liens that are prior
or equal to the lien of the related Mortgage, and 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 except, in each case, for liens insured against by
the Title Policy referred to herein.
43. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws (including applicable exemptions thereto) in effect at its
date of origination.
44. Cross-collateralization; Cross-default. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
45. 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 payment in full of all amounts due under the
related Mortgage Loan. The Mortgages relating to those Mortgage Loans identified
on Schedule E hereto require the mortgagee to grant releases of portions of the
related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements and (b) except where the portion of the Mortgaged
Property permitted to be released was not considered by the Seller to be
material in underwriting the Mortgage Loan, the payment of a release price set
forth therein and prepayment consideration in connection therewith. No Mortgage
Loan permits the release or substitution of collateral if such release or
substitution (a) would constitute a "significant modification" of such Mortgage
Loan within the meaning of Treas. Reg.ss.1.1001-3 (as of the Closing Date) or
(b) would cause such Mortgage Loan not to be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code (as of the Closing Date, but without
regard to clauses (A)(i) or (A)(ii) thereof).
46. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization or for any contingent or additional interest other than customary
payments or charges such as default interest, late charges and prepayment
premiums, which may be deemed interest under applicable state law.
47. 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 documents evidencing or securing the
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 address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any of paragraphs 4, 8, 13,
15, 16, 17 and 18 of this Exhibit 2.
48. Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be inspected
each Mortgaged Property in connection with the origination of the related
Mortgage Loan.
49. Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply as of the date of the origination of the related
Mortgage Loan 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, such value as determined by the appraisal performed
at origination.
50. Junior Liens. Schedule F attached hereto lists all the Mortgage
Loans that permit the related Mortgaged Property to be encumbered by any lien
junior to the lien of the related Mortgage and describes any related debt
service coverage or similar criteria needed to be satisfied to obtain such
junior lien. Except as otherwise set forth on Schedule F, the Seller has no
knowledge that any of the Mortgaged Properties is encumbered by any lien junior
to the lien of the related Mortgage.
51. Actions Concerning Mortgage Loans. The Seller has not received
notice of any action, suit or proceeding before any court, administrative agency
or arbitrator concerning any Mortgage Loan, Mortgagor or related Mortgaged
Property that might adversely affect title to the Mortgage Loan or the validity
or enforceability of the related Mortgage or that might materially and adversely
affect the value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended or that might adversely affect the
related Borrower's performance under the related Mortgage Loan Documents.
52. Servicing. The servicing and collection practices used by the
Seller or on Seller's behalf have been in all material respects legal, proper
and prudent and have met customary industry standards for servicing of
commercial and multifamily mortgage loans.
53. Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
54. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by any collateral (including any mortgage) that is not included in
the Trust.
55. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes the non-recourse
obligations of the Mortgagors thereon except that either (i) such provision does
not apply in the case of fraud by the Mortgagor or (ii) such documents provide
that the Mortgagor shall be liable to the holder of the Mortgage Loan for losses
incurred as a result of fraud by the Mortgagor.
56. Lender Not Required to Sell Mortgage Loan. The lender under the
Mortgage Loans will not be required to sell the Mortgage Loan at any time when
such Mortgage Loan is not in default or when a default is not reasonably
forseeable.
<PAGE>
EXHIBIT S-1
FORM OF POWER OF ATTORNEY FOR MASTER SERVICER
RECORDING REQUESTED BY:
CONNING ASSET MANAGEMENT COMPANY
AND WHEN RECORDED MAIL TO:
CONNING ASSET MANAGEMENT COMPANY
700 Market Street
St. Louis, MO 63101
Attention: Commercial Mortgage Pass-
Through Series 1999-CAM1
Space above this line for Recorder's use
- ------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that THE CHASE MANHATTAN BANK, as
trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1 ("Trustee"), under that certain Pooling and
Servicing Agreement dated as of July 1, 1999 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint CONNING ASSET
MANAGEMENT COMPANY ("CAM"), as Master Servicer, under the Pooling and Servicing
Agreement as its true and lawful attorney-in-fact for it and in its name, place,
stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable CAM to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by CAM of
its duties as Master Servicer under the Pooling and Servicing Agreement, giving
and granting CAM full power and authority to do and perform any and every act
necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all CAM shall lawfully do or cause to be done
by virtue hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of July, 1999.
THE CHASE MANHATTAN BANK, as trustee for
Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series
1999-CAM1
By:__________________________________________
Name:________________________________________
Title:_______________________________________
<PAGE>
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On _______________ before me, ______________________________
Date Name and Title of Officer (i.e.,
Your Name, Notary Public)
personally appeared ____________________________________________________________
Name(s) of Document Signer(s)
________________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
_________________________________
Signature of Notary
(Affix seal in the above blank space)
<PAGE>
EXHIBIT S-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
CONNING ASSET MANAGEMENT COMPANY
AND WHEN RECORDED MAIL TO:
CONNING ASSET MANAGEMENT COMPANY
700 Market Street
St. Louis, MO 63101
Attention: Commercial Mortgage Pass-
Through Series 1999-CAM1
Space above this line for Recorder's use
- ------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that THE CHASE MANHATTAN BANK, as
trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-CAM1 ("Trustee"), under that certain Pooling and
Servicing Agreement dated as of July 1, 1999 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint CONNING ASSET
MANAGEMENT COMPANY ("CAM"), as Special Servicer, under the Pooling and Servicing
Agreement as its true and lawful attorney-in-fact for it and in its name, place,
stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable CAM to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by CAM of
its duties as Special Servicer under the Pooling and Servicing Agreement, giving
and granting CAM full power and authority to do and perform any and every act
necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all CAM shall lawfully do or cause to be done
by virtue hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of July, 1999.
THE CHASE MANHATTAN BANK, as trustee for
Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series
1999-CAM1
By:__________________________________________
Name:________________________________________
Title:_______________________________________
<PAGE>
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On _______________ before me, ______________________________
Date Name and Title of Officer (i.e.,
Your Name, Notary Public)
personally appeared ____________________________________________________________
Name(s) of Document Signer(s)
________________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
Signature of Notary
(Affix seal in the above blank space)
<PAGE>
EXHIBIT T
PROCEDURES FOR CALCULATING DEBT SERVICE COVERAGE RATIO
"Debt Service Coverage Ratios" generally means the ratio of "Underwritable
Cash Flow" estimated to be produced by the related Mortgaged Property to the
annualized amount of debt service payable under that Mortgage Loan.
"Underwritable Cash Flow" in each case is an estimate of stabilized cash flow
available for debt service. In general, it is the estimated stabilized revenue
derived from the use and operation of a Mortgaged Property (consisting primarily
of rental income) less the sum of (a) estimate stabilized operating expenses
(such as utilities, administrative expenses, repairs and maintenance, management
fees and advertising), (b) fixed expenses (such as insurance, real estate taxes
and, if applicable, ground lease payments) and (c) capital expenditures and
reserves for capital expenditures, including tenant improvement costs and
leasing commissions. Underwritable Cash Flow generally does not reflect interest
expenses and non-cash items such as depreciation and amortization. In
determining Underwritable Cash Flow for a Mortgaged Property, the Master
Servicer may rely on rent rolls and other generally unaudited financial
information provided by the respective borrowers and may estimate cash flow
taking into account historical financial statements, material changes in the
operating position of the Mortgaged Property, and estimated capital
expenditures, leasing commission and tenant improvement reserves. The Master
Servicer may make certain changes to operating statements and operating
information obtained from the respective borrowers.
<PAGE>
SCHEDULE I
GENERAL AMERICAN LOAN SCHEDULE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Original
Tab# Seller Property Name Street Address City State Balance
- ----- ------ --------------------------------- ------------------------------------- ------------- ----- -----------
<S> <C> <C> <C> <C> <C> <C>
1 GAL Century Park Office Building 1880 Century Park East Los Angeles CA 24,000,000
3 GAL Del Norte Plaza 302-360 El Norte Parkway Escondido CA 18,000,000
4 GAL Picture Tel Office Building 200 Minuteman Park Andover MA 18,000,000
5 GAL Club Hotel & Suites by Doubletree 455 Washington Boulevard Jersey City NJ 17,000,000
6 GAL Ram's Village Apartments 900-901 Constitution Avenue Fort Collins CO 16,000,000
9 GAL Downtown Woodinville Retail
Development #2 NWQ NE 175th Street and 138th Ave. NE Woodinville WA 13,050,000
10 GAL Mid Rivers Plaza Shopping Center 235-281 Mid Rivers Mall Drive St. Peters MO 13,150,000
11 GAL Pahrump Valley Junction Shopping Center 100-240 S. Highway 160 Pahrump NV 12,900,000
13 GAL Westlake Village Marketplace 5754-5790 Lindero Canyon Road Westlake Village CA 10,818,500
15 GAL Greylyn Business Park 9301 - 9317 Monroe Road Charlotte NC 10,000,000
16 GAL 1700 Pennsylvania Avenue, N.W. 1700 Pennsylvania Avenue, N.W. Washington DC 11,000,000
18 GAL Fairview Center 6601 North Illinois Street Fairview Heights IL $9,000,000
20 GAL Fort Collier Industrial Park 265 West Brooke Road Winchester VA $9,177,717
21 GAL Battelle Environmental Technology Bldg. 3200 Q Avenue Richland WA $8,900,000
24 GAL Drury Inn - Union Station 201 South 20TH Street St. Louis MO $9,500,000
25 GAL Marketplace of Augusta - Phase 2 N/S Townsend Road at Civic Center Drive Augusta ME $8,650,000
26 GAL Sonora Quest Laboratories 1255 West Washington Street Tempe AZ $8,250,000
27 GAL Winder Corners Shopping Center Intersection of GA HWYS 8 & 11 Winder GA $8,500,000
28 GAL Battelle Energy & Environmental 3230 Q Avenue Richland WA $8,100,000
Sciences Bldg.
29 GAL Encino Spectrum 15503 Ventura Boulevard Encino CA $8,250,000
31 GAL Townview Square Shopping Center SEC US Highway 301 & Pretty Pond Road Zephyrhills FL $8,283,460
34 GAL Seven Corners Corporate Center 6245 Leesburg Pike Falls Church VA $7,500,000
35 GAL The Mark Office Building 9290 West Dodge Street Omaha NE $7,425,000
38 GAL Fair Oaks Medical Plaza 3700 Joseph Siewick Drive Fairfax VA $7,500,000
39 GAL First Data Office Building 2975 Breckenridge Norcross GA $7,087,500
40 GAL 1301 Connecticut Avenue, N.W. 1301 Connecticut Avenue N.W. Washington DC $7,500,000
41 GAL Downtown Woodinville Retail
Development #1 NEQ NE 175th Street and 138th Avenue NE Woodinville WA $6,900,000
42 GAL Melbourne Square Promenade 1900 Evans Road Melbourne FL $7,500,000
43 GAL Glen Place Shopping Center 110 Altama Avenue Brunswick GA $6,927,483
45 GAL Ocean Terrace Apartments 1630 Merrill Street Santa Cruz CA $6,570,000
46 GAL Pheasant Run Apartments 2101 North Evergreen Street Chandler AZ $7,000,000
47 GAL Liberty Crossing 8508-8514 Liberty Road Randallstown MD $6,500,000
49 GAL Danbury Commons Shopping Center 13 Sugar Hollow Road Danbury CT $6,750,000
50 GAL Dairy Ashford Plaza Office Building 2000 & 2020 Dairy Ashford Drive Houston TX $6,400,000
51 GAL Mt. Vernon Center 2480-2520 Mt. Vernon Road Dunwoody GA $6,187,500
52 GAL Norwalk Plaza 11752-94 Firestone Blvd. Norwalk CA $3,600,000
53 GAL Magnolia Plaza 9035-9126 Garfield Ave and 18926
Magnolia Ave Fountain Valley CA $3,200,000
54 GAL Atrium Circle At Campus Circle 5800 Campus Circle Drive Irving TX $6,000,000
55 GAL Fair Oaks Professional Building 3650 Joseph Siewick Drive Fairfax VA $5,800,000
56 GAL Orthologics Building 1275 West Washington Street Tempe AZ $5,800,000
57 GAL General Instruments Building 1725 Lakepointe Drive Lewisville TX $5,625,000
58 GAL Home Depot 100 W. Dundee Road Cicero IL $6,025,000
60 GAL Mountain View Professional Plaza 2851 North Tenaya Way Las Vegas NV $5,500,000
61 GAL Ventana Village Shopping Center SWC Of Sunrise Drive & Kolb Road Tucson AZ $5,681,000
62 GAL MA Bioservices 14920 Broschart Road Rockville MD $5,200,000
63 GAL 65 K Street 65 K Street, N.E. Washington DC $6,000,000
65 GAL 14600 Winchester Blvd. 14600 Winchester Boulevard Los Gatos CA $5,000,000
66 GAL Best Buy 12495 Kendall Drive Miami FL $5,200,000
67 GAL Village Grove Shopping Center 1401-1495 E. Foothill Boulevard Upland CA $5,000,000
68 GAL 6006 Executive Boulevard 6006 Executive Boulevard Rockville MD $5,450,000
70 GAL 4215 Glencoe 4215 Glencoe Avenue Marina Del Rey CA $4,600,000
71 GAL Snowcreek Crossing NEC Park Avenue & Kearns Boulevard Park City UT $4,850,000
72 GAL Lighthouse Crossing Shopping Center NEC Tyrone Boulevard & Park Street ST. Petersburg FL $4,500,000
73 GAL Best Buy 12397 West Sunrise Boulevard Plantation FL $4,575,000
74 GAL Creekside Office Park 1510-1560 140th Avenue NE Bellevue WA $4,400,000
75 GAL Lithonia Lighting West Building 18401 East Arenth Avenue City of Industry CA $4,500,000
76 GAL 5353-5499 Downey Road 5353 - 5499 Downey Road Vernon CA $4,500,000
77 GAL Townley Apartments Cherry Hill Road (11427-63) Beltsville MD $4,600,000
78 GAL Walgreens and Staples 3402 North Central Avenue & 106 West
Osborn Street Phoenix AZ $4,550,000
79 GAL Prince Frederick Office Park 201 Prince Frederick Drive Winchester VA $5,300,000
80 GAL Bay Tree Village 1741 Gornto Road Valdosta GA $3,600,000
81 GAL Bugaboo Steak House 3505 Satellite Boulevard Duluth GA $800,000
82 GAL Cotswold Plaza II 309 South Sharon Amity Road Charlotte NC $4,125,000
83 GAL Lake Regency Building 444 Regency Parkway Drive Omaha NE $4,000,000
84 GAL Merit Abrasiveproducts Inc. 201 West Manville Los Angeles CA $4,100,000
85 GAL Totem Ridge Business Park 13609-13637 N. E. 126TH Place Kirkland WA $4,300,000
87 GAL Stafford Corporate Center 7930 SW Burns Way Wilsonville OR $3,700,000
88 GAL Best Buy 39330 10TH ST. West Palmdale CA $4,000,000
89 GAL R and R Plaza 8064-8084 West Sahara Las Vegas NV $4,300,000
90 GAL Best Buy 888 Harriman Place San Bernardino CA $4,000,000
91 GAL Circuit City - Colorado Springs SEC Academy Boulevard& Platte Avenue Colorado Springs CO $3,700,000
92 GAL 204TH Street Partners 6412,6414, & 6416 204TH ST SW Lynnwood WA $3,675,000
93 GAL Commons 1 Office Building 720 Goodlette Road North Naples FL $3,461,250
94 GAL Quail Business Park 5301 Longley Lane Reno NV $3,500,000
95 GAL Hayden Island Business Park 2408-2725 North Hayden Island Drive Portland OR $3,400,000
96 GAL NW Corner of Hwy 74 & Mail Street NW Corner of Hwy 74 & Mail Street Rockingham NC $3,325,000
97 GAL Sportmart Plaza SEC Army Trail Rd and Wall St. Glendale Heights IL $3,700,000
98 GAL Spectrum Business Park V 101 N. Pecos & 3300-3340 Sunrise Las Vegas NV $3,400,000
99 GAL Northwest Business Center III 2220 And 2225 Northwest Parkway Marietta GA $3,297,233
100 GAL Mizner Place 490 East Palmetto Park Road Boca Raton FL $3,350,000
101 GAL Kroger 3508 High Point Road Greensboro NC $3,325,000
102 GAL Food 4 Less N.W. Corner Devonshire Avenue & Fisher
Road Salem OR $3,600,000
103 GAL Oxford Hill Apartments 704-772 Madison Ave and 1017-1033
Preston Ave Charlottesville VA $3,250,000
104 GAL Linens N' Things 5880 West 88TH Avenue Westminister CO $3,250,000
105 GAL Parklane Centre 7499 Parklane Road Columbia SC $3,050,000
106 GAL Goldseker Industrial Portfolio 211 Emmorton Park Road, 2113 Columbia
Park Road, & 201 Gateway Drive Bel Air MD $3,000,000
108 GAL Cahners Publishing Company 8878 Barrons Boulevard Higlands Ranch CO $3,350,000
109 GAL Walden Woods Village Shopping Center 2410 James Redman Parkway Plant City FL $3,000,000
110 GAL Grand Terrace Shopping Center 22409-22499 Barton Road Grand Terrace CA $2,811,330
111 GAL 2199 Innerbelt Business Center Drive 2199 Innerbelt Business Center Drive Overland MO $3,000,000
112 GAL Kohl's 3711 Gateway Drive Eau Claire WI $3,120,000
113 GAL Office Max 300 North York Road Upper Moreland
Township PA $3,000,000
114 GAL Meadows Pavillion II 6240 Shiloh Road Alpharetta GA $2,700,000
115 GAL Bernardo Gateway Business Park 10845, 10865, 10875 Ranch Bernardo Road San Diego CA $2,800,000
116 GAL 1371 & 1375 N. Miller Street 1371 & 1375 N. Miller Street Anaheim CA $2,800,000
117 GAL Blakely Corners Shopping Center Columbia St and South Church St Blakely GA $2,700,000
118 GAL Sparks Medical Office Building 2385 East Prater Way Sparks NV $2,600,000
119 GAL North Canal Office Park 146 North Canal Street Seattle WA $2,800,000
120 GAL Federal Express 1600 63rd Street Emeryville CA $2,400,000
121 GAL Behr Processing Building 3400 W. Garry Avenue Santa Ana CA $2,552,764
122 GAL The Shoppes at Salisbury II NWC Of U.S. Route 50 & Tilghman Road Salisbury MD $2,500,000
123 GAL Walgreens 36 W. 16TH Street Holland MI $2,800,000
125 GAL Shop N' Kart Discount Grocery 2000 Queen Avenue Albany OR $2,334,000
126 GAL Office Max 3110 Browns Mill Road Johnson City TN $2,400,000
128 GAL Office Max 920 South University Avenue Provo UT $2,325,000
129 GAL DEA Building 5800 Newton Drive Carlsbad CA $2,330,000
130 GAL 56th Street Commerce Park 4302-4424 56th St, 5302-5556 56th
Commerce Park Blvd Tampa FL $2,400,000
131 GAL 4520 36th Street 4520 36th Street Orlando FL $2,100,000
132 GAL Pacific Park 18081, 18091 & 18101 Redondo Circle Huntington Beach CA $1,900,000
133 GAL Walgreens 1800 Concord Concord CA $1,860,000
134 GAL North Roseburg Plaza 1350 N.E. Stephens/Garden Valley/1289-97
Walnut Street Roseburg OR $2,200,000
135 GAL Probity International Corp 2900 Wilshire Blvd Santa Monica CA $2,200,000
136 GAL NOAA-National Weather Service Building NE 122nd Ave and NE Marx Street Portland OR $2,000,000
137 GAL Winchester Court 1925 South Winchester Blvd Campbell CA $1,800,000
138 GAL 2400 E. Francis 2400 E. Francis Ontario CA $1,898,500
139 GAL Walgreens 11079 South Military Trail Boynton Beach FL $1,750,000
140 GAL Walgreens NWC 25TH Street and 2ND Avenue Kearney NE $1,800,000
141 GAL The Shoppes at Salisbury The N/W/C OF U.S. RT. 50 & Tilghman Road Salisbury MD $2,150,000
142 GAL Ames Department Store NEC Maryland Route 27 & Twin Arch Road MT. Airy MD $2,000,000
143 GAL Eckerd Drug Store SEC of SR 19 & County Rd 44 Eustis FL $1,500,000
144 GAL Pier I Office Building West 111 North River Drive Spokane WA $1,700,000
145 GAL Harstad/Coates Industrial Park 250 Dittmer Road Fairfield CA $1,400,000
146 GAL Blockbuster Video 3329 E. Express Court Appleton WI $1,200,000
147 GAL Walgreens 8615 North Port Washington Rd Fox Point WI $1,325,000
148 GAL Walgreens 4001 Madison Avenue Indianapolis IN $1,300,000
149 GAL 15690 North 83rd Way 15690 North 83RD Way Scottsdale AZ $1,000,000
150 GAL Walgreens 3003 Kessler Boulevard Indianapolis IN $1,140,000
151 GAL The McCormick Executive Center Office 8070 East Morgan Trail Scottsdale AZ $1,000,000
Building
152 GAL Blockbuster Video 6029 W. 10th St and 4903 Emerson Ave Indianapolis IN $1,100,000
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Tab# Seller Property Name Borrower Name
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 GAL Century Park Office Building Century Park
3 GAL Del Norte Plaza Del Norte Plaza, LLC
4 GAL Picture Tel Office Building 200 Minuteman L.P.
5 GAL Club Hotel & Suites by Doubletree Hudson Hospitality Services Urban Renewal Associates, LLC And JC
Grandview Hotel, LLC
6 GAL Ram's Village Apartments Gray, Ronald D. And Claudine V.
9 GAL Downtown Woodinville Retail Development #2 Downtown Woodinville LLC
10 GAL Mid Rivers Plaza Shopping Center The Grewe Limited Partnership
11 GAL Pahrump Valley Junction Shopping Center Drummer Boy Holdings LLC
13 GAL Westlake Village Marketplace Westlake Village Marketplace, LLC
15 GAL Greylyn Business Park 9301 Monroe LLC
16 GAL 1700 Pennsylvania Avenue, N.W. Mills Building Associates
18 GAL Fairview Center Pace 64 Associates LLC
20 GAL Fort Collier Industrial Park Fort Collier Group LC
21 GAL Battelle Environmental Technology Bldg. Sigma Financial Group IX LP
24 GAL Drury Inn - Union Station Druco, Inc..
25 GAL Marketplace of Augusta - Phase 2 Townsend Road Associates LP
26 GAL Sonora Quest Laboratories Chamberlain Development LLC
27 GAL Winder Corners Shopping Center Winder Corners Associates, LP
28 GAL Battelle Energy & Environmental Sciences Sigma Financial Group VIII LP
Bldg.
29 GAL Encino Spectrum Encino Spectrum LLC
31 GAL Townview Square Shopping Center Concire Inc.
34 GAL Seven Corners Corporate Center 6245 Leesburg Pike LLC
35 GAL The Mark Office Building Vann Properties General Part.
38 GAL Fair Oaks Medical Plaza Fair Oaks Medical Plaza, LP
39 GAL First Data Office Building C. S. Gwinnett LLC
40 GAL 1301 Connecticut Avenue, N.W. Washington Properties LP
41 GAL Downtown Woodinville Retail Development #1 Downtown Woodinville LLC
42 GAL Melbourne Square Promenade Patrick B. Roche, Katherine A. Roche; DDC I, LLC; PB Kids LLC; Anders I
LLC; PBR E.I. LLC.
43 GAL Glen Place Shopping Center Village at Glynn Place, LLC
45 GAL Ocean Terrace Apartments Sobrato Land Holdings
46 GAL Pheasant Run Apartments Farnam Realty Inc.
47 GAL Liberty Crossing Liberty Crossing Land LLP
49 GAL Danbury Commons Shopping Center Danbury Commons Associates LP
50 GAL Dairy Ashford Plaza Office Building Dap Plaza
51 GAL Mt. Vernon Center L. Judson Akin No. Two LLC
52 GAL Norwalk Plaza W & D Imperial #1
53 GAL Magnolia Plaza W & D Imperial #1
54 GAL Atrium Circle At Campus Circle Atrium Circle LTD
55 GAL Fair Oaks Professional Building Fair Oaks Professional Bldg. LP
56 GAL Orthologics Building Chamberlain Family Trust
57 GAL General Instruments Building Gl Water Ridge LP
58 GAL Home Depot Dimucci Development of Cicero
60 GAL Mountain View Professional Plaza Shelby Partners
61 GAL Ventana Village Shopping Center Fidelity National Title Agency, Inc.
62 GAL MA Bioservices Fp Rockledge LLC
63 GAL 65 K Street 65 K Street Associates Ltd.
65 GAL 14600 Winchester Blvd. C&W Joint Venture
66 GAL Best Buy 152 Madison Avenue Paramount Corp.
67 GAL Village Grove Shopping Center Ross Revocable Family Trust Et Al, David And Judith Hager, Tuvia And
Guilat Milsztein, Joseph Bodenstein
68 GAL 6006 Executive Boulevard Trizechahn 6006 Executive Blvd.
70 GAL 4215 Glencoe Glencoe Seven, LP
71 GAL Snowcreek Crossing Brentwood Equities, Inc.
72 GAL Lighthouse Crossing Shopping Center Park & Tyrone Associates Ltd
73 GAL Best Buy Stanley And Joyce Black, Rose May Kaplan And Bsb Plantation LP
74 GAL Creekside Office Park Creekside Associates
75 GAL Lithonia Lighting West Building Sultan Enterprizes, Randall Sultan, Bruce Sultan
76 GAL 5353-5499 Downey Road 5353 Downey Associates Ltd.
77 GAL Townley Apartments Townley Associates Joint Venture
78 GAL Walgreens and Staples S-B Properties No. 8 LP
79 GAL Prince Frederick Office Park Prince Frederick Group LC
80 GAL Bay Tree Village Bay Tree Village L.L.C.
81 GAL Bugaboo Steak House Hudgens, Mark R.
82 GAL Cotswold Plaza II 309 South Sharon Amity, LLC
83 GAL Lake Regency Building Gordman Properties
84 GAL Merit Abrasiveproducts Inc. Ys Leasing Limited
85 GAL Totem Ridge Business Park Buchan Bros. Investment Properties
87 GAL Stafford Corporate Center Star Properties Group II LLC & Par Five, LLC
88 GAL Best Buy Anson Station LP, Piney Grove Plaza LP, Foothills Market LP, Kingston
Pointe LP
89 GAL R and R Plaza R And R Plaza
90 GAL Best Buy Yates Family Trust Of 1978
91 GAL Circuit City - Colorado Springs Cc Springs LLC
92 GAL 204TH Street Partners 204Th Street Partners
93 GAL Commons 1 Office Building Richard J. Mooney
94 GAL Quail Business Park Quail Business Park Ltd.
95 GAL Hayden Island Business Park H.I.B.P. Associates
96 GAL NW Corner of Hwy 74 & Mail Street Richmond City, Inc.
97 GAL Sportmart Plaza Sportmart Plaza L. P.
98 GAL Spectrum Business Park V Lewis Properties Inc.
99 GAL Northwest Business Center III Weeks Realty L.P.
100 GAL Mizner Place Mizner Place LTD
101 GAL Kroger 3508 High Point Road Associates, LLC
102 GAL Food 4 Less Salem Associates
103 GAL Oxford Hill Apartments Oxford Hill Land Trust
104 GAL Linens N' Things Brendon Park Investors LP
105 GAL Parklane Centre Parklane Centre Associates
106 GAL Goldseker Industrial Portfolio 201 Gateway LLLP, 2111 Emmorton Road LLP, 2113 Columbia Park LLP
108 GAL Cahners Publishing Company Van Schaack Holdings Ltd.
109 GAL Walden Woods Village Shopping Center Walden Woods Village Ltd.
110 GAL Grand Terrace Shopping Center Viking Investment Properties
111 GAL 2199 Innerbelt Business Center Drive Clayco Real Estate LLC
112 GAL Kohl's Net 2 Limited Partnership
113 GAL Office Max Copo Willow Grove LTD Partnership
114 GAL Meadows Pavillion II The Commons Development II LLC
115 GAL Bernardo Gateway Business Park Bernardo Gateway Partners
116 GAL 1371 & 1375 N. Miller Street Toy City Properties
117 GAL Blakely Corners Shopping Center Marlec Inc.
118 GAL Sparks Medical Office Building Sparks Med. Off. Bldg. LLC
119 GAL North Canal Office Park Blume, Bruce M.
120 GAL Federal Express 1600 63rd Street LLC
121 GAL Behr Processing Building Carson Estate Company
122 GAL The Shoppes at Salisbury II BLS Salisbury, LLC
123 GAL Walgreens Trierweiler-Realty Co. Partner
125 GAL Shop N' Kart Discount Grocery Lyon Associates
126 GAL Office Max SJL Investment Company
128 GAL Office Max Provo Partners LLC
129 GAL DEA Building Deihl Trustee, Richard H. Deihl and Billie D. Deihl
130 GAL 56th Street Commerce Park Eastgroup Tampa, Inc. And Commerce Park Investors, Ltd.
131 GAL 4520 36th Street Lot 44/45 Partnership, 33Rd Street Industrial Park
132 GAL Pacific Park Pacific Park LLC
133 GAL Walgreens Clair Robison and Darleen Robison, Trustees of Robison Family Trust
134 GAL North Roseburg Plaza Joseph Felix Realty Co.
135 GAL Probity International Corp Probity International Corp.
136 GAL NOAA-National Weather Service Building Warren Limited Partnership II
137 GAL Winchester Court Nmsbpcsldhb
138 GAL 2400 E. Francis David and Judith Hager, Tuvia and Guilat Milsztein
139 GAL Walgreens Pbc Realty Associates
140 GAL Walgreens Village Investments, Ltd. II
141 GAL The Shoppes at Salisbury BLS Salisbury L.C.
142 GAL Ames Department Store DKR Family LTD Partnership
143 GAL Eckerd Drug Store Rosenberg, Edward
144 GAL Pier I Office Building Pacific Security Companies
145 GAL Harstad/Coates Industrial Park Ferro Plaza Properties
146 GAL Blockbuster Video Dial Realty-Appleton LLC
147 GAL Walgreens Mred III Inc.
148 GAL Walgreens J. Greg Allen And Brian C. Pahud
149 GAL 15690 North 83rd Way Airpark Holdings
150 GAL Walgreens 30Th And Kessler Partnership
151 GAL The McCormick Executive Center Office Airpark Holdings II LLC
Building
152 GAL Blockbuster Video Van Schaack Holdings LTD
</TABLE>
TABLE (CONTINUED)
- --------------------------------------------------------------------------------
Tab# Fee/Leasehold Note Date Maturity Date Orig. Term
- --------------------------------------------------------------------------------
1 Fee 02/23/1999 03/01/2009 120
3 Fee 05/11/1999 06/01/2009 120
4 Fee 12/22/1998 01/01/2017 216
5 Fee 01/14/1999 02/01/2009 120
6 Fee 01/27/1995 02/01/2015 240
9 Fee 06/10/1999 07/01/2009 120
10 Fee 08/27/1998 09/01/2013 180
11 Fee 12/23/1998 01/01/2009 120
13 Fee 12/29/1998 02/01/2014 180
15 Fee 07/24/1997 08/01/2007 120
16 Fee 12/30/1993 01/01/2014 240
18 Fee 07/02/1998 01/01/2009 126
20 Fee 11/23/1998 09/01/2007 105
21 Leasehold 08/09/1998 09/01/2013 180
24 Fee 02/25/1994 03/01/2004 120
25 Fee 06/27/1996 07/01/2006 120
26 Leasehold 10/20/1998 11/01/2008 120
27 Fee 10/30/1995 11/01/2017 264
28 Leasehold 08/09/1998 09/01/2013 180
29 Fee 02/12/1996 02/01/2011 180
31 Fee 06/12/1996 04/01/2006 120
34 Fee 01/11/1999 02/01/2005 72
35 Fee 03/15/1999 04/01/2009 120
38 Leasehold 12/19/1994 01/01/2005 120
39 Fee 01/15/1999 02/01/2009 120
40 Fee 10/24/1995 11/01/2010 180
41 Fee 06/10/1999 07/01/2009 120
42 Fee 12/27/1997 01/01/2005 120
43 Fee 11/07/1996 11/01/2005 107
45 Fee 02/02/1999 03/01/2009 120
46 Fee 05/01/1996 05/01/2011 180
47 Fee 05/12/1999 06/01/2009 120
49 Fee/Leasehold 12/21/1995 01/01/2006 120
50 Fee 09/23/1998 11/01/2008 120
51 Fee 06/12/1998 07/01/2018 240
52 Fee 05/14/1996 05/01/2011 180
53 Fee 05/14/1996 05/01/2011 180
54 Fee 04/09/1998 05/01/2008 120
55 Leasehold 08/03/1998 08/01/2018 240
56 Leasehold 06/29/1998 07/01/2008 120
57 Fee 01/13/1999 02/01/2009 120
58 Fee 04/29/1996 05/01/2016 240
60 Fee 04/14/1998 05/01/2018 240
61 Fee 08/20/1996 01/01/2015 221
62 Fee 10/23/1997 11/01/2008 120
63 Fee 05/09/1995 01/01/2005 115
65 Fee 02/08/1999 03/01/2009 120
66 Fee 10/31/1995 12/01/2010 180
67 Fee 09/15/1997 10/01/2007 120
68 Fee 04/26/1995 05/01/2005 120
70 Fee 04/29/1999 06/01/2009 120
71 Fee 07/16/1996 07/01/2006 120
72 Fee 04/16/1999 05/01/2009 120
73 Fee 11/03/1995 11/01/2015 240
74 Fee 05/12/1998 06/01/2008 120
75 Fee 10/20/1997 11/01/2012 180
76 Fee 04/24/1996 05/01/2016 240
77 Fee 08/12/1993 09/01/2003 120
78 Fee 03/27/1996 04/01/2016 240
79 Fee 09/29/1993 05/01/2009 179
80 Fee 10/20/1995 11/01/2005 120
81 Fee 10/20/1995 11/01/2005 120
82 Fee 02/25/1999 03/01/2009 120
83 Fee 03/11/1999 04/01/2009 120
84 Fee 10/20/1997 11/01/2007 120
85 Fee 05/12/1994 06/01/2014 240
87 Fee 05/10/1999 06/01/2009 120
88 Fee 02/28/1996 03/01/2016 240
89 Fee 05/08/1995 06/01/2010 180
90 Fee 09/18/1995 10/01/2015 240
91 Fee 12/15/1995 01/01/2016 240
92 Fee 07/06/1994 08/01/2004 120
93 Fee 04/28/1998 05/01/2008 120
94 Fee 07/01/1994 08/01/2004 120
95 Fee 11/11/1998 12/01/2008 120
96 Fee 05/24/1999 06/01/2009 120
97 Fee 07/06/1994 07/01/2014 240
98 Fee 04/27/1995 06/01/2005 120
99 Fee 06/24/1996 07/01/2006 96
100 Fee 05/19/1995 06/01/2005 120
101 Fee 11/13/1995 12/01/2015 240
102 Fee 10/01/1992 10/01/2012 240
103 Fee 12/28/1994 01/01/2005 120
104 Fee 01/05/1996 02/01/2011 180
105 Fee 05/29/1998 06/01/2008 120
106 Fee 05/06/1999 06/01/2009 120
108 Fee 07/01/1994 08/01/2014 240
109 Fee 07/26/1996 08/01/2006 120
110 Fee 12/01/1998 01/01/2009 120
111 Fee 12/27/1995 01/01/2009 156
112 Fee 06/22/1994 07/01/2014 240
113 Fee 10/18/1995 01/01/2015 230
114 Fee 10/14/1998 11/01/2008 120
115 Fee 08/06/1996 08/01/2006 120
116 Fee 05/20/1997 06/01/2015 216
117 Fee 08/06/1998 09/01/2018 240
118 Fee 01/25/1999 03/01/2009 120
119 Fee 04/01/1996 04/01/2011 180
120 Fee 03/30/1999 04/01/2009 120
121 Fee 02/01/1996 02/01/2006 120
122 Fee 07/24/1996 08/01/2016 240
123 Fee 11/18/1992 12/01/2011 228
125 Fee 01/22/1998 02/01/2018 240
126 Fee 12/27/1996 09/01/2015 225
128 Fee 03/24/1997 04/01/2017 240
129 Fee 01/14/1997 02/01/2017 240
130 Fee 07/21/1994 08/01/2004 120
131 Fee 12/30/1997 01/01/2008 120
132 Fee 10/20/1998 12/01/2008 120
133 Fee 02/23/1999 04/01/2014 180
134 Fee 01/11/1995 02/01/2010 180
135 Fee 07/05/1996 07/01/2008 144
136 Fee 06/30/1994 07/01/2012 216
137 Fee 09/30/1998 11/01/2008 120
138 Fee 02/22/1996 12/01/2005 120
139 Fee/Leasehold 06/16/1998 07/01/2017 228
140 Fee 07/18/1996 08/01/2016 240
141 Fee 08/12/1993 09/01/2008 180
142 Fee 03/16/1990 04/01/2010 240
143 Fee 10/02/1998 04/01/2017 221
144 Fee 09/26/1994 10/01/2009 180
145 Fee 01/21/1998 02/01/2013 180
146 Fee 01/26/1999 02/01/2009 120
147 Fee 02/17/1994 03/01/2014 240
148 Fee 03/08/1994 03/01/2014 240
149 Fee 05/06/1999 06/01/2014 180
150 Fee 11/24/1992 12/01/2012 240
151 Fee 07/08/1998 08/01/2013 180
152 Fee 11/01/1994 11/01/2009 180
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Monthly
Tab# Seller Property Name Rem. Term Orig. Amort. Rem. Amort. Rate Debt Service
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1 GAL Century Park Office Building 116 300 296 7.920% $183,965.79
3 GAL Del Norte Plaza 119 300 299 7.375% $131,558.34
4 GAL Picture Tel Office Building 210 216 210 7.400% $151,026.71
5 GAL Club Hotel & Suites by Doubletree 115 240 235 7.375% $135,654.43
6 GAL Ram's Village Apartments 187 240 187 9.750% $151,762.70
9 GAL Downtown Woodinville Retail
Development #2 120 300 300 7.000% $92,234.69
10 GAL Mid Rivers Plaza Shopping Center 170 240 230 7.000% $101,951.82
11 GAL Pahrump Valley Junction Shopping Center 114 300 294 7.250% $93,242.09
13 GAL Westlake Village Marketplace 175 300 295 7.375% $79,070.22
15 GAL Greylyn Business Park 97 252 229 7.750% $80,472.72
16 GAL 1700 Pennsylvania Avenue, N.W. 174 240 174 7.500% $88,615.26
18 GAL Fairview Center 114 300 288 7.125% $64,329.59
20 GAL Fort Collier Industrial Park 98 105 98 9.000% $126,605.43
21 GAL Battelle Environmental Technology Bldg. 170 180 170 7.125% $80,618.98
24 GAL Drury Inn - Union Station 56 240 176 8.500% $82,443.21
25 GAL Marketplace of Augusta - Phase 2 84 276 240 7.750% $67,240.62
26 GAL Sonora Quest Laboratories 112 240 232 7.000% $63,962.16
27 GAL Winder Corners Shopping Center 220 264 220 8.200% $69,615.26
28 GAL Battelle Energy & Environmental
Sciences Bldg. 170 180 170 7.125% $73,372.33
29 GAL Encino Spectrum 139 300 259 7.875% $70,302.32
31 GAL Townview Square Shopping Center 81 240 201 8.250% $70,580.51
34 GAL Seven Corners Corporate Center 67 300 295 7.125% $53,608.00
35 GAL The Mark Office Building 117 300 297 7.250% $53,668.41
38 GAL Fair Oaks Medical Plaza 66 300 246 8.875% $62,298.99
39 GAL First Data Office Building 115 300 295 7.250% $51,228.94
40 GAL 1301 Connecticut Avenue, N.W. 136 240 196 8.000% $62,733.01
41 GAL Downtown Woodinville Retail
Development #1 120 300 300 7.250% $49,873.68
42 GAL Melbourne Square Promenade 66 264 210 8.750% $64,104.31
43 GAL Glen Place Shopping Center 76 287 256 7.938% $53,958.58
45 GAL Ocean Terrace Apartments 116 300 296 7.000% $46,435.40
46 GAL Pheasant Run Apartments 142 240 202 8.000% $58,550.81
47 GAL Liberty Crossing 119 240 239 7.250% $51,374.44
49 GAL Danbury Commons Shopping Center 78 300 258 8.000% $52,097.60
50 GAL Dairy Ashford Plaza Office Building 112 300 292 7.310% $46,507.33
51 GAL Mt. Vernon Center 228 240 228 7.125% $48,436.98
52 GAL Norwalk Plaza 142 180 142 7.875% $34,144.20
53 GAL Magnolia Plaza 142 180 142 7.875% $30,350.40
54 GAL Atrium Circle At Campus Circle 106 300 286 7.150% $42,982.61
55 GAL Fair Oaks Professional Building 229 300 289 7.180% $41,661.59
56 GAL Orthologics Building 108 240 228 7.000% $44,967.34
57 GAL General Instruments Building 115 300 295 7.125% $40,206.00
58 GAL Home Depot 202 240 202 8.125% $50,865.24
60 GAL Mountain View Professional Plaza 226 240 226 7.500% $44,307.63
61 GAL Ventana Village Shopping Center 186 220 185 9.500% $53,170.64
62 GAL MA Bioservices 112 300 292 7.000% $36,752.52
63 GAL 65 K Street 66 175 126 9.840% $64,588.10
65 GAL 14600 Winchester Blvd. 116 240 236 7.250% $39,518.80
66 GAL Best Buy 137 300 257 8.125% $40,565.99
67 GAL Village Grove Shopping Center 99 264 243 8.000% $40,308.89
68 GAL 6006 Executive Boulevard 70 204 154 9.125% $52,674.53
70 GAL 4215 Glencoe 119 300 299 7.500% $33,993.60
71 GAL Snowcreek Crossing 84 300 264 7.750% $36,221.74
72 GAL Lighthouse Crossing Shopping Center 118 240 238 7.125% $35,226.90
73 GAL Best Buy 196 300 256 8.125% $35,690.27
74 GAL Creekside Office Park 107 240 227 7.125% $34,444.08
75 GAL Lithonia Lighting West Building 160 180 160 8.000% $43,004.35
76 GAL 5353-5499 Downey Road 202 264 226 7.750% $35,562.28
77 GAL Townley Apartments 50 284 214 8.500% $37,040.45
78 GAL Walgreens and Staples 201 240 201 7.750% $37,353.16
79 GAL Prince Frederick Office Park 118 180 119 8.625% $52,580.27
80 GAL Bay Tree Village 76 300 256 7.750% $27,191.84
81 GAL Bugaboo Steak House 76 300 256 7.750% $6,042.64
82 GAL Cotswold Plaza II 116 300 296 7.375% $30,148.79
83 GAL Lake Regency Building 117 300 297 7.250% $28,912.28
84 GAL Merit Abrasiveproducts Inc. 100 240 220 8.260% $34,960.44
85 GAL Totem Ridge Business Park 179 240 179 8.500% $37,316.40
87 GAL Stafford Corporate Center 119 300 299 7.250% $26,743.86
88 GAL Best Buy 200 240 200 7.750% $32,837.95
89 GAL R and R Plaza 131 180 131 9.750% $45,552.60
90 GAL Best Buy 195 240 195 8.125% $33,769.45
91 GAL Circuit City - Colorado Springs 198 240 198 9.125% $33,587.90
92 GAL 204TH Street Partners 61 300 241 8.875% $30,526.51
93 GAL Commons 1 Office Building 106 300 286 7.250% $25,018.16
94 GAL Quail Business Park 61 360 301 9.500% $29,429.88
95 GAL Hayden Island Business Park 113 300 293 7.000% $24,030.50
96 GAL NW Corner of Hwy 74 & Mail Street 119 300 299 7.375% $24,301.75
97 GAL Sportmart Plaza 180 240 180 8.750% $32,697.30
98 GAL Spectrum Business Park V 71 300 251 9.625% $30,001.66
99 GAL Northwest Business Center III 84 216 204 7.950% $28,749.92
100 GAL Mizner Place 71 240 191 9.100% $30,356.61
101 GAL Kroger 197 240 197 8.000% $27,811.64
102 GAL Food 4 Less 159 240 159 9.750% $34,146.61
103 GAL Oxford Hill Apartments 66 300 246 9.375% $28,113.26
104 GAL Linens N' Things 139 252 211 7.550% $25,748.68
105 GAL Parklane Centre 107 300 287 7.375% $22,291.83
106 GAL Goldseker Industrial Portfolio 119 300 299 7.375% $21,926.39
108 GAL Cahners Publishing Company 181 240 181 7.875% $27,760.70
109 GAL Walden Woods Village Shopping Center 85 240 205 7.875% $24,860.33
110 GAL Grand Terrace Shopping Center 114 300 294 7.500% $22,647.89
111 GAL 2199 Innerbelt Business Center Drive 114 240 198 8.000% $25,093.21
112 GAL Kohl's 180 240 180 8.000% $26,096.94
113 GAL Office Max 186 230 186 8.000% $25,540.05
114 GAL Meadows Pavillion II 112 360 352 7.250% $18,418.77
115 GAL Bernardo Gateway Business Park 85 264 229 8.500% $23,475.38
116 GAL 1371 & 1375 N. Miller Street 191 216 191 8.750% $25,784.94
117 GAL Blakely Corners Shopping Center 230 240 230 7.375% $21,545.12
118 GAL Sparks Medical Office Building 116 300 296 7.250% $18,792.98
119 GAL North Canal Office Park 141 180 141 7.750% $26,355.73
120 GAL Federal Express 117 300 297 7.125% $17,154.56
121 GAL Behr Processing Building 79 240 199 8.250% $21,751.23
122 GAL The Shoppes at Salisbury II 205 240 205 8.375% $21,498.20
123 GAL Walgreens 149 228 149 9.500% $26,567.52
125 GAL Shop N' Kart Discount Grocery 223 240 223 8.000% $19,522.52
126 GAL Office Max 194 225 194 8.150% $20,845.74
128 GAL Office Max 213 240 213 8.625% $20,361.21
129 GAL DEA Building 211 240 211 8.000% $19,489.06
130 GAL 56th Street Commerce Park 61 228 169 8.875% $21,815.70
131 GAL 4520 36th Street 102 240 222 7.625% $17,078.33
132 GAL Pacific Park 113 300 293 7.500% $14,040.84
133 GAL Walgreens 177 300 297 7.000% $13,146.10
134 GAL North Roseburg Plaza 127 180 127 9.500% $22,972.95
135 GAL Probity International Corp 108 144 108 8.125% $23,965.01
136 GAL NOAA-National Weather Service Building 156 216 156 7.875% $18,440.83
137 GAL Winchester Court 112 300 292 7.050% $12,779.50
138 GAL 2400 E. Francis 77 232 189 8.000% $16,103.71
139 GAL Walgreens 216 240 228 7.360% $13,948.46
140 GAL Walgreens 205 240 205 7.625% $14,638.57
141 GAL The Shoppes at Salisbury 110 180 110 8.500% $21,171.91
142 GAL Ames Department Store 129 240 129 9.875% $19,135.09
143 GAL Eckerd Drug Store 213 221 213 7.350% $12,405.00
144 GAL Pier I Office Building 123 180 123 9.250% $17,496.27
145 GAL Harstad/Coates Industrial Park 163 180 163 8.125% $13,480.36
146 GAL Blockbuster Video 115 240 235 7.250% $9,484.52
147 GAL Walgreens 176 240 176 8.625% $11,603.70
148 GAL Walgreens 176 240 176 8.250% $11,076.86
149 GAL 15690 North 83rd Way 179 180 179 7.450% $9,241.74
150 GAL Walgreens 161 240 161 9.625% $10,719.53
151 GAL The McCormick Executive Center Office
Building 169 180 169 7.250% $9,128.63
152 GAL Blockbuster Video 124 180 124 9.250% $11,321.12
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Adm. Cost
Tab# Seller Property Name Rate (bps) Seasoning(1) Lockout YM YM1 YM3 YM+0.5% YM+0.75%
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 GAL Century Park Office Building 17.00 4 60 60
3 GAL Del Norte Plaza 17.00 1 60 60
4 GAL Picture Tel Office Building 17.00 6 60 156
5 GAL Club Hotel & Suites by Doubletree 17.00 5 60 60
6 GAL Ram's Village Apartments 17.00 53 36 204
9 GAL Downtown Woodinville Retail Development #2 17.00 0 36 78
10 GAL Mid Rivers Plaza Shopping Center 17.00 10 60 120
11 GAL Pahrump Valley Junction Shopping Center 17.00 6 36 81
13 GAL Westlake Village Marketplace 17.00 5 60 120
15 GAL Greylyn Business Park 17.00 23 120
16 GAL 1700 Pennsylvania Avenue, N.W. 17.00 66 36 198
18 GAL Fairview Center 17.00 12 60 63
20 GAL Fort Collier Industrial Park 17.00 7 36 66
21 GAL Battelle Environmental Technology Bldg. 17.00 10 180
24 GAL Drury Inn - Union Station 17.00 64 36 78
25 GAL Marketplace of Augusta - Phase 2 17.00 36 36 81
26 GAL Sonora Quest Laboratories 17.00 8 120
27 GAL Winder Corners Shopping Center 17.00 44 36 225
28 GAL Battelle Energy & Environmental Sciences 17.00 10 180
Bldg.
29 GAL Encino Spectrum 17.00 41 36 144
31 GAL Townview Square Shopping Center 17.00 39 61 59
34 GAL Seven Corners Corporate Center 17.00 5 36 33
35 GAL The Mark Office Building 17.00 3 36 84
38 GAL Fair Oaks Medical Plaza 17.00 54 36 81
39 GAL First Data Office Building 17.00 5 36 81
40 GAL 1301 Connecticut Avenue, N.W. 17.00 44 36 144
41 GAL Downtown Woodinville Retail Development #1 17.00 0 36 78
42 GAL Melbourne Square Promenade 17.00 54 36 84
43 GAL Glen Place Shopping Center 17.00 31 23 24
45 GAL Ocean Terrace Apartments 17.00 4 60 60
46 GAL Pheasant Run Apartments 17.00 38 36 144
47 GAL Liberty Crossing 17.00 1 60 58
49 GAL Danbury Commons Shopping Center 17.00 42 36 84
50 GAL Dairy Ashford Plaza Office Building 17.00 8 36 81
51 GAL Mt. Vernon Center 17.00 12 60 180
52 GAL Norwalk Plaza 17.00 38 36 144
53 GAL Magnolia Plaza 17.00 38 36 144
54 GAL Atrium Circle At Campus Circle 17.00 14 36 81
55 GAL Fair Oaks Professional Building 17.00 11 60 177
56 GAL Orthologics Building 17.00 12 120
57 GAL General Instruments Building 17.00 5 36 81
58 GAL Home Depot 17.00 38 36 198
60 GAL Mountain View Professional Plaza 17.00 14 60 180
61 GAL Ventana Village Shopping Center 17.00 35 76
62 GAL MA Bioservices 17.00 8 60 60
63 GAL 65 K Street 17.00 49 36 79
65 GAL 14600 Winchester Blvd. 17.00 4 60 60
66 GAL Best Buy 17.00 43 36 138
67 GAL Village Grove Shopping Center 17.00 21 36 84
68 GAL 6006 Executive Boulevard 17.00 50 36 84
70 GAL 4215 Glencoe 17.00 1 60 60
71 GAL Snowcreek Crossing 17.00 36 12 108
72 GAL Lighthouse Crossing Shopping Center 17.00 2 60 60
73 GAL Best Buy 17.00 44 36 204
74 GAL Creekside Office Park 17.00 13 36 84
75 GAL Lithonia Lighting West Building 17.00 20 36 84
76 GAL 5353-5499 Downey Road 17.00 38 36 192
77 GAL Townley Apartments 17.00 70 36 84
78 GAL Walgreens and Staples 17.00 39 36 204
79 GAL Prince Frederick Office Park 17.00 61 36 143
80 GAL Bay Tree Village 17.00 44 36 24
81 GAL Bugaboo Steak House 17.00 44 36 24
82 GAL Cotswold Plaza II 17.00 4 60 60
83 GAL Lake Regency Building 17.00 3 60 57
84 GAL Merit Abrasiveproducts Inc. 17.00 20 60 60
85 GAL Totem Ridge Business Park 17.00 61 36 201
87 GAL Stafford Corporate Center 17.00 1 60 60
88 GAL Best Buy 17.00 40 36 204
89 GAL R and R Plaza 17.00 49 36 144
90 GAL Best Buy 17.00 45 36 204
91 GAL Circuit City - Colorado Springs 17.00 42 36 204
92 GAL 204TH Street Partners 17.00 59 36 84
93 GAL Commons 1 Office Building 17.00 14 60 60
94 GAL Quail Business Park 17.00 59 60 60
95 GAL Hayden Island Business Park 17.00 7 36 84
96 GAL NW Corner of Hwy 74 & Mail Street 17.00 1 36 84
97 GAL Sportmart Plaza 17.00 60 240
98 GAL Spectrum Business Park V 17.00 49 36 84
99 GAL Northwest Business Center III 17.00 12 12 81
100 GAL Mizner Place 17.00 49 36 84
101 GAL Kroger 17.00 43 36 201
102 GAL Food 4 Less 17.00 81 36 192
103 GAL Oxford Hill Apartments 17.00 54 36 81
104 GAL Linens N' Things 17.00 41 36 84
105 GAL Parklane Centre 17.00 13 36 84
106 GAL Goldseker Industrial Portfolio 17.00 1 36 81
108 GAL Cahners Publishing Company 17.00 59 36 204
109 GAL Walden Woods Village Shopping Center 17.00 35 117
110 GAL Grand Terrace Shopping Center 17.00 6 36 84
111 GAL 2199 Innerbelt Business Center Drive 17.00 42 36 120
112 GAL Kohl's 17.00 60 240
113 GAL Office Max 17.00 44 36 194
114 GAL Meadows Pavillion II 17.00 8 24 96
115 GAL Bernardo Gateway Business Park 17.00 35 36 84
116 GAL 1371 & 1375 N. Miller Street 17.00 25 60 156
117 GAL Blakely Corners Shopping Center 17.00 10 60 180
118 GAL Sparks Medical Office Building 17.00 4 36 84
119 GAL North Canal Office Park 17.00 39 36 144
120 GAL Federal Express 17.00 3 36 84
121 GAL Behr Processing Building 17.00 41 36 84
122 GAL The Shoppes at Salisbury II 17.00 35 36 204
123 GAL Walgreens 17.00 79 60 165
125 GAL Shop N' Kart Discount Grocery 17.00 17 60 180
126 GAL Office Max 17.00 31 36 189
128 GAL Office Max 17.00 27 36 204
129 GAL DEA Building 17.00 29 36 204
130 GAL 56th Street Commerce Park 17.00 59 36 84
131 GAL 4520 36th Street 17.00 18 60 57
132 GAL Pacific Park 17.00 7
133 GAL Walgreens 17.00 3 36 144
134 GAL North Roseburg Plaza 17.00 53 36 144
135 GAL Probity International Corp 17.00 36 36 108
136 GAL NOAA-National Weather Service Building 17.00 60 36 180
137 GAL Winchester Court 17.00 8 36 84
138 GAL 2400 E. Francis 17.00 43 37 83
139 GAL Walgreens 17.00 12 60 168
140 GAL Walgreens 17.00 35 36 204
141 GAL The Shoppes at Salisbury 17.00 70 36 141
142 GAL Ames Department Store 17.00 111 36 204
143 GAL Eckerd Drug Store 17.00 8 60 161
144 GAL Pier I Office Building 17.00 57 36 144
145 GAL Harstad/Coates Industrial Park 17.00 17 60 120
146 GAL Blockbuster Video 17.00 5 60 60
147 GAL Walgreens 17.00 64 240
148 GAL Walgreens 17.00 64 240
149 GAL 15690 North 83rd Way 17.00 1 60 120
150 GAL Walgreens 17.00 79 60 177
151 GAL The McCormick Executive Center Office 17.00 11 60 120
Building
152 GAL Blockbuster Video 17.00 56 180
</TABLE>
TABLE (CONTINUED)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
Prepayment Code(2)
Tab# <YM5 <YM4 <YM3 <YM2 <YM1 5.0% 4.5% 4.0% 3.5% 3.0% 2.5% 2.0% 1.0% Open
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1
3
4
5
6
9 6
10
11 3
13
15
16 6
18 3
20 3
21
24 6
25 3
26
27 3
28
29
31
34 3
35
38 3
39 3
40
41 6
42
43 12 12 12 12 9 3
45
46
47 2
49
50 3
51
52
53
54 3
55 3
56
57 3
58 6
60
61 48 48 24 25
62
63
65
66 6
67
68
70
71
72
73
74
75 12 12 12 12 12
76 12
77
78
79
80 12 12 12 12 9 3
81 12 12 12 12 9 3
82
83 3
84
85 3
87
88
89
90
91
92
93
94
95
96
97
98
99 3
100
101 3
102 9 3
103 3
104 12 24 24
105
106 3
108
109 3
110
111
112
113
114
115
116
117
118
119
120
121
122
123 3
125
126
128
129
130
131 3
132 36 36 24 18 6
133
134
135
136
137
138
139
140
141 3
142
143
144
145
146
147
148
149
150 3
151
152
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
YM Partial
Prepayment
Tab# Seller Property Name Formula(3) Permitted(4) Cut-Off Date Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 GAL Century Park Office Building A Yes $23,896,720
3 GAL Del Norte Plaza A Yes $17,979,067
4 GAL Picture Tel Office Building A Yes $17,756,107
5 GAL Club Hotel & Suites by Doubletree A Yes $16,842,081
6 GAL Ram's Village Apartments E No $14,565,552
9 GAL Downtown Woodinville Retail Development #2 A Yes $13,050,000
10 GAL Mid Rivers Plaza Shopping Center A Yes $12,898,672
11 GAL Pahrump Valley Junction Shopping Center A Yes $12,806,774
13 GAL Westlake Village Marketplace A Yes $10,754,814
15 GAL Greylyn Business Park A Yes $9,607,369
16 GAL 1700 Pennsylvania Avenue, N.W. E No $9,383,281
18 GAL Fairview Center A Yes $8,933,670
20 GAL Fort Collier Industrial Park C No $8,764,095
21 GAL Battelle Environmental Technology Bldg. A Yes $8,614,708
24 GAL Drury Inn - Union Station A No $8,278,530
25 GAL Marketplace of Augusta - Phase 2 A Yes $8,190,600
26 GAL Sonora Quest Laboratories A Yes $8,120,686
27 GAL Winder Corners Shopping Center A Yes $7,910,389
28 GAL Battelle Energy & Environmental Sciences Bldg. A Yes $7,840,352
29 GAL Encino Spectrum E Yes $7,798,047
31 GAL Townview Square Shopping Center A Yes $7,676,106
34 GAL Seven Corners Corporate Center A Yes $7,454,074
35 GAL The Mark Office Building A Yes $7,398,413
38 GAL Fair Oaks Medical Plaza C No $7,046,651
39 GAL First Data Office Building A Yes $7,044,946
40 GAL 1301 Connecticut Avenue, N.W. A Yes $6,888,586
41 GAL Downtown Woodinville Retail Development #1 A Yes $6,900,000
42 GAL Melbourne Square Promenade A Yes $6,849,537
43 GAL Glen Place Shopping Center B No $6,648,658
45 GAL Ocean Terrace Apartments A Yes $6,537,273
46 GAL Pheasant Run Apartments A Yes $6,487,978
47 GAL Liberty Crossing A Yes $6,487,896
49 GAL Danbury Commons Shopping Center A Yes $6,397,909
50 GAL Dairy Ashford Plaza Office Building B No $6,338,536
51 GAL Mt. Vernon Center A Yes $6,042,439
52 GAL Norwalk Plaza E No $3,147,689
53 GAL Magnolia Plaza E No $2,797,946
54 GAL Atrium Circle At Campus Circle B No $5,894,727
55 GAL Fair Oaks Professional Building A Yes $5,721,128
56 GAL Orthologics Building A Yes $5,662,021
57 GAL General Instruments Building B No $5,590,556
58 GAL Home Depot B No $5,590,230
60 GAL Mountain View Professional Plaza A Yes $5,355,150
61 GAL Ventana Village Shopping Center N/A Yes $5,151,783
62 GAL MA Bioservices A Yes $5,147,586
63 GAL 65 K Street A Yes $5,038,665
65 GAL 14600 Winchester Blvd. A Yes $4,962,419
66 GAL Best Buy E No $4,933,616
67 GAL Village Grove Shopping Center E No $4,843,323
68 GAL 6006 Executive Boulevard A Yes $4,769,832
70 GAL 4215 Glencoe A Yes $4,594,756
71 GAL Snowcreek Crossing B No $4,583,447
72 GAL Lighthouse Crossing Shopping Center A Yes $4,482,933
73 GAL Best Buy E No $4,334,333
74 GAL Creekside Office Park A Yes $4,287,914
75 GAL Lithonia Lighting West Building E No $4,222,763
76 GAL 5353-5499 Downey Road E Yes $4,221,076
77 GAL Townley Apartments C No $4,197,916
78 GAL Walgreens and Staples A Yes $4,197,905
79 GAL Prince Frederick Office Park C No $4,195,792
80 GAL Bay Tree Village B No $3,400,147
81 GAL Bugaboo Steak House B No $755,588
82 GAL Cotswold Plaza II A Yes $4,105,633
83 GAL Lake Regency Building A Yes $3,985,677
84 GAL Merit Abrasiveproducts Inc. E No $3,956,036
85 GAL Totem Ridge Business Park E Yes $3,778,994
87 GAL Stafford Corporate Center A No $3,695,610
88 GAL Best Buy E No $3,681,463
89 GAL R and R Plaza E No $3,664,222
90 GAL Best Buy E No $3,649,630
91 GAL Circuit City - Colorado Springs B No $3,431,393
92 GAL 204TH Street Partners E No $3,428,490
93 GAL Commons 1 Office Building A No $3,401,447
94 GAL Quail Business Park B No $3,371,177
95 GAL Hayden Island Business Park A Yes $3,370,101
96 GAL NW Corner of Hwy 74 & Mail Street A No $3,321,133
97 GAL Sportmart Plaza B No $3,269,186
98 GAL Spectrum Business Park V E No $3,236,873
99 GAL Northwest Business Center III B No $3,211,277
100 GAL Mizner Place E No $3,057,427
101 GAL Kroger E No $3,044,970
102 GAL Food 4 Less B No $3,041,913
103 GAL Oxford Hill Apartments C No $3,022,303
104 GAL Linens N' Things E No $3,002,944
105 GAL Parklane Centre A Yes $3,002,149
106 GAL Goldseker Industrial Portfolio A Yes $2,996,511
108 GAL Cahners Publishing Company B No $2,935,451
109 GAL Walden Woods Village Shopping Center A Yes $2,797,215
110 GAL Grand Terrace Shopping Center A Yes $2,780,387
111 GAL 2199 Innerbelt Business Center Drive A Yes $2,754,074
112 GAL Kohl's B No $2,730,798
113 GAL Office Max A Yes $2,717,802
114 GAL Meadows Pavillion II A Yes $2,683,897
115 GAL Bernardo Gateway Business Park E No $2,655,912
116 GAL 1371 & 1375 N. Miller Street E No $2,653,366
117 GAL Blakely Corners Shopping Center A Yes $2,649,094
118 GAL Sparks Medical Office Building B No $2,587,549
119 GAL North Canal Office Park E Yes $2,434,443
120 GAL Federal Express A Yes $2,391,234
121 GAL Behr Processing Building E No $2,354,579
122 GAL The Shoppes at Salisbury II A Yes $2,329,992
123 GAL Walgreens E No $2,319,467
125 GAL Shop N' Kart Discount Grocery A Yes $2,262,922
126 GAL Office Max A Yes $2,243,737
128 GAL Office Max A No $2,216,658
129 GAL DEA Building E No $2,203,906
130 GAL 56th Street Commerce Park B No $2,100,632
131 GAL 4520 36th Street A Yes $2,029,021
132 GAL Pacific Park N/A Yes $1,884,552
133 GAL Walgreens E Yes $1,853,071
134 GAL North Roseburg Plaza E No $1,835,871
135 GAL Probity International Corp E No $1,831,682
136 GAL NOAA-National Weather Service Building E No $1,797,159
137 GAL Winchester Court A Yes $1,781,997
138 GAL 2400 E. Francis E Yes $1,727,502
139 GAL Walgreens E Yes $1,710,090
140 GAL Walgreens E No $1,674,970
141 GAL The Shoppes at Salisbury E No $1,613,896
142 GAL Ames Department Store B No $1,517,427
143 GAL Eckerd Drug Store A Yes $1,473,701
144 GAL Pier I Office Building E No $1,387,116
145 GAL Harstad/Coates Industrial Park A Yes $1,328,168
146 GAL Blockbuster Video B Yes $1,188,692
147 GAL Walgreens B No $1,156,706
148 GAL Walgreens B No $1,128,736
149 GAL 15690 North 83rd Way A Yes $996,967
150 GAL Walgreens E No $967,171
151 GAL The McCormick Executive Center Office Building A Yes $964,999
152 GAL Blockbuster Video B No $901,914
$625,552,838
</TABLE>
<PAGE>
- ---------
FOOTNOTES TO MORTGAGE LOAN SCHEDULE
1 Seasoning represents the approximate number of months elapsed from the
date of the first regularly scheduled payment or due date to the Cut-Off
Date.
2 Indicates prepayment provisions from the first Due Date as stated in the
Mortgage Loan. "YM" represents yield maintenance. "YM1", and "YM3",
represent the greater of the product of the applicable yield maintenance
formula and one percent and three percent of the outstanding principal
balance prepaid, respectively. "YM+0.5%" and "YM+0.75%" represent the
product of the applicable yield maintenance formula plus one half of one
percent and three quarters of one percent of the principal balance
prepaid, respectively. "<YM5", "<YM4", "<YM3", "<YM2", and "<YM1",
represent the lesser of the product of the applicable yield maintenance
formula and five percent, four percent, three percent, two percent and one
percent of the outstanding principal balance prepaid, respectively. The
stated percentages represent fixed percentage premiums based on the amount
prepaid.
Loan No. 2, Landow Office Building, has a six month open prepayment
period, without premium, during months 58-63 of the loan term (February 1,
2003 through July 31, 2003), if the borrower is denied a request to
increase the loan balance subject to certain conditions. The Master
Servicer will be prohibited from advancing additional principal;
therefore, investors should assume the borrower will have this prepayment
option.
Loan No. 3, Del Norte Plaza, in addition to the prepayment option
indicated above, has the option of defeasing the subject loan after the
earlier of the second anniversary of the date the Del Norte Loan is
transferred to a REMIC or the expiration of the fifth year of the loan
term. Any such defeasance will include the release of the related Del
Norte Property and the pledge of substitute collateral in the form of
direct, non-callable, non-redeemable United States Treasury obligations
providing for payments prior, but as close as possible, to all successive
dates (including the maturity date of the Del Norte Loan) on which a
payment of principal and interest under the Del Norte Loan is due, with
each such payment being equal to or greater than such scheduled principal
or interest payment due on such date.
Loan No. 5, Club Hotel & Suites by Doubletree, has a $2,000,000 letter of
credit in place as a performance enhancement. If certain performance
thresholds are not met by the fifth anniversary of the note date, the
letter of credit may be applied to the then outstanding principal balance
of the loan, subject to a 4% prepayment premium. Such letter of credit
application is at the lender's option.
Loan No. 18, Fairview Center, permits the prepayment of up to $800,000 of
the outstanding principal balance, without premium, should the Borders
tenant elect to prepay the non-amortized cost of their outstanding
borrower-financed tenant improvements. Such prepayment may occur at any
time. Such prepayment would result in a recalculation of the applicable
monthly P&I payment.
Loan No. 27, Winder Corners Shopping Center, permits prepayment of up to
three (3) payments during the loan term, so long as each separate payment
is no less than $500,000 and no greater than $1,500,000. Such prepayments
are subject to a 1% prepayment premium.
Loan No. 58, Home Depot, is currently subject to partial condemnation
proceedings. As a result, it is expected a condemnation award of
approximately $342,000 will be applied to the outstanding loan balance
within 90 days of the Cut-off date. Such principal reduction will be
without a prepayment premium.
Loan Nos. 15, Greylyn Business Park; 29, Encino Spectrum; 37, Eastway
Crossing Shopping Center; 85, Totem Ridge Business Park; 86, DSHS Office
Building; 116, 1371&1375 N. Miller Street; 119, North Canal Office Park;
132, Pacific Park; and 138, 2400 E. Francis, permit prepayment of up to
10% of the original principal balance in any loan year, including any
applicable lockout period (except Loan No. 85, Totem Ridge Business Park,
which does not permit prepayment during its related lockout period),
without the payment of a prepayment premium. The original principal
balances for the above loans were $10,000,000; $8,250,000; $7,500,000;
$4,300,000; $3,900,000; $2,800,000; $2,800,000; $1,900,000 and $1,898,500,
respectively.
3 Mortgage Loans with associated Yield Maintenance Prepayment Premiums are
categorized according to unique Yield Maintenance formulas. There are nine
different Yield Maintenance formulas represented by the loans in the
subject mortgage loan pool. The different formulas are reference by the
letters "A", "B", "C", "D", "E", "F", "G", "H", and "I". Summaries for the
nine formulas are listed below under "Yield Maintenance Formulas".
4 "Yes" indicates that during any period in which the borrower is permitted
to prepay the outstanding principal balance of the related mortgage loan
(with or without a prepayment premium), such borrower may prepay an amount
less than the entire outstanding principal balance. Loans so noted include
the nine mortgage loans which permit prepayment in any loan year of up to
10% of the original principal balance without premium. Eight of the nine
mortgage loans that permit such 10% prepayment without premium also permit
partial prepayments outside the scope of the 10% prepayment without
premium option, but such additional partial prepayments are subject to any
applicable prepayment premium.
YIELD MAINTENANCE FORMULAS
The following are summaries of yield maintenance provisions, or formulas,
contained in the related promissory note for certain of the mortgage
loans. There are nine unique yield maintenance formulas represented by the
mortgage loans, each labeled as "A", "B", "C", "D", "E", "F", "G", "H", or
"I". Each mortgage loan, which provides for a yield maintenance formula,
references the applicable formula printed below in the column titled "YM
Formula".
A At any time after the specified anniversary of the date of this Note, the
principal amount of this Note may be prepaid by paying, in addition to the
principal amount, accrued interest, and all other sums due hereunder, a
prepayment consideration equal to the percentage of the outstanding
principal balance being prepaid multiplied by an amount equal to the
remainder obtained by subtracting (i) the entire outstanding principal
balance of this Note as of the date of the prepayment from (ii) the
present value as of the date of the prepayment of the remaining scheduled
payments of principal and interest under this Note including any final
installment of principal payable on the maturity date of this Note
determined by discounting such payments at the U.S. Treasury rate, as such
rate is reported in the Federal Reserve Statistical Release H.15(519)
Selected Interest Rates (or comparable publication as determined by the
holder of this Note) under the heading "U.S. government
securities/Treasury constant maturities" f
B At any time after the specified anniversary of the date of this Note, the
principal amount of this Note may be prepaid by paying, in addition to the
principal amount, accrued interest, and all other sums due hereunder, a
prepayment consideration equal to the product obtained by multiplying (i)
the difference obtained by subtracting from the then applicable interest
rate on this Note the yield rate on United States Treasury Notes having a
maturity date closest to the maturity date of this Note, as such yield
rate is reported in the Wall Street Journal or similar publication on the
fifth business day preceding the prepayment date, and (ii) the number of
years and fraction thereof remaining between the prepayment date and the
scheduled maturity date of this Note, and (iii) the prepaid principal
amount.
C At any time after the specified anniversary of the date of this Note, the
principal amount of this Note may be prepaid by paying, in addition to the
principal amount, accrued interest, and all other sums due hereunder, a
prepayment consideration equal to the present value of an annuity with (i)
a monthly payment equal to the product obtained by multiplying the prepaid
principal amount by the difference obtained by subtracting from the then
applicable interest rate on this Note the yield rate on United States
Treasury Notes having a maturity date closest to the maturity date of this
Note, as such yield rate is reported in the Wall Street Journal or similar
publication on the fifth business day preceding the prepayment date, and
(ii) the number of months and fraction thereof remaining between the
prepayment date and the scheduled maturity date of this Note, and (iii) a
discount rate equal to the yield rate of the Treasury Notes described
above.
D "Yield Maintenance Amount" shall mean the amount equal to (a) the present
value as of the date of prepayment of the remaining scheduled payments of
principal and interest hereunder (allocable to the amount of principal
being prepaid), calculated by discounting such payments monthly at a rate
equal to one-twelfth of the Treasury Yield (as defined below) less (b) the
amount of principal then due (including any amount then being prepaid and
any amount then due remaining to be paid). The Treasury Yield shall equal
the yield on the Treasury Constant Maturities series having a maturity
date equal to the Stated Maturity, as set forth in Federal Reserve
Statistical Release H.15(519) (or a comparable publication or source
selected by Lender if such publication is no longer available) for the
first week ending not less than two full weeks before the date of
prepayment. If the Stated Maturity does not correspond to one of the
Treasury Constant Maturities published in Federal Reserve Statistical
Release H.15(519) (or such successor publication or source), the Treasury
Yield shall be determined by Lender by interpolating between the yield on
securities having the next longer and the next shorter maturity date.
Maker agrees that Lender shall not be obligated actually to reinvest the
amount prepaid in any Treasury obligation as a condition to receiving the
Yield Maintenance Amount.
E At any time after the specified anniversary of the date of this Note, the
principal amount of this Note may be prepaid by paying, in addition to the
principal amount, accrued interest, and all other sums due hereunder, a
prepayment consideration equal to the present value (as determined by
discounting back on a monthly basis, at the Treasury Notes rate identified
below in this paragraph, from the maturity date of this Note to such
prepayment date) of the product obtained by multiplying (i) the difference
obtained by subtracting from the then applicable interest rate on this
Note the yield rate on United States Treasury Notes having a maturity date
closest to the maturity date of this Note, as such yield rate is reported
in The Wall Street Journal or similar publication on the fifth business
day preceding the prepayment date, and (ii) the number of years and
fraction thereof remaining between the prepayment date and the scheduled
maturity date of this Note, and (iii) the prepaid principal amount.
F "Yield Maintenance Amount" at any time shall mean the amount equal to (a)
the present value as of the date of prepayment of the remaining scheduled
payments of principal and interest hereunder (allocable to the amount of
principal being prepaid), calculated by discounting such payments monthly
at a rate equal to one-twelfth of the Treasury Yield (as defined below)
less (b) the amount of principal being prepaid. The Treasury Yield shall
equal the yield on the Treasury Bonds series having a maturity date equal
to the Stated Maturity, as set forth in The Wall Street Journal (or a
comparable publication or source selected by the Lender if such
publication is no longer available) as of the close of business for the
Friday that is two full weeks prior to the date of prepayment (or the
previous Thursday should the Treasury bond market be closed on that
Friday). Application of the previous sentence is illustrated by the
following examples:
If Prepayment Date is: Then apply Treasury Rate as of the end
of the following day:
Monday, January 26, 1998 Friday, January 9, 1998
Thursday, January 29,1998 Friday, January 9, 1998
Friday, January 30, 1998 Friday, January 16, 1998
If the Stated Maturity does not correspond to one of the Treasury Bonds
published in The Wall Street Journal (or such successor publication or
source), the Treasury Yield shall be determined by Lender by interpolating
between the yield on securities having the next longer and the next
shorter maturity date. Maker agrees that Lender shall not be obligated
actually to reinvest the amount prepaid in any treasury obligation as a
condition to receiving the Yield Maintenance Amount. The Yield Maintenance
Amount shall be calculated by Lender in a commercially reasonable manner
and such calculation shall be binding on Maker absent manifest error.
G "Yield Maintenance Amount" at any time shall mean the amount equal to (a)
the present value as of the date of prepayment of the remaining scheduled
payments of principal and interest hereunder (allocable to the amount of
principal being prepaid), calculated by discounting such payments monthly
at a rate equal to (y) one-twelfth of the Treasury Yield (as defined
below) for any prepayment made before the fourth anniversary of the date
of execution hereof and (z) one-twelfth of the sum of Treasury Yield plus
0.50% for any prepayment after such fourth anniversary less (b) the amount
of principal then due (including any amount then being prepaid and any
amount then due remaining to be paid). The Treasury Yield shall equal the
yield on the Treasury Constant Maturities series having a maturity date
equal to the Stated Maturity, as set forth in Federal Reserve Statistical
Release H.15(519) (or a comparable publication or source selected by
Lender if such publication is no longer available) for the first week
ending
If the Stated Maturity does not correspond to one of the Treasury
Constant Maturities published in Federal Reserve Statistical Release
H.15(519) (or such successor publication or source), the Treasury Yield
shall be determined by Lender by interpolating between the yield on
securities having the next longer and the next shorter maturity date.
Maker agrees that Lender shall not be obligated actually to reinvest the
amount prepaid in any treasury obligation as a condition to receiving the
Yield Maintenance Amount. Not withstanding anything to the contrary in
this paragraph, the Yield Maintenance Amount shall be subject to the terms
and provisions of Section 8A hereof (Maximum Interest clause).
H "Yield Maintenance Premium" shall mean the premium which shall be the
product of (1) a fraction, the numerator of which is the positive excess,
if any, of (i) the present value of all future Payments of principal and
interest on the Principal Amount, including the Principal Amount due at
maturity, to be made on the Note before the prepayment in question,
discounted at an interest rate per annum equal to the Treasury Constant
Maturity Yield Index published during the second full week preceding the
date on which such premium is payable for instruments having a maturity
coterminous with the remaining term of the Note, plus 35 basis points,
over (ii) the Principal Amount immediately before such prepayment, and the
denominator of which is the Principal Amount immediately prior to the
prepayment, and (2) the Principal Amount being prepaid; provided, however,
that if there is no Treasury Constant Maturity Yield Index for instruments
having a maturity coterminous with the remaining term of the Note, then
the index re
if the average is not such a multiple) the yields of the relevant Treasury
Constant Maturity Yield Indices (rounded, if necessary, to the nearest
1/100 of 1% with any figure of 1/200 of 1% or above rounded upward).
I "Yield Maintenance Premium" shall mean the premium which shall be the
product of (1) a fraction, the numerator of which is the positive excess,
if any, of (i) the present value of all future Payments of principal and
interest on the Principal Amount, including the Principal Amount due at
maturity, to be made on the Note before the prepayment in question,
discounted at an interest rate per annum equal to the Treasury Constant
Maturity Yield Index published during the second full week preceding the
date on which such premium is payable for instruments having a maturity
coterminous with the remaining term of the Note, over (ii) the Principal
Amount immediately before such prepayment, and the denominator of which is
the Principal Amount immediately prior to the prepayment, and (2) the
Principal Amount being prepaid; provided, however, that if there is no
Treasury Constant Maturity Yield Index for instruments having a maturity
coterminous with the remaining term of the Note, then the index referred
to in (1) above shall be equal to the weighted average yeild to maturity
of the Treasury Constant Maturity Yield Indices with maturities next
longer and shorter than such remaining duration of the Note, calculated by
averaging (and rounding upward to the nearest whole multiple of 1/100 of
1% per annum, if the average is not such a multiple) the yields of the
relevant Treasury Constant Maturity Yield Indices (rounded, if necessary,
to the nearest 1/100 of 1% with any figure of 1/200 of 1% or above rounded
upward).
<PAGE>
SCHEDULE II
RETIREMENT SYSTEM LOAN SCHEDULE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Tab# Seller Property Name Street Address City
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
2 SF Landow Office Building 7910 Woodmont Avenue Bethesda
7 SF Walsh Research Center 2401-2403 Walsh Avenue Santa Clara
8 SF 45 West 45th Street 45 West 45th Street New York
12 SF Ogden Mall NW Corner Ogden Avenue & Naperville-Weaton Road Naperville
14 SF Ingram Micro Inc. Facility 1759 Wehrle Drive & 395 Youngs Road Amherst
17 SF Federal Express 300 Fulling Mill Road Middletown
19 SF Stoneridge II Office Building 2050 North Woodward Avenue Bloomfield Hills
22 SF Parkview Office Building 5821 Fairview Road Charlotte
23 SF Arboretum IV Office Building 34705 West 12 Mile Road Farmington Hills
30 SF Seventh Street Properties 2910 Seventh ST. & 890 Heinz Avenue Berkley
32 SF Highridge Apartments 9353 Viscount Boulevard El Paso
33 SF Federal Express 1500 Blueball Avenue Lower Chichester Township
36 SF Rancho Viejo Apartments 8530 North 22nd Avenue Phoenix
37 SF Eastway Crossing Shopping Center 3304-3330 Eastway Drive Charlotte
44 SF Richmond Plaza Shopping Center NE Quad & I-520 Wrightsboro Road Augusta
48 SF Loganville Town Center 4325 Atlanta Highway Loganville
59 SF 1875 Charleston Road 1875 Charleston Road Mountain View
64 SF 655 5th Avenue 655 5TH Avenue New York
69 SF University Business Center 3019 Alvin Devane Boulevard Austin
86 SF DSHS Office Building 900 East College Way Mount Vernon
107 SF Walgreens NEC Marks Avenue & Ashlan Avenue Fresno
124 SF Eckerd Drug Store 8522 US Highway 19 Port Richey
127 SF Eckerd Drug Store 8401 Armenia Avenue Tampa
</TABLE>
TABLE (CONTINUED)
- --------------------------------------------------------------------------------
Tab# State Original Balance Borrower Name
- --------------------------------------------------------------------------------
2 MD $19,000,000 Landow Building LP
7 CA $14,400,000 G & I Walsh LLC
8 NY $14,000,000 Tmt-45Th Street Inc.
12 IL $11,250,000 Norcor Naperville Assoc. LLC
14 NY $10,761,000 Amherst Investors Business
17 PA $9,375,000 Woodland Harris, LLC
19 MI $8,970,000 Woodward Ventures LLC
22 NC $8,631,595 G & I Parkview LLC
23 MI $8,750,000 Arboretum Properties LP Phase IV
30 CA $7,800,000 Seventh Street Property General Partnership
32 TX $7,900,000 Sovereign Realty 1983-II LTD.
33 PA $7,600,000 Kendall Holdings-Pa LLC
36 AZ $7,391,247 G & I Rancho Viejo LLC
37 NC $7,500,000 Eastway Crossing II-Charlotte LLC
44 GA $6,577,158 G & I Augusta LLC
48 GA $6,500,000 Walton Capital LLC
59 CA $5,400,000 Charleston/Landings Associates LP
64 NY $5,000,000 655 Property LLC
69 TX $5,100,000 UBC LTD
86 WA $3,900,000 MV LLC
107 CA $3,000,000 BDC Ashlan, LP
124 FL $2,298,591 U.S. 19 Property LLC
127 FL $2,248,169 Armenia Property LLC
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Tab# Seller Property Name Fee/Leasehold Note Date Maturity Date Orig. Term Rem. Term
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
2 SF Landow Office Building Fee 03/19/1998 04/01/2008 120 105
7 SF Walsh Research Center Fee 02/26/1999 03/01/2004 60 56
8 SF 45 West 45th Street Fee 12/28/1998 01/01/2009 120 114
12 SF Ogden Mall Fee 10/20/1995 10/31/2007 144 100
14 SF Ingram Micro Inc. Facility Fee 10/26/1998 11/01/2013 180 172
17 SF Federal Express Fee 01/28/1999 02/01/2009 120 115
19 SF Stoneridge II Office Building Fee 03/31/1998 03/31/2008 120 105
22 SF Parkview Office Building Fee 02/26/1999 03/01/2004 60 56
23 SF Arboretum IV Office Building Fee 10/31/1996 11/01/2006 120 88
30 SF Seventh Street Properties Fee 03/30/1999 05/01/2009 120 118
32 SF Highridge Apartments Fee 09/28/1996 08/31/2003 84 50
33 SF Federal Express Fee 04/08/1998 05/01/2012 168 154
36 SF Rancho Viejo Apartments Fee 02/26/1999 03/01/2004 60 56
37 SF Eastway Crossing Shopping Center Fee 03/09/1998 04/01/2018 240 225
44 SF Richmond Plaza Shopping Center Fee 02/26/1999 03/01/2004 60 56
48 SF Loganville Town Center Fee 08/04/1998 08/01/2018 240 229
59 SF 1875 Charleston Road Leasehold 04/12/1999 05/01/2014 180 178
64 SF 655 5th Avenue Fee 04/23/1999 05/01/2004 60 58
69 SF University Business Center Fee 10/31/1995 10/31/2002 84 40
86 SF DSHS Office Building Fee 02/18/1998 04/01/2008 120 105
107 SF Walgreens Fee 06/28/1999 07/01/2009 120 120
124 SF Eckerd Drug Store Fee 12/17/1998 01/01/2018 228 222
127 SF Eckerd Drug Store Fee 12/17/1998 08/01/2017 223 217
</TABLE>
<PAGE>
TABLE (CONTINUED)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Adm. Cost
Tab# Orig. Amort Rem. Amort Rate Monthly Debt Service Rate (bps) Seasoning(1)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
2 300 285 7.000% $134,288.05 37.25 15
7 360 356 6.530% $91,302.09 25.25 4
8 N/A N/A 7.000% $81,666.67 25.25 6
12 264 220 8.280% $92,717.77 25.25 44
14 300 292 6.310% $71,386.65 25.25 8
17 300 295 7.000% $66,260.55 25.25 5
19 324 309 7.250% $63,166.20 25.25 15
22 360 356 6.530% $54,727.96 25.25 4
23 300 268 8.670% $71,462.59 25.25 32
30 300 298 7.125% $55,752.32 25.25 2
32 324 290 8.680% $65,341.64 25.25 34
33 360 346 7.030% $50,716.21 25.25 14
36 360 356 6.530% $46,863.63 25.25 4
37 240 225 7.500% $60,419.49 40.25 15
44 360 356 6.530% $41,701.96 25.25 4
48 300 289 7.200% $46,773.27 37.25 11
59 180 178 7.250% $49,294.60 25.25 2
64 N/A N/A 6.580% $27,416.67 25.25 2
69 264 220 8.250% $41,933.38 25.25 44
86 180 165 7.250% $35,601.66 40.25 15
107 300 300 7.000% $21,203.38 25.25 0
124 300 294 6.625% $15,700.27 25.25 6
127 300 294 6.625% $15,355.86 25.25 6
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Prepayment Code(2)
Tab# Seller Property Name Lockout YM YM1 YM3 YM+0.5% YM+0.75% <YM5 <YM4 <YM3
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2 SF Landow Office Building 60
7 SF Walsh Research Center 24 33
8 SF 45 West 45th Street 36 78
12 SF Ogden Mall 24 36 36 42
14 SF Ingram Micro Inc. Facility 60 117
17 SF Federal Express 36 81
19 SF Stoneridge II Office Building 12 102
22 SF Parkview Office Building 24 33
23 SF Arboretum IV Office Building 12 102
30 SF Seventh Street Properties 36 84
32 SF Highridge Apartments 12 69
33 SF Federal Express 84 81
36 SF Rancho Viejo Apartments 24 33
37 SF Eastway Crossing Shopping Center 120
44 SF Richmond Plaza Shopping Center 24 33
48 SF Loganville Town Center 24 210
59 SF 1875 Charleston Road 96 78
64 SF 655 5th Avenue 5 47
69 SF University Business Center 24 54
86 SF DSHS Office Building
107 SF Walgreens 36 84
124 SF Eckerd Drug Store 60 168
127 SF Eckerd Drug Store 60 163
</TABLE>
TABLE (CONTINUED)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
Tab# <YM2 <YM1 5.0% 4.5% 4.0% 3.5% 3.0% 2.5% 2.0% 1.0% Open
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2 12 12 12 21 3
7 3
8 6
12 6
14 3
17 3
19 6
22 3
23 6
30
32 3
33 3
36 3
37 36 12 12 12 12 12 21 3
44 3
48 6
59 6
64 8
69 6
86 60 60
107
124
127
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
YM Partial Prepayment
Tab# Seller Property Name Formula(3) Permitted(4) Cut-Off Date Balance
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
2 SF Landow Office Building N/A No $18,633,444
7 SF Walsh Research Center H No $14,347,808
8 SF 45 West 45th Street A Yes $14,000,000
12 SF Ogden Mall D No $11,219,710
14 SF Ingram Micro Inc. Facility I No $10,640,384
17 SF Federal Express A Yes $9,316,456
19 SF Stoneridge II Office Building F No $8,829,570
22 SF Parkview Office Building H No $8,600,310
23 SF Arboretum IV Office Building D No $8,454,403
30 SF Seventh Street Properties A Yes $7,781,064
32 SF Highridge Apartments D No $7,615,631
33 SF Federal Express A No $7,509,920
36 SF Rancho Viejo Apartments H No $7,364,458
37 SF Eastway Crossing Shopping Center N/A Yes $7,287,699
44 SF Richmond Plaza Shopping Center H No $6,553,319
48 SF Loganville Town Center A Yes $6,411,882
59 SF 1875 Charleston Road A Yes $5,366,560
64 SF 655 5th Avenue A No $5,000,000
69 SF University Business Center G No $4,748,373
86 SF DSHS Office Building N/A Yes $3,711,572
107 SF Walgreens E Yes $3,000,000
124 SF Eckerd Drug Store A Yes $2,280,279
127 SF Eckerd Drug Store A Yes $2,230,258
</TABLE>
<PAGE>
FOOTNOTES TO MORTGAGE LOAN SCHEDULE
1 Seasoning represents the approximate number of months elapsed from the
date of the first regularly scheduled payment or due date to the Cut-Off
Date.
2 Indicates prepayment provisions from the first Due Date as stated in the
Mortgage Loan. "YM" represents yield maintenance. "YM1", and "YM3",
represent the greater of the product of the applicable yield maintenance
formula and one percent and three percent of the outstanding principal
balance prepaid, respectively. "YM+0.5%" and "YM+0.75%" represent the
product of the applicable yield maintenance formula plus one half of one
percent and three quarters of one percent of the principal balance
prepaid, respectively. "<YM5", "<YM4", "<YM3", "<YM2", and "<YM1",
represent the lesser of the product of the applicable yield maintenance
formula and five percent, four percent, three percent, two percent and one
percent of the outstanding principal balance prepaid, respectively. The
stated percentages represent fixed percentage premiums based on the amount
prepaid.
Loan No. 2, Landow Office Building, has a six month open prepayment
period, without premium, during months 58-63 of the loan term (February 1,
2003 through July 31, 2003), if the borrower is denied a request to
increase the loan balance subject to certain conditions. The Master
Servicer will be prohibited from advancing additional principal;
therefore, investors should assume the borrower will have this prepayment
option.
Loan No. 3, Del Norte Plaza, in addition to the prepayment option
indicated above, has the option of defeasing the subject loan after the
earlier of the second anniversary of the date the Del Norte Loan is
transferred to a REMIC or the expiration of the fifth year of the loan
term. Any such defeasance will include the release of the related Del
Norte Property and the pledge of substitute collateral in the form of
direct, non-callable, non-redeemable United States Treasury obligations
providing for payments prior, but as close as possible, to all successive
dates (including the maturity date of the Del Norte Loan) on which a
payment of principal and interest under the Del Norte Loan is due, with
each such payment being equal to or greater than such scheduled principal
or interest payment due on such date.
Loan No. 5, Club Hotel & Suites by Doubletree, has a $2,000,000 letter of
credit in place as a performance enhancement. If certain performance
thresholds are not met by the fifth anniversary of the note date, the
letter of credit may be applied to the then outstanding principal balance
of the loan, subject to a 4% prepayment premium. Such letter of credit
application is at the lender's option.
Loan No. 18, Fairview Center, permits the prepayment of up to $800,000 of
the outstanding principal balance, without premium, should the Borders
tenant elect to prepay the non-amortized cost of their outstanding
borrower-financed tenant improvements. Such prepayment may occur at any
time. Such prepayment would result in a recalculation of the applicable
monthly P&I payment.
Loan No. 27, Winder Corners Shopping Center, permits prepayment of up to
three (3) payments during the loan term, so long as each separate payment
is no less than $500,000 and no greater than $1,500,000. Such prepayments
are subject to a 1% prepayment premium.
Loan No. 58, Home Depot, is currently subject to partial condemnation
proceedings. As a result, it is expected a condemnation award of
approximately $342,000 will be applied to the outstanding loan balance
within 90 days of the Cut-off date. Such principal reduction will be
without a prepayment premium.
Loan Nos. 15, Greylyn Business Park; 29, Encino Spectrum; 37, Eastway
Crossing Shopping Center; 85, Totem Ridge Business Park; 86, DSHS Office
Building; 116, 1371&1375 N. Miller Street; 119, North Canal Office Park;
132, Pacific Park; and 138, 2400 E. Francis, permit prepayment of up to
10% of the original principal balance in any loan year, including any
applicable lockout period (except Loan No. 85, Totem Ridge Business Park,
which does not permit prepayment during its related lockout period),
without the payment of a prepayment premium. The original principal
balances for the above loans were $10,000,000; $8,250,000; $7,500,000;
$4,300,000; $3,900,000; $2,800,000; $2,800,000; $1,900,000 and $1,898,500,
respectively.
3 Mortgage Loans with associated Yield Maintenance Prepayment Premiums are
categorized according to unique Yield Maintenance formulas. There are nine
different Yield Maintenance formulas represented by the loans in the
subject mortgage loan pool. The different formulas are reference by the
letters "A", "B", "C", "D", "E", "F", "G", "H", and "I". Summaries for the
nine formulas are listed below under "Yield Maintenance Formulas".
4 "Yes" indicates that during any period in which the borrower is permitted
to prepay the outstanding principal balance of the related mortgage loan
(with or without a prepayment premium), such borrower may prepay an amount
less than the entire outstanding principal balance. Loans so noted include
the nine mortgage loans which permit prepayment in any loan year of up to
10% of the original principal balance without premium. Eight of the nine
mortgage loans that permit such 10% prepayment without premium also permit
partial prepayments outside the scope of the 10% prepayment without
premium option, but such additional partial prepayments are subject to any
applicable prepayment premium.
YIELD MAINTENANCE FORMULAS
The following are summaries of yield maintenance provisions, or formulas,
contained in the related promissory note for certain of the mortgage
loans. There are nine unique yield maintenance formulas represented by the
mortgage loans, each labeled as "A", "B", "C", "D", "E", "F", "G", "H", or
"I". Each mortgage loan, which provides for a yield maintenance formula,
references the applicable formula printed below in the column titled "YM
Formula".
A At any time after the specified anniversary of the date of this Note, the
principal amount of this Note may be prepaid by paying, in addition to the
principal amount, accrued interest, and all other sums due hereunder, a
prepayment consideration equal to the percentage of the outstanding
principal balance being prepaid multiplied by an amount equal to the
remainder obtained by subtracting (i) the entire outstanding principal
balance of this Note as of the date of the prepayment from (ii) the
present value as of the date of the prepayment of the remaining scheduled
payments of principal and interest under this Note including any final
installment of principal payable on the maturity date of this Note
determined by discounting such payments at the U.S. Treasury rate, as such
rate is reported in the Federal Reserve Statistical Release H.15(519)
Selected Interest Rates (or comparable publication as determined by the
holder of this Note) under the heading "U.S. government
securities/Treasury constant maturities" f
B At any time after the specified anniversary of the date of this Note, the
principal amount of this Note may be prepaid by paying, in addition to the
principal amount, accrued interest, and all other sums due hereunder, a
prepayment consideration equal to the product obtained by multiplying (i)
the difference obtained by subtracting from the then applicable interest
rate on this Note the yield rate on United States Treasury Notes having a
maturity date closest to the maturity date of this Note, as such yield
rate is reported in the Wall Street Journal or similar publication on the
fifth business day preceding the prepayment date, and (ii) the number of
years and fraction thereof remaining between the prepayment date and the
scheduled maturity date of this Note, and (iii) the prepaid principal
amount.
C At any time after the specified anniversary of the date of this Note, the
principal amount of this Note may be prepaid by paying, in addition to the
principal amount, accrued interest, and all other sums due hereunder, a
prepayment consideration equal to the present value of an annuity with (i)
a monthly payment equal to the product obtained by multiplying the prepaid
principal amount by the difference obtained by subtracting from the then
applicable interest rate on this Note the yield rate on United States
Treasury Notes having a maturity date closest to the maturity date of this
Note, as such yield rate is reported in the Wall Street Journal or similar
publication on the fifth business day preceding the prepayment date, and
(ii) the number of months and fraction thereof remaining between the
prepayment date and the scheduled maturity date of this Note, and (iii) a
discount rate equal to the yield rate of the Treasury Notes described
above.
D "Yield Maintenance Amount" shall mean the amount equal to (a) the present
value as of the date of prepayment of the remaining scheduled payments of
principal and interest hereunder (allocable to the amount of principal
being prepaid), calculated by discounting such payments monthly at a rate
equal to one-twelfth of the Treasury Yield (as defined below) less (b) the
amount of principal then due (including any amount then being prepaid and
any amount then due remaining to be paid). The Treasury Yield shall equal
the yield on the Treasury Constant Maturities series having a maturity
date equal to the Stated Maturity, as set forth in Federal Reserve
Statistical Release H.15(519) (or a comparable publication or source
selected by Lender if such publication is no longer available) for the
first week ending not less than two full weeks before the date of
prepayment. If the Stated Maturity does not correspond to one of the
Treasury Constant Maturities published in Federal Reserve Statistical
Release H.15(519) (or such successor publication or source), the Treasury
Yield shall be determined by Lender by interpolating between the yield on
securities having the next longer and the next shorter maturity date.
Maker agrees that Lender shall not be obligated actually to reinvest the
amount prepaid in any Treasury obligation as a condition to receiving the
Yield Maintenance Amount.
E At any time after the specified anniversary of the date of this Note, the
principal amount of this Note may be prepaid by paying, in addition to the
principal amount, accrued interest, and all other sums due hereunder, a
prepayment consideration equal to the present value (as determined by
discounting back on a monthly basis, at the Treasury Notes rate identified
below in this paragraph, from the maturity date of this Note to such
prepayment date) of the product obtained by multiplying (i) the difference
obtained by subtracting from the then applicable interest rate on this
Note the yield rate on United States Treasury Notes having a maturity date
closest to the maturity date of this Note, as such yield rate is reported
in The Wall Street Journal or similar publication on the fifth business
day preceding the prepayment date, and (ii) the number of years and
fraction thereof remaining between the prepayment date and the scheduled
maturity date of this Note, and (iii) the prepaid principal amount.
F "Yield Maintenance Amount" at any time shall mean the amount equal to (a)
the present value as of the date of prepayment of the remaining scheduled
payments of principal and interest hereunder (allocable to the amount of
principal being prepaid), calculated by discounting such payments monthly
at a rate equal to one-twelfth of the Treasury Yield (as defined below)
less (b) the amount of principal being prepaid. The Treasury Yield shall
equal the yield on the Treasury Bonds series having a maturity date equal
to the Stated Maturity, as set forth in The Wall Street Journal (or a
comparable publication or source selected by the Lender if such
publication is no longer available) as of the close of business for the
Friday that is two full weeks prior to the date of prepayment (or the
previous Thursday should the Treasury bond market be closed on that
Friday). Application of the previous sentence is illustrated by the
following examples:
If Prepayment Date is: Then apply Treasury Rate as of the end
of the following day:
Monday, January 26, 1998 Friday, January 9, 1998
Thursday, January 29,1998 Friday, January 9, 1998
Friday, January 30, 1998 Friday, January 16, 1998
If the Stated Maturity does not correspond to one of the Treasury Bonds
published in The Wall Street Journal (or such successor publication or
source), the Treasury Yield shall be determined by Lender by interpolating
between the yield on securities having the next longer and the next
shorter maturity date. Maker agrees that Lender shall not be obligated
actually to reinvest the amount prepaid in any treasury obligation as a
condition to receiving the Yield Maintenance Amount. The Yield Maintenance
Amount shall be calculated by Lender in a commercially reasonable manner
and such calculation shall be binding on Maker absent manifest error.
G "Yield Maintenance Amount" at any time shall mean the amount equal to (a)
the present value as of the date of prepayment of the remaining scheduled
payments of principal and interest hereunder (allocable to the amount of
principal being prepaid), calculated by discounting such payments monthly
at a rate equal to (y) one-twelfth of the Treasury Yield (as defined
below) for any prepayment made before the fourth anniversary of the date
of execution hereof and (z) one-twelfth of the sum of Treasury Yield plus
0.50% for any prepayment after such fourth anniversary less (b) the amount
of principal then due (including any amount then being prepaid and any
amount then due remaining to be paid). The Treasury Yield shall equal the
yield on the Treasury Constant Maturities series having a maturity date
equal to the Stated Maturity, as set forth in Federal Reserve Statistical
Release H.15(519) (or a comparable publication or source selected by
Lender if such publication is no longer available) for the first week
ending
If the Stated Maturity does not correspond to one of the Treasury
Constant Maturities published in Federal Reserve Statistical Release
H.15(519) (or such successor publication or source), the Treasury Yield
shall be determined by Lender by interpolating between the yield on
securities having the next longer and the next shorter maturity date.
Maker agrees that Lender shall not be obligated actually to reinvest the
amount prepaid in any treasury obligation as a condition to receiving the
Yield Maintenance Amount. Not withstanding anything to the contrary in
this paragraph, the Yield Maintenance Amount shall be subject to the terms
and provisions of Section 8A hereof (Maximum Interest clause).
H "Yield Maintenance Premium" shall mean the premium which shall be the
product of (1) a fraction, the numerator of which is the positive excess,
if any, of (i) the present value of all future Payments of principal and
interest on the Principal Amount, including the Principal Amount due at
maturity, to be made on the Note before the prepayment in question,
discounted at an interest rate per annum equal to the Treasury Constant
Maturity Yield Index published during the second full week preceding the
date on which such premium is payable for instruments having a maturity
coterminous with the remaining term of the Note, plus 35 basis points,
over (ii) the Principal Amount immediately before such prepayment, and the
denominator of which is the Principal Amount immediately prior to the
prepayment, and (2) the Principal Amount being prepaid; provided, however,
that if there is no Treasury Constant Maturity Yield Index for instruments
having a maturity coterminous with the remaining term of the Note, then
the index re
if the average is not such a multiple) the yields of the relevant Treasury
Constant Maturity Yield Indices (rounded, if necessary, to the nearest
1/100 of 1% with any figure of 1/200 of 1% or above rounded upward).
I "Yield Maintenance Premium" shall mean the premium which shall be the
product of (1) a fraction, the numerator of which is the positive excess,
if any, of (i) the present value of all future Payments of principal and
interest on the Principal Amount, including the Principal Amount due at
maturity, to be made on the Note before the prepayment in question,
discounted at an interest rate per annum equal to the Treasury Constant
Maturity Yield Index published during the second full week preceding the
date on which such premium is payable for instruments having a maturity
coterminous with the remaining term of the Note, over (ii) the Principal
Amount immediately before such prepayment, and the denominator of which is
the Principal Amount immediately prior to the prepayment, and (2) the
Principal Amount being prepaid; provided, however, that if there is no
Treasury Constant Maturity Yield Index for instruments having a maturity
coterminous with the remaining term of the Note, then the index referred
to in (1) above shall be equal to the weighted average yeild to maturity
of the Treasury Constant Maturity Yield Indices with maturities next
longer and shorter than such remaining duration of the Note, calculated by
averaging (and rounding upward to the nearest whole multiple of 1/100 of
1% per annum, if the average is not such a multiple) the yields of the
relevant Treasury Constant Maturity Yield Indices (rounded, if necessary,
to the nearest 1/100 of 1% with any figure of 1/200 of 1% or above rounded
upward).
