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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 28, 1999
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 333-64765 13-341414
(State or Other (Commission File Number) (I.R.S. Employer
Jurisdiction Incorporation) Identification Number)
-----------------
One New York Plaza, 18th Floor
New York, New York 10292-2018
(principal executive offices)
(212) 778-1000
Item 2. ACQUISITION OR DISPOSITION OF ASSETS
On July 28, 1999, a single series of certificates, entitled Commercial
Mortgage Pass-Through Certificates, Series 1999-C2 (the "Certificates"), was
issued pursuant to a pooling and servicing agreement dated as of July 1, 1999
(the "Pooling and Servicing Agreement"), attached hereto as Exhibit 4.1, among
Prudential Securities Secured Financing Corporation (the "Depositor") as
depositor, National Realty Funding L.C., as Master Servicer and as Special
Servicer and The Chase Manhattan Bank, as Trustee. The Certificates consist of
twenty classes identified as the "Class A-1 Certificates," the "Class A-2
Certificates," the "Class A-EC1 Certificates," the "Class A-EC2 Certificates",
the "Class B Certificates," the "Class C Certificates," the "Class D
Certificates," the "Class E Certificates," the "Class F Certificates," the
"Class G Certificates," the "Class H Certificates," the "Class J Certificates,"
the "Class K Certificates," the "Class L Certificates," the "Class M
Certificates," the "Class N Certificates," the "Class O Certificates," the
"Class R-I Certificates," the "Class R-II Certificates," and the "Class R-III
Certificates," respectively, and were issued in exchange for, and evidence the
entire beneficial ownership interest in, the assets of a trust fund (the "Trust
Fund") consisting primarily of a segregated pool (the "Mortgage Pool") of 234
fixed rate, multifamily and commercial mortgage loans (the "Mortgage Loans")
having, as of the close of business on July 1, 1999 (the "Cut-off Date"), an
aggregate principal balance of $869,289,765, after taking into account all
payments of principal due on the Mortgage Loans on or before such date, whether
or not received.
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The Class A-1 Certificates have an initial Class Principal Balance of
$229,000,000. The Class A-2 Certificates have an initial Class Principal
Balance of $396,880,000. The Class AEC1 Certificates have an initial Class A-EC1
Notional Amount of $869,289,765. The Class A-EC2 Certificates have an initial
Class A-EC2 Notional Amount of $97,798,765. The Class B Certificates have an
initial Class Principal Balance of $41,293,000. The Class C Certificates have an
initial Class Principal Balance of $45,639,000. The Class D Certificates have an
initial Class Principal Balance of $13,040,000. The Class E Certificates have an
initial Class Principal Balance of $30,426,000. The Class F Certificates have an
initial Class Principal Balance of $15,213,000. The Class G Certificates have an
initial Class Principal Balance of $15,213,000. The Class H Certificates have an
initial Class Principal Balance of $19,559,000. The Class J Certificates have an
initial Class Principal Balance of $6,520,000. The Class K Certificates have an
initial Class Principal Balance of $6,520,000. The Class L Certificates have an
initial Class Principal Balance of $17,386,000. The Class M Certificates have an
initial Class Principal Balance of $4,347,000. The Class N Certificates have an
initial Class Principal Balance of $8,693,000. The Class 0 Certificates have an
Initial Class Principal Balance of $19,560,765. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to them in the Pooling
and Servicing Agreement.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of Business Acquired
Not applicable.
(b) Pro Forma Financial Information
Not applicable.
(c) Exhibits.
<TABLE>
<CAPTION>
Exhibit No.
of Item 601 of
Exhibit No. Regulation S-K Description
----------- --------------- -----------
<S> <C> <C>
4.1 4 Pooling and Servicing Agreement dated as
of July 1, 1999 among Prudential Securities
Secured Financing Corporation, as
Depositor, National Realty Funding L.C.,
as Master Servicer and as Special Servicer
and The Chase Manhattan Bank, as
Trustee.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto, duly authorized.
Dated: August 12, 1999
HELLER FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
By: /s/ Vincent Pica II
-----------------------------
Name: Vincent Pica II
Title: President
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PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION,
as DEPOSITOR
NATIONAL REALTY FUNDING L.C.,
as MASTER SERVICER
NATIONAL REALTY FUNDING L.C.,
as SPECIAL SERVICER
and
THE CHASE MANHATTAN BANK,
as TRUSTEE
-----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 1999
-----------------------------------------
Commercial Mortgage Pass-Through Certificates
Series 1999-C2
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
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PAGE
<S> <C>
ARTICLE I. DEFINITIONS...........................................................................................3
Section 1.1. Defined Terms....................................................................................3
Section 1.2. Certain Calculations............................................................................48
Section 1.3. Certain Constructions...........................................................................49
ARTICLE II. CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES.....................................49
Section 2.1. Conveyance and Assignment of Mortgage Loans.....................................................49
Section 2.2. Acceptance by the Custodian and the Trustee.....................................................54
Section 2.3. Representations and Warranties of the Depositor.................................................55
Section 2.4. Representations, Warranties and Covenants of the Master Servicer, Special Servicer..............59
Section 2.5. Execution and Delivery of Certificates; Issuance of Lower-Tier Regular Interests................62
Section 2.6. Miscellaneous REMIC Provisions..................................................................63
Section 2.7. Documents Not Delivered to Custodian............................................................64
ARTICLE III. ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS.................................................64
Section 3.1. Master Servicer to Act as Master Servicer; Special Servicer to Act as Special Servicer;
Administration of the Mortgage Loans............................................................64
Section 3.2. Liability of the Master Servicer................................................................68
Section 3.3. Collection of Certain Mortgage Loan Payments....................................................69
Section 3.4. Collection of Taxes, Assessments and Similar Items..............................................69
Section 3.5. Collection Account; Distribution Account; Interest Reserve Account..............................71
Section 3.6. Permitted Withdrawals from the Collection Account...............................................74
Section 3.7. Investment of Funds in the Collection Account and the Reserve Accounts..........................75
Section 3.8. Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage................77
Section 3.9. Enforcement of Due-On-Sale and Due-On-Encumbrance Clauses; Assumption
Agreements and Defeasance Provisions............................................................81
Section 3.10. Realization Upon Mortgage Loans.................................................................83
Section 3.11. Trustee to Cooperate; Release of Mortgage Files.................................................88
Section 3.12. Servicing Compensation and Trustee Fees.........................................................88
Section 3.13. Reports to the Trustee; Collection Account Statements...........................................91
Section 3.14. Annual Statement as to Compliance...............................................................91
Section 3.15. Annual Independent Public Accountants'Servicing Report..........................................92
Section 3.16. Access to Certain Documentation.................................................................92
Section 3.17. Title and Management of REO Properties..........................................................93
Section 3.18. Sale of Specially Serviced Mortgage Loans and REO Properties....................................96
Section 3.19. Inspections; Asset Status Report................................................................98
Section 3.20. Available Information and Notices..............................................................100
Section 3.21. Reserve Accounts...............................................................................101
Section 3.22. Property Advances..............................................................................102
Section 3.23. Appointment of Special Servicer................................................................102
Section 3.24. Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping.............103
Section 3.25. Adjustment of Servicing Compensation in Respect of Prepayment Interest Shortfalls..............104
ARTICLE IV. DISTRIBUTIONS TO CERTIFICATEHOLDERS................................................................105
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Section 4.1. Distributions..................................................................................105
Section 4.2. Statements to Rating Agencies and Certificateholders; Available Information; Information
Furnished to Financial Market Publisher........................................................127
Section 4.3. Compliance with Withholding Requirements.......................................................130
Section 4.4. REMIC Compliance...............................................................................130
Section 4.5. Imposition of Tax on the Trust Fund............................................................132
Section 4.6. Remittances; P&I Advances......................................................................133
Section 4.7. Appraisal Reductions...........................................................................135
ARTICLE V. THE CERTIFICATES....................................................................................136
Section 5.1. The Certificates...............................................................................136
Section 5.2. Registration, Transfer and Exchange of Certificates............................................137
Section 5.3. Book-Entry Certificates........................................................................142
Section 5.4. Mutilated, Destroyed, Lost or Stolen Certificates..............................................143
Section 5.5. Appointment of Paying Agent....................................................................144
Section 5.6. Access to Certificateholders'Names and Addresses...............................................144
Section 5.7. Actions of Certificateholders..................................................................144
Section 5.8. Purchase Option of Class O Certificateholders and the Special Servicer.........................145
ARTICLE VI. THE DEPOSITOR, THE SERVICER AND THE SPECIAL
SERVICER.......................................................................................145
Section 6.1. Liability of the Depositor, the Master Servicer and the Special Servicer.......................145
Section 6.2. Merger or Consolidation of the Master Servicer and Special Servicer............................146
Section 6.3. Limitation on Liability of the Depositor, the Master Servicer and Others.......................146
Section 6.4. Limitation on Resignation of the Master Servicer and of the Special Servicer...................147
Section 6.5. Rights of the Depositor and the Trustee in Respect of the Master Servicer and the
Special Servicer...............................................................................148
ARTICLE VII DEFAULT............................................................................................149
Section 7.1. Events of Default..............................................................................149
Section 7.2. Trustee to Act; Appointment of Successor.......................................................151
Section 7.3. Notification to Certificateholders.............................................................152
Section 7.4. Other Remedies of Trustee......................................................................152
Section 7.5. Waiver of Past Events of Default; Termination..................................................153
ARTICLE VIII. CONCERNING THE TRUSTEE...........................................................................153
Section 8.1. Duties of Trustee..............................................................................153
Section 8.2. Certain Matters Affecting the Trustee..........................................................155
Section 8.3. Trustee Not Liable for Certificates or Mortgage Loans..........................................156
Section 8.4. Trustee May Own Certificates...................................................................158
Section 8.5. Payment of Trustee's Fees and Expenses; Indemnification........................................158
Section 8.6. Eligibility Requirements for Trustee...........................................................160
Section 8.7. Resignation and Removal of the Trustee.........................................................160
Section 8.8. Successor Trustee..............................................................................161
Section 8.9. Merger or Consolidation of Trustee.............................................................161
Section 8.10. Appointment of Co-Trustee or Separate Trustee..................................................162
Section 8.11. Authenticating Agent...........................................................................163
Section 8.12. Appointment of Custodians......................................................................164
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ARTICLE IX. TERMINATION........................................................................................164
Section 9.1. Termination....................................................................................164
Section 9.2. Additional Termination Requirements............................................................167
ARTICLE X. MISCELLANEOUS PROVISIONS............................................................................168
Section 10.1. Counterparts...................................................................................168
Section 10.2. Limitation on Rights of Certificateholders.....................................................168
Section 10.3. Governing Law..................................................................................169
Section 10.4. Notices........................................................................................169
Section 10.5. Severability of Provisions.....................................................................172
Section 10.6. Notice to the Depositor and Each Rating Agency.................................................172
Section 10.7. Amendment......................................................................................173
Section 10.8. Confirmation of Intent.........................................................................175
</TABLE>
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EXHIBITS
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-EC1 Certificate
Exhibit A-4 Form of Class A-EC2 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 B Mortgage Loan Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D Form of Investment Representation Letters
Exhibit E Form of Request for Release
Exhibit F Intentionally Omitted
Exhibit G-1 Form of Mortgage Loan Purchase and Sale Agreement I
Exhibit G-2 Form of Mortgage Loan Purchase and Sale Agreement II
Exhibit H Intentionally Omitted
Exhibit I Form of Statement to the Certificateholders
Exhibit J Form of Comparative Financial Status Report
Exhibit K Form of Delinquent Loan Status Report
Exhibit L Form of Historical Loan Modification Report
Exhibit M Form of Historical Loss Estimate Report
Exhibit N Form of REO Status Report
Exhibit O Form of Watch List Report
Exhibit P Form of Operating Statement Analysis Report
Exhibit Q Form of NOI Adjustment Worksheet
Exhibit R Interest Reserve Loans
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Pooling and Servicing Agreement, dated as of July 1, 1999 among Prudential
Securities Secured Financing Corporation, as Depositor, National Realty Funding
L.C., as Master Servicer, National Realty Funding L.C., as Special Servicer and
The Chase Manhattan Bank, as Trustee and Custodian.
PRELIMINARY STATEMENT
Terms used but not defined in this Preliminary Statement shall have the
meanings specified in Article I hereof.
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple classes which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund consisting primarily of the
Mortgage Loans. As provided herein, the Trustee will elect that the Trust Fund
be treated for federal income tax purposes as three separate real estate
mortgage investment conduits (each a "REMIC" or, in the alternative, the
"Lower-Tier REMIC," the "Middle-Tier REMIC" and the "Upper-Tier REMIC,"
respectively). The Class A-1, Class A-2, Class A-EC1, Class A-EC2, 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 constitute "regular interests" in the
Upper-Tier REMIC and the Class R-I Certificates are the sole Class of "residual
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions. The
Class R-II Certificates are the sole Class of "residual interest" in the
Middle-Tier REMIC for purposes of the REMIC Provisions. There are sixteen
classes of uncertificated Middle-Tier Regular Interests issued under this
Agreement (Classes A-1-M, A-2-M, M-IO, B-M, C-M, D-M, E-M, F-M, G-M, H-M, J-M,
K-M, L-M, M-M, N-M and O-M), each of which will constitute a regular interest in
the Middle-Tier REMIC. The Class R-III Certificates are the sole Class of
"residual interest" in the Lower-Tier REMIC for purposes of the REMIC
Provisions. There are also fifteen classes of uncertificated Lower-Tier Regular
Interests issued under this Agreement (the Class A-1-L, Class A-2-L, Class B-L,
Class C-L, Class D-L, Class E-L, Class F-L, Class G-L, Class H-L, Class J-L,
Class K-L, Class L-L, Class M-L, Class N-L, and Class O-L Interests), each of
which will constitute a regular interest in the Lower-Tier REMIC. All such
Middle-Tier Regular Interests will be held by the Trustee as assets of the
Upper-Tier REMIC, and all such Lower-Tier Regular Interests will be held by the
Trustee as assets of the Middle-Tier REMIC.
The following table sets forth the designation and aggregate
initial Certificate Balance (or, with respect to the Class A-EC1 and Class A-EC2
Certificates, the Class Notional Balance) for each Class of Certificates
comprising interests in the Upper-Tier REMIC:
Certificate Balance or
Class Notional Balance
----- ----------------
Class A-1 $229,000,000
Class A-2 396,880,000
Class A-EC1(1) 869,289,765
Class A-EC2(1) 97,798,765
Class B 41,293,000
Class C 45,639,000
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Class D 13,040,000
Class E 30,426,000
Class F 15,213,000
Class G 15,213,000
Class H 19,559,000
Class J 6,520,000
Class K 6,520,000
Class L 17,386,000
Class M 4,347,000
Class N 8,693,000
Class O 19,560,765
(1) The Class A-EC1 Certificates and the Class A-EC2 Certificates are
interest-only certificates and accordingly will not receive principal
distributions. The Class A-EC1 Certificates have an initial Class A-EC1
Notional Balance in the amount indicated. The Class A-EC2 Certificates have
an initial Class A-EC2 Notional Balance in the amount indicated.
The initial Certificate Balance of each of the Class R-I, Class R-II and
Class R-III Certificates will be zero. The Certificate Balance of any Class of
Certificates outstanding at any time represents the maximum amount which holders
thereof are entitled to receive as distributions allocable to principal from the
cash flow on the Mortgage Loans and the other assets in the Trust Fund.
As of the Cut-off Date, the Mortgage Loans have an aggregate Scheduled
Principal Balance equal to $869,289,765.
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Special Servicer and the Trustee agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": The sum for all Mortgage Loans as to which any
Advance remains unreimbursed of interest at the related Advance Rate on the
amount of any Advances for which the Master Servicer or the Trustee, as
applicable, has not been paid or reimbursed for the number of days from the date
on which such Advance was made or, if interest has been previously paid on such
Advance, from the date on which interest was last paid, through the date of
payment or reimbursement of the related Advance (which in no event shall be
later than the Determination Date following the date on which funds are
available to reimburse such Advance with interest thereon at the Advance Rate).
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"Advance Rate": A per annum rate equal to the Prime Rate (as published in
The Wall Street Journal, or, if The Wall Street Journal is no longer published,
The New York Times, from time to time).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled by" have meanings correlative to the foregoing. The Trustee may
obtain and rely on an Officer's Certificate of the Master Servicer, the Special
Servicer or the Depositor to determine whether any Person is an Affiliate of
such party.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Annual Debt Service": For any Mortgage Loan, the current annual debt
service (including interest allocable to payment of the Servicing Fee) payable
with respect to such Mortgage Loan during the 12-month period commencing on the
Cut-off Date (assuming no principal prepayments occur).
"Anticipated Repayment Date": The date specified in the definition of ARD
Loan after which the interest rate on an ARD Loan will increase.
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.1(c),
9.1 (d) or 9.1 (e).
"Applicable Monthly Payment": As defined in Section 4.6(a).
"Applicant": As defined in Section 5.6(a).
"Appraisal": An appraisal prepared by an Independent state certified
appraiser in compliance with the Code of Professional Ethics and Standards of
Professional Conduct of the Appraisal Institute and the Uniform Standards of
Professional Practice as adopted by the Appraisal Standards Board of the
Appraisal Foundation and accepted and incorporated into FIRREA.
"Appraisal Reduction": For any Distribution Date and for any Mortgage Loan
as to which an Appraisal Reduction Event has occurred, an amount equal to the
excess, if any, of (a) the outstanding Scheduled Principal Balance of such
Mortgage Loan over (b) the excess of (i) 90% of the Appraised Value of the
related Mortgaged Property as determined (A) by one or more Appraisals with
respect to any Mortgage Loan with an outstanding Scheduled Principal Balance
equal to or in excess of $2,000,000 (the costs of which shall be paid by the
Master Servicer or, if required by Section 3.22(b), the Trustee, as applicable,
as a Property Advance), and (B) by an Appraisal or an internal valuation
performed by the Special Servicer with respect to any Mortgage Loan with an
outstanding Scheduled Principal Balance less than $2,000,000, over (ii) the sum
of, as of the Due Date occurring in the month of such Distribution Date, (A) to
the extent
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not previously advanced by the Master Servicer or the Trustee, as applicable,
all unpaid interest on such Mortgage Loan at a per annum rate equal to its
Mortgage Rate, (B) all unreimbursed Advances and interest thereon at the Advance
Rate, and (C) all currently due and unpaid real estate taxes, assessments,
insurance premiums and ground rents and all other amounts due and unpaid with
respect to such Mortgage Loan, net of any amounts currently escrowed for such
amounts (which taxes, premiums, ground rents and other amounts have not been
subject to an Advance by the Master Servicer or the Trustee, as applicable, or
for which funds have not been escrowed); provided, however, that without
limiting the Special Servicer's obligation to order and obtain such Appraisal,
if the Special Servicer has not obtained the Appraisal or internal valuation
referred to in clause (b)(i)(A) or (b)(i)(B) above by the date of the Appraisal
Reduction Event, then the amount of the Appraisal Reduction shall be deemed to
be an amount equal to 35% of the outstanding Scheduled Principal Balance of the
related Mortgage Loan until the first Determination Date after receipt of the
Appraisal. By the date of the Appraisal Reduction Event, the Special Servicer
shall order and receive an Appraisal or internal valuation (the cost of which
shall be paid as a Property Advance by the Master Servicer or, if required by
Section 3.22(b), the Trustee), which Appraisal or internal valuation shall be
delivered by the Special Servicer to the Master Servicer, and the Master
Servicer shall deliver such Appraisal or internal valuation to the Trustee, who
shall deliver such Appraisal to the Paying Agent and each Holder of a Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificate within 15 days of receipt by the Master Servicer of such Appraisal
from the Special Servicer. Notwithstanding the foregoing, the Special Servicer
shall not be required to obtain an Appraisal or perform an internal valuation,
as the case may be, with respect to a Mortgage Loan which is the subject of an
Appraisal Reduction Event if the Special Servicer has obtained an Appraisal with
respect to the related Mortgaged Property within the 12-month period immediately
prior to the occurrence of such Appraisal Reduction Event. Instead, the Special
Servicer may use such prior Appraisal in calculating any Appraisal Reduction
with respect to such Mortgage Loan.
On the first Determination Date occurring on or after the receipt by
Special Servicer of an Appraisal or internal valuation obtained in connection
with the foregoing paragraph, the Special Servicer will calculate and report to
the Master Servicer, and the Master Servicer will report to the Trustee on or
prior to the third Business Day prior to the related Distribution Date, the
Appraisal Reduction to take into account such Appraisal.
Appraisal Reductions will be determined based on the Appraisals or internal
valuations described above. Notwithstanding the foregoing, the Directing
Certificateholder shall have the right, at any time within six months of the
date of its receipt of any Appraisal or internal valuation of any Mortgaged
Property required to be obtained pursuant to the immediately preceding
paragraph, to require that the Special Servicer obtain a new Appraisal of such
Mortgaged Property in accordance with FIRREA standards from a state certified
appraiser chosen by the Special Servicer, the cost of which shall be paid by the
Controlling Class Certificateholders without right of reimbursement; provided,
however, that the Special Servicer shall not be required to obtain any such
Appraisal unless the Special Servicer shall have received reasonable assurance
of payment of the costs of such appraisal and of any expenses related thereto.
Upon receipt of the Appraisal obtained pursuant to the immediately preceding
sentence, the Special Servicer shall redetermine and report in writing to the
Servicer, the Trustee and the Directing Certificateholder the amount of the
Appraisal Reduction with respect to such Mortgage
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Loan, and such redetermined Appraisal Reduction shall replace the prior
Appraisal Reduction with respect to such Mortgage Loan.
With respect to each Mortgage Loan as to which an Appraisal Reduction Event
has occurred and which has remained current for twelve consecutive Monthly
Payments (for such purposes taking into account any amendment or modification of
such Mortgage Loan), and with respect to which no other Appraisal Reduction
Event has occurred and is continuing, the Special Servicer may within 30 days
before the date of such twelfth Monthly Payment, order an Appraisal (which may
be an update of a prior Appraisal) or, with respect to any Mortgage Loan with an
outstanding Scheduled Principal Balance less than $2,000,000, perform an
internal valuation or obtain an Appraisal (which may be an update of a prior
Appraisal), the cost of which shall be paid by the Master Servicer or, if
required by Section 3.22(b), the Trustee as a Property Advance recoverable from
the Trust Fund. Based upon such Appraisal or internal valuation, the Special
Servicer shall redetermine and report to the Trustee the amount of the Appraisal
Reduction with respect to such Mortgage Loan, and such redetermined Appraisal
Reduction shall replace the prior Appraisal Reduction with respect to such
Mortgage Loan.
Notwithstanding anything herein to the contrary, the aggregate Appraisal
Reduction related to a Mortgage Loan or the related REO Property will be reduced
to zero as of the date such Mortgage Loan is paid in full, liquidated,
repurchased or otherwise removed from the Trust Fund.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) the third anniversary of the date on which the first extension
of the maturity date of such Mortgage Loan becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer pursuant to the terms
hereof, which extension does not decrease the aggregate amount of Monthly
Payments on the Mortgage Loan, (ii) 120 days after an uncured delinquency
(without regard to the application of any grace period) occurs in respect of
such Mortgage Loan, (iii) the date on which a reduction in the amount of Monthly
Payments on such Mortgage Loan, or a change in any other material economic term
of such Mortgage Loan (other than an extension of its maturity date), becomes
effective as a result of a modification of such Mortgage Loan by the Special
Servicer, (iv) 60 days after a receiver has been appointed, (v) 60 days after a
Borrower declares bankruptcy, or an involuntary bankruptcy petition is filed
against a Borrower, or (vi) immediately after a Mortgage Loan becomes an REO
Loan; provided, however, that an Appraisal Reduction Event shall not occur at
any time when the aggregate Certificate Balances of all Classes of Certificates
(other than the Class A-1 Certificates, the Class A-2 Certificates and Class
A-EC1 Certificates) has been reduced to zero. The Special Servicer shall notify
the Master Servicer promptly upon the occurrence of any of the foregoing events.
"Appraised Value": For each of the Mortgaged Properties, the appraised
value of such property as determined by an Appraisal thereof, made not more than
one year prior to the origination date of the related Mortgage Loan.
"ARD Loan": A Mortgage Loan, designated as such on the Mortgage Loan
Schedule, that provides that if not prepaid on or prior to a specified date, (a)
the principal balance thereof will thereafter bear interest at an increased
fixed rate of interest, which increased
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interest will be deferred, and (b) all or a substantial portion of the related
excess cash flow generated from the related Mortgaged Property will be applied
towards the prepayment of such Mortgage Loan.
"Asset Status Report": As defined in Section 3.19.
"Assignment of Leases, Rents and Profits": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Borrower, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered by the Borrower, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of mortgage without recourse,
notice of transfer or equivalent instrument, in recordable form, which is
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the related Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording; provided, however, that none of the Trustee, the Custodian, the
Special Servicer or the Master Servicer shall be responsible for determining
whether any assignment is legally sufficient or in recordable form.
"Assumed Scheduled Payment": With respect to any Mortgage Loan that is
delinquent in respect of its Balloon Payment (including any REO Mortgage Loan as
to which the Balloon Payment would have been past due), an amount equal to the
sum of (a) the principal portion of the Monthly Payment that would have been due
on such Mortgage Loan on a Due Date that falls on or after the date on which
such Balloon Payment was due, based on the original amortization schedule
thereof, assuming such Balloon Payment had not become due, after giving effect
to any modification, and (b) interest at the applicable Net Mortgage Rate on the
principal balance that would have remained on such Mortgage Loan after giving
effect to deemed principal payments pursuant to clause (a) hereof on prior Due
Dates.
"Assumption Fees": Any fees collected by the Master Servicer or the Special
Servicer, as applicable, in connection with an assumption or modification of a
Mortgage Loan or substitution of a Borrower thereunder permitted to be executed
under the provisions of Section 3.1, Section 3.9 or Section 3.10.
"Authenticating Agent": Any authenticating agent appointed by the Trustee
pursuant to Section 8.11.
"Available Funds": For each Distribution Date, the sum of all previously
undistributed Monthly Payments or other receipts on account of principal of and
interest on or in respect of the Mortgage Loans (including Unscheduled Payments
and any Net REO Proceeds transferred from an REO Account to the Collection
Account pursuant to Section 3.17(b)) received by the Master Servicer in the
Collection Period relating to such Distribution Date, plus
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all other amounts received by the Master Servicer during such Collection Period
and required to be placed in the Collection Account by the Master Servicer
pursuant to Section 3.5(a) allocable to such Mortgage Loans, and including all
P&I Advances made by the Master Servicer or the Trustee in respect of such
Distribution Date and deposits made by the Master Servicer pursuant to Section
3.25 with respect to such Distribution Date, but excluding the following:
(a) amounts permitted to be used to reimburse the Master Servicer or the
Trustee for previously unreimbursed Advances and interest thereon as
described in Section 3.6(ii) and (iii);
(b) those portions of each payment of interest that represent the
applicable Servicing Compensation;
(c) all amounts in the nature of late fees, late payment charges and
similar fees, "insufficient funds" check charges, loan modification fees,
extension fees, loan service transaction fees, demand fees, beneficiary
statement charges, Assumption Fees, Financial Lease and Reporting Fees and
similar fees;
(d) all amounts representing scheduled Monthly Payments due after the Due
Date in the related Collection Period (such amounts to be treated as received
on the Due Date when due);
(e) that portion of Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds with respect to a Mortgage Loan which represents any
unpaid Servicing Compensation to which the Master Servicer or the Special
Servicer is entitled;
(f) all amounts representing certain expenses reimbursable to the Master
Servicer, the Special Servicer or the Trustee and other amounts permitted to
be retained by the Master Servicer or the Special Servicer, as applicable or
withdrawn by the Master Servicer from the Collection Account (including,
without limitation, as provided in Section 3.6) pursuant to the terms hereof;
(g) Prepayment Premiums, Yield Maintenance Charges and Excess Interest
received in the related Collection Period;
(h) any interest or investment income on funds on deposit in the Collection
Account or in Permitted Investments in which such fund may be invested; and
(i) Default Interest received in the related Collection Period with respect
to a Mortgage Loan.
"Balloon Loan": Each Mortgage Loan that provides for monthly payments of
principal based on an amortization schedule longer than its remaining term.
"Balloon Payment": With respect to each Balloon Loan, the scheduled payment
of principal and interest due on the Maturity Date of such Mortgage Loan which,
pursuant to the
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related Note, is equal to the entire remaining principal balance of such
Mortgage Loan, plus accrued interest thereon.
"Base Interest Fraction": 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 (i) the Pass-Through Rate on
such Class of Certificates exceeds (ii) the yield rate used in calculating the
Yield Maintenance Charge with respect to such principal prepayment and (b) whose
denominator is the amount, if any, by which the (i) Mortgage Rate on such
Mortgage Loan exceeds (ii) the yield rate used in calculating the Yield
Maintenance Charge with respect to such principal prepayment; provided, however,
that under no circumstances shall the Base Interest Fraction be greater than
one. If such yield rate is greater than or equal to the lesser of (x) the
Mortgage Rate on such Mortgage Loan and (y) the Pass-Through Rate described in
the preceding sentence, then the Base Interest Fraction shall equal zero.
"Borrower": With respect to each Mortgage Loan, any obligor on any related
Note.
"Book-Entry Certificate": Any Certificate registered in the name of the
Securities Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking institutions in the States of New York, Texas or Missouri are authorized
or obligated by law, executive order or governmental decree to be closed.
"Cash Deposit": An amount equal to all cash payments of principal and
interest, Prepayment Premiums and Yield Maintenance Charges received by the
Transferor in respect of the Mortgage Loans prior to or on the Closing Date
which are due after the Cut-off Date, which amount is to be deposited with the
Trustee by the Depositor pursuant to Section 2.1.
"Certificate": Any Class A-1, Class A-2, Class A-EC1, Class A-EC2, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class R-I, Class R-II or Class R-III Certificate
issued, authenticated and delivered hereunder.
"Certificate Balance": With respect to any Class of Regular Certificates
(other than the Class A-EC1 and Class A-EC2 Certificates) (a) on or prior to
the first Distribution Date, an amount equal to the aggregate initial
Certificate Balance of such Class, as specified in the Preliminary Statement
hereto, and (b) as of any date of determination after the first Distribution
Date, the Certificate Balance of such Class of Certificates on the Distribution
Date immediately prior to such date of determination, after application of the
distributions and Realized Losses made thereon on such prior Distribution Date;
with respect to any Middle-Tier Regular Interest (other than the Class M-IO
Interest), (a) on or prior to the first Distribution Date, an amount equal to
the aggregate initial Certificate Balance of the related Class of Certificates
as specified in the Preliminary Statement hereto, and (b) as of any date of
determination after the first Distribution Date, the Certificate Balance of such
Middle-Tier Regular Interest on the Distribution Date immediately prior to such
date of determination, after application of the
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distributions and Realized Losses made thereon on such prior Distribution Date;
and with respect to any Lower-Tier Regular Interest, (a) on or prior to the
first Distribution Date, an amount equal to the Certificate Balance of the
Related Certificates, and (b) as of any date of determination after the first
Distribution Date, the Certificate Balance of such Lower-Tier Regular Interest
on the Distribution Date immediately prior to such date of determination, after
application of distributions in respect of principal and Realized Losses made
thereon on such prior Distribution Date. The Class M-IO Interests and the
Class A-EC1 Certificates and Class A-EC2 Certificates have no Certificate
Balances but instead have Notional Balances.
"Certificate Owner": With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Securities Depository or on the books of a Securities Depository Participant or
on the books of an indirect participating brokerage firm for which a Securities
Depository Participant acts as agent.
"Certificate Register" and "Certificate Registrar": The register maintained
and the registrar appointed pursuant to Section 5.2(a).
"Certificateholder": A Person whose name is registered in the Certificate
Register; provided, however, that any Certificate held or beneficially owned by
the Depositor, the Master Servicer, the Special Servicer, the Trustee, a Manager
or a Borrower or any Person actually known to a Responsible Officer of the
Certificate Registrar to be an Affiliate of any thereof shall be deemed not to
be outstanding and the Voting Rights to which it is entitled shall not be taken
into account in determining whether the requisite percentage of Voting Rights
necessary to effect any consent has been obtained (unless such consent is to an
action which would materially adversely affect in any material respect the
interests of the Certificateholders of any Class, while the Master Servicer or
any Affiliate thereof is the holder of Certificates aggregating not less than
66-2/3% of the Percentage Interest of any such Class). All references herein to
"Holders" or "Certificateholders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Securities Depository
and the Securities Depository Participants, except as otherwise specified
herein.
"Class": With respect to Certificates, Middle-Tier Regular Interests or
Lower-Tier Regular Interests, all of the Certificates, Middle-Tier Regular
Interests or Lower-Tier Regular Interests bearing the same alphabetical and
numerical Class designation.
"Class A-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": A per annum rate equal to 6.955%; provided
that the Class A-1 Pass-Through Rate shall not exceed the Weighted Average Net
Mortgage Rate.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-2 hereto.
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"Class A-2 Pass-Through Rate": A per annum rate equal to 7.193%; provided
that the Class A-2 Pass-Through Rate shall not exceed the Weighted Average Net
Mortgage Rate.
"Class A-EC1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-3 hereto.
"Class A-EC1 Interest Amount": With respect to any Distribution Date, an
amount equal to the sum of (i) the excess of (a) the products of the Middle-Tier
Pass-Through Rates of the Class A-1-M Interest, the Class A-2-M Interest, the
Class B-M Interest, the Class C-M Interest, the Class D-M Interest, the Class
E-M Interest and the Class F-M Interest, and their respective Certificate
Balances over (b) the products of the Pass-Through Rates of the Class A-1, Class
A-2, Class B, Class C, Class D, Class E and Class F Certificates and their
respective Certificate Balances, and (ii) the Class M-IO Interest Amount.
"Class A-EC1 Notional Balance": As of any date of determination, an amount
equal to the sum of the Certificate Balances of the Class A-1 Certificates, the
Class A-2 Certificates, the Class B Certificates, the Class C Certificates, the
Class D Certificates, the Class E Certificates, the Class F Certificates, the
Class G Certificates, the Class H Certificates, the Class J Certificates, the
Class K Certificates, the Class L Certificates, the Class M Certificates, the
Class N Certificates and the Class O Certificates.
"Class A-EC1 Pass-Through Rate": With respect to any Interest Accrual
Period, a per annum rate equal to the rate that, when multiplied by the
Class A-EC1 Notional Balance, equals the Class A-EC1 Interest Amount.
"Class A-EC2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-4 hereto.
"Class A-EC2 Interest Amount": With respect to any Distribution Date, an
amount equal to the Class A-EC2 Pass-Through Rate multiplied by the Class A-EC2
Notional Balance. The Class A-EC2 Interest Amount represents a portion of the
interest payments on the Class G-M, Class H-M, Class J-M, Class K-M, Class L-M,
Class M-M, Class N-M and Class O-M Interests, and is equal to the excess, if
any, of the amount of interest distributable in respect of such Classes pursuant
to Section 4.1(b)(I)(i) hereof, over the sum of the Pass-Through Rates of the
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificates multiplied by their respective Certificate Balances.
"Class A-EC2 Notional Balance": As of any date of determination, an amount
equal to the sum of the Certificate Balances of the Class G Certificates, the
Class H Certificates,
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the Class J Certificates, the Class K Certificates, the Class L Certificates,
the Class M Certificates, the Class N Certificates and the Class O Certificates.
"Class A-EC2 Pass-Through Rate": With respect to any Interest Accrual
Period, a per annum rate equal to the excess of (i) the weighted average of the
Middle-Tier Pass-Through Rates of the Class G-M, Class H-M, Class J-M, Class
K-M, Class L-M, Class M-M, Class N-M, and Class O-M Interests, weighted on the
basis of their respective Certificate Balances, over (ii) the weighted average
of the Pass-Through Rates of the Class G, Class H, Class J, Class K, Class L,
Class M Certificates, Class N Certificates and Class O Certificates, weighted on
the basis of their respective principal balances.
"Class A-1-L Interest": A regular interest in the Lower-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.1.
"Class A-2-L Interest": A regular interest in the Lower-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.1.
"Class A-1-M Interest": A regular interest in the Middle-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.1.
"Class A-2-M Interest": A regular interest in the Middle-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.1.
"Class B Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-5 hereto.
"Class B Pass-Through Rate": A per annum rate equal to the Weighted Average
Net Mortgage Rate (i.e., for the first Interest Accrual Period, 7.741% per
annum), less 0.223%.
"Class B-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class B-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class C Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-6 hereto.
"Class C Pass-Through Rate": A per annum rate equal to the Weighted Average
Net Mortgage Rate (i.e., for the first Interest Accrual Period, 7.741% per
annum), less 0.026%.
"Class C-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
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"Class C-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class D Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-7 hereto.
"Class D Pass-Through Rate": A per annum rate equal to the Weighted Average
Net Mortgage Rate (i.e., for the first Interest Accrual Period, 7.741% per
annum).
"Class D-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class D-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class E Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-8 hereto.
"Class E Pass-Through Rate": A per annum rate equal to the Weighted Average
Net Mortgage Rate (i.e., for the first Interest Accrual Period, 7.741% per
annum).
"Class E-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class E-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class F Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-9 hereto.
"Class F Pass-Through Rate": A per annum rate equal to the Weighted Average
Net Mortgage Rate (i.e., for the first Interest Accrual Period, 7.741% per
annum).
"Class F-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class F-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class G Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-10 hereto.
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"Class G Pass-Through Rate": With respect to any Interest Accrual Period, a
per annum rate equal to 6.755%; provided that the Class G Pass-Through Rate
shall not exceed the Weighted Average Net Mortgage Rate.
"Class G-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class G-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class H Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-11 hereto.
"Class H Pass-Through Rate": With respect to any Interest Accrual Period, a
per annum rate equal to 6.755%; provided that the Class H Pass-Through Rate
shall not exceed the Weighted Average Net Mortgage Rate.
"Class H-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class H-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class Interest Distribution Amount": With respect to any Distribution Date
and any of the Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificates, interest for the related Interest Accrual Period at the applicable
Pass-Through Rate for such Class of Certificates on the Certificate Balance of
such Class. With respect to any Distribution Date and the Class A-EC1
Certificates, the Class A-EC1 Interest Amount. With respect to any Distribution
Date and the Class A-EC2 Certificates, the Class A-EC2 Interest Amount. For
purposes of determining any Class Interest Distribution Amount, any
distributions in reduction of Certificate Balance, any reductions of Certificate
Balance (and any resulting reductions in Notional Balance) as a result of
allocations of Appraisal Reductions and Realized Losses on the Distribution Date
occurring in such Interest Accrual Period shall be deemed to have been made as
of the first day of such Interest Accrual Period. Notwithstanding the foregoing,
the Class Interest Distribution Amount for each Class of Certificates otherwise
calculated as described above shall be reduced by such Class' pro rata share of
any Uncovered Prepayment Interest Shortfall for such Distribution Date (pro rata
according to each respective Class' Class Interest Distribution Amount
determined without regard to this sentence).
"Class Interest Shortfall": On any Distribution Date for any Class of
Certificates, the excess, if any, of the Class Interest Distribution Amount for
such Class over the amount of interest actually distributed in respect of such
Class Interest Distribution Amount to the Holders of such Certificates pursuant
to Section 4.1(c) on such Distribution Date.
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"Class J Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-12 hereto.
"Class J Pass-Through Rate": With respect to any Interest Accrual Period, a
per annum rate equal to 6.755%; provided that the Class J Pass-Through Rate
shall not exceed the Weighted Average Net Mortgage Rate.
"Class J-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class J-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class K Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-13 hereto.
"Class K Pass-Through Rate": With respect to any Interest Accrual Period, a
per annum rate equal to 6.755%; provided that the Class K Pass-Through Rate
shall not exceed the Weighted Average Net Mortgage Rate.
"Class K-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class K-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class L Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-14 hereto.
"Class L Pass-Through Rate": With respect to any Interest Accrual Period, a
per annum rate equal to 6.755%; provided that the Class L Pass-Through Rate
shall not exceed the Weighted Average Net Mortgage Rate.
"Class L-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class L-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class M Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-15 hereto.
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"Class M-IO Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class M-IO Interest Amount": With respect to any Distribution Date, an
amount equal to the excess, if any, of the interest at the Lower-Tier
Pass-Through Rate on each of the Class G-L, Class H-L, Class J-L, Class K-L,
Class L-L, Class M-L, Class N-L and Class O-L Interests' Certificate Balances
over the sum of the products of the Middle-Tier Pass-Through Rates for each of
the Class G-M, Class H-M, Class J-M, Class K-M, Class L-M, Class M-M, Class N-M
and Class O-M Interests' and their respective Certificate Balances.
"Class M-IO Notional Balance": As of any date of determination, an amount
equal to the sum of the Certificate Balances of the Class G-L, Class H-L, Class
J-L, Class K-L, Class L-L, Class M-L, Class N-L and Class O-L Interests (which
amounts correspond the Certificate Balances of the Class G, Class H, Class J,
Class K, Class L, Class M, Class N and Class O Certificates on such date of
determination).
"Class M Pass-Through Rate": With respect to any Interest Accrual Period, a
per annum rate equal to 6.755%; provided that the Class M Pass-Through Rate
shall not exceed the Weighted Average Net Mortgage Rate.
"Class M-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class M-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class N Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-16 hereto.
"Class N Pass-Through Rate": With respect to any Interest Accrual Period, a
per annum rate equal to 6.755%; provided that the Class G Pass-Through Rate
shall not exceed the Weighted Average Net Mortgage Rate.
"Class N-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class N-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class O Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-17 hereto.
"Class O Pass-Through Rate": With respect to any Interest Accrual Period, a
per annum rate equal to 6.755%; provided that the Class O Pass-Through Rate
shall not exceed the Weighted Average Net Mortgage Rate.
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"Class O-M Interest": A regular interest in the Middle-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.1.
"Class R-I Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent on behalf of the Depositor in substantially
the form set forth in Exhibit A-18 hereto. The Class R-I Certificates have no
Pass-Through Rate or Certificate Balance.
"Class R-II Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent on behalf of the Depositor in substantially
the form set forth in Exhibit A-19 hereto. The Class R-II Certificates have no
Pass-Through Rate or Certificate Balance.
"Class R-III Certificate": Any Certificate executed and authenticated by
the Trustee or the Authenticating Agent on behalf of the Depositor in
substantially the form set forth in Exhibit A-20 hereto. The Class R-III
Certificates have no Pass-Through Rate or Certificate Balance.
"Closing Date": On or about July 28, 1999.
"Code": The Internal Revenue Code of 1986, as amended from time to time,
any successor statute thereto, and any temporary or final regulations of the
United States Department of the Treasury promulgated pursuant thereto.
"Collection Account": The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.5(a), which shall be
entitled "The Chase Manhattan Bank, as Trustee, in trust for Holders of
Prudential Securities Secured Financing Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, Collection Account" and which shall
be an Eligible Account.
"Collection Period": With respect to any Distribution Date and any Mortgage
Loan, the period beginning on the first day following the Determination Date in
the month preceding the month in which such Distribution Date occurs (or, in the
case of the Distribution Date occurring in August 1999, on the day after the
Cut-off Date) and ending on the Determination Date in the month in which such
Distribution Date occurs.
"Commission": The Securities and Exchange Commission of the United States
of America.
"Condemnation Proceeds": Any amount (other than Insurance Proceeds)
received in connection with the taking of a Mortgaged Property by exercise of
the power of eminent domain or condemnation.
"Controlling Class": As of any date of determination, the most subordinate
Class of Regular Certificates then outstanding that then has an aggregate
Certificate Balance at least equal to (a) 25% of the initial Certificate Balance
of such Class, in the case of the Class O Certificates, or (b) 50% of the
initial Certificate Balance of such Class, in the case of any other
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Class of Subordinated Certificates, or (c) if no such Class exists, the most
subordinate Class then outstanding. As of the Closing Date, the Controlling
Class will be the Class O Certificates.
"Controlling Class Certificateholders": Each Holder (or Certificate Owner,
if applicable) of a Certificate of the Controlling Class as certified by the
Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Corporate Trust Office" The principal office of the Trustee located at 450
W. 33rd Street, 14th Floor, New York, NY 10001-2697, Attention: Capital Markets
Fiduciary Services (CMBS), or the principal trust office of any successor
trustee qualified and appointed pursuant to Section 8.8.
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that has
become current and remained current (through workout by the Special Servicer or
otherwise) for three consecutive Monthly Payments (for such purposes taking into
account any modification or amendment of such Mortgage Loan) and (provided that
no additional default is foreseeable in the reasonable judgment of the Special
Servicer) as to which the Special Servicer has returned servicing of such
Mortgage Loan to the Master Servicer pursuant to Section 3.24.
"Custodian": Any Custodian appointed pursuant to Section 8.12. The
Custodian may (but need not) be the Trustee or the Master Servicer or any
Affiliate of the Trustee or the Master Servicer, but may not be the Depositor or
any Affiliate of the Depositor. The Custodian will initially be The Chase
Manhattan Bank.
"Cut-off Date": July 1, 1999.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, (a) the
Underwritten Cash Flow for the related Mortgaged Property, divided by (b) the
Annual Debt Service for such Mortgage Loan.
"Default Interest": With respect to any Mortgage Loan, interest accrued on
such Mortgage Loan at the excess of the Default Rate over the Mortgage Rate.
"Default Rate": With respect to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan following any event of default on
such Mortgage Loan, including a default in the payment of a Monthly Payment or a
Balloon Payment, as such rate is set forth in the Mortgage Loan Schedule.
"Definitive Certificate": As defined in Section 5.3(a).
"Depositor": Prudential Securities Secured Financing Corporation, a
Delaware corporation, and its successors and assigns.
"Determination Date": The 11th day of any month, or if such 11th day is not
a Business Day, the Business Day immediately following such 11th day, commencing
on August 11, 1999.
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"Directing Certificateholder": The Controlling Class Certificateholder
selected by the Holders of more than 50% of the Percentage Interests in the
Controlling Class, by Certificate Balance, as certified by the Certificate
Registrar from time to time; provided, however, that (i) absent such selection,
(ii) until a Directing Certificateholder is so selected or (iii) upon receipt by
the Trustee of a notice from the Holders of more than 50% of the Percentage
Interests in the Controlling Class, by Certificate Balance, that a Directing
Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Balance of the
Controlling Class will be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not customarily provided
to tenants in connection with the rental of space for occupancy only within the
meaning of Treasury Regulations Section 1.512(h)-1(c)(5), the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers or any use of such REO Property in a trade or business
conducted by the Trust Fund other than through an Independent Contractor;
provided, however, that the Master Servicer, on behalf of the Trust Fund (or the
Special Servicer on behalf of the Trust Fund), shall not be considered to
Directly Operate an REO Property solely because the Master Servicer, on behalf
of the Trust Fund (or the Special Servicer on behalf of the Trust Fund),
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such REO Property.
"Disposition Fee": With respect to any Specially Serviced Mortgage Loan or
REO Property which is sold or transferred or otherwise liquidated, an amount
equal to the product of (i) the excess, if any of (a) the Liquidation Proceeds
of such Specially Serviced Mortgage Loan or REO Property minus (b) any broker's
commission and related brokerage referral fees, times (ii) 1.0%.
"Disqualified Non-U.S. Person": With respect to a Class R-I, Class R-II or
Class R-III Certificate, any Non-U.S. Person or agent thereof other than (i) a
Non-U.S. Person that holds the Class R-I, Class R-II or Class R-III Certificate
in connection with the conduct of a trade or business within the United States
and has furnished the transferor and the Certificate Registrar with an effective
IRS Form 4224 or (ii) a Non-U.S. Person that has delivered to both the
transferor and the Certificate Registrar an Opinion of Counsel to the effect
that the transfer of the Class R-I, Class R-II or Class R-III Certificate to it
is in accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of the Class R-I, Class R-II or
Class R-III Certificate will not be disregarded for federal income tax purposes.
"Disqualified Organization": Either (a) the United States, a State or any
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and a majority
of its board of directors is not selected by any such governmental unit), (b) a
foreign government, International Organization or agency or instrumentality of
either of the foregoing, (c) an organization that is exempt from tax imposed by
Chapter 1 of the Code (including the tax imposed by Code Section 511 on
unrelated business taxable income) on any excess inclusions (as defined in Code
Section 860E(c)(1)) with respect to the Class R-I or Class
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R-II Certificates (except certain farmers' cooperatives described in Code
Section 521), (d) rural electric and telephone cooperatives described in Code
Section 1381(a)(2), or (e) any other Person so designated by the Certificate
Registrar based upon an Opinion of Counsel to the effect that any Transfer to
such Person may cause the Upper-Tier REMIC, Middle-Tier REMIC or Lower-Tier
REMIC to fail to qualify as a REMIC at any time that the Certificates are
outstanding. The terms "United States," "State" and "International Organization"
shall have the meanings set forth in Code Section 7701 or successor provisions.
"Distribution Account": The segregated account or accounts created and
maintained as a separate trust account or accounts by the Trustee pursuant to
Section 3.5(c), which shall be entitled "[Name of Trustee], as Trustee, in trust
for Holders of Prudential Securities Secured Financing Corporation Commercial
Mortgage Pass-Through Certificates, Series 1999-C2 Distribution Account" and
which shall be an Eligible Account.
"Distribution Date": Subject to the following proviso, the 15th day of any
month, or if such 15th day is not a Business Day, the Business Day immediately
following such 15th day; provided, however, that no Distribution Date will fall
on a date that is fewer than four Business Days after the related Determination
Date, commencing in August 1999.
"Due Date": With respect to any Collection Period, the first day of the
month on which scheduled payments are due on any Mortgage Loan (without regard
to grace periods).
"Early Termination Notice Date": Any date as of which the aggregate
Scheduled Principal Balance of the Mortgage Loans remaining in the Trust Fund is
less than 1.0% of the aggregate Scheduled Principal Balance of the Mortgage
Loans as of the Cut-off Date.
"Eligible Account": Either (i) a segregated account or accounts maintained
with a federally or state-chartered depository institution or trust company, (a)
with respect to accounts in which deposits in excess of 30 days are to be made,
the long term unsecured debt obligations of which (or of such institution's
parent holding company) are assigned a rating by each Rating Agency that is
greater than or equal to the greater of the rating then assigned to the Class of
Certificates outstanding at the time of any deposit therein which has the
highest rating then assigned of any such outstanding Class and AA- by S&P and
Aa2 by Moody's, and (b) with respect to accounts in which deposits of less than
or equal to 30 days are to be made, the short term unsecured debt obligations of
which (or of such institution's parent holding company) are assigned a rating by
each Rating Agency that is greater than or equal to A-1+ by S&P and P-1 by
Moody's, or (ii) a segregated trust account or accounts maintained with a
federally or state-chartered depository institution or trust company acting in
its fiduciary capacity, having, in either case, a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal or
state authority and subject to regulations regarding fiduciary funds on deposit
substantially similar to 12 CFR 9.10(b), or otherwise confirmed in writing by
each of the Rating Agencies that the maintenance of such account, which may be
an account maintained with the Trustee or the Master Servicer, shall not, in and
of itself, result in a downgrading, withdrawal or qualification of the rating
then assigned by such Rating Agency to any Class of Certificates. Eligible
Accounts may bear interest.
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"Eligible Investor": (i) A Qualified Institutional Buyer that is purchasing
Privately Placed Certificates for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the offer, sale or
transfer is being made in reliance on Rule 144A promulgated under the 1933 Act
or (ii) with respect to Privately Placed Certificates other than the Class R-I,
Class R-II and Class R-III Certificates, an Institutional Accredited Investor.
"Environmental Report": With respect to each Mortgaged Property, the
environmental site assessment, environmental transaction screen assessment or
similar study or report delivered in connection with the purchase of the related
Mortgage Loan from the Mortgage Loan Seller of such Mortgage Loan.
"ERISA": The Employee Retirement Income Security Act of 1974, as it may be
amended from time to time, and any successor statute thereto.
"Escrow Account": As defined in Section 3.4(b).
"Escrow Payment": Any payment made by any Borrower to the Master Servicer
for the account of such Borrower for application toward the payment of taxes,
insurance premiums, assessments and similar items in respect of the related
Mortgaged Property and the payment of the Financial and Lease Reporting Fee.
"Event of Default": As defined in Section 7.1.
"Excess Interest": With respect to each ARD Loan, interest accrued at the
excess of the related Revised Rate over the related Mortgage Rate, and interest
thereon at the Revised Rate, if any, except where limited by applicable law.
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any successor
thereto.
"Final Recovery Determination": With respect to any REO Mortgage Loan,
Specially Serviced Mortgage Loan or Mortgage Loan subject to repurchase pursuant
to Section 2.3(d) or 2.3(e), the recovery of all Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, the related Repurchase Price and
other payments or recoveries (including proceeds of the final sale of any
related REO Property) which the Master Servicer, in its reasonable judgment as
evidenced by a certificate of a Servicing Officer delivered to the Trustee and
the Custodian, expects to be finally recoverable. The Master Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination until the earlier of (i) its termination as Master Servicer
hereunder and the transfer of such records to a successor master servicer and
(ii) five years following the termination of the Trust Fund.
"Financial and Lease Reporting Fee": Any payment made by any Borrower under
the related Note as a deposit to ensure that such Borrower furnishes to the
mortgagee the required financial and leasing information on a timely basis
during the term of the related Mortgage Loan.
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"Financial Market Publisher": Bloomberg Financial Service.
"FIRREA": The Financial Institutions Reform, Recovery and Enforcement Act,
as amended from time to time, and any successor statute thereto.
"FNMA": The Federal National Mortgage Association, or any successor
thereto.
"Grantor Trust Assets": As defined in Section 2.2 hereof.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum
and petroleum products, urea formaldehyde and any substances classified as being
"in inventory", "usable work in process" or similar classification which would,
if classified as unusable, be included in the foregoing definition.
"Holder": With respect to any Certificate, a Certificateholder; with
respect to any Middle-Tier Regular Interest or Lower-Tier Regular Interest, the
Trustee.
"Indemnified Party": As defined in Section 8.5(c).
"Independent": When used with respect to any specified Person, any other
Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Manager, the Depositor, the Master
Servicer, the Special Servicer, the Trustee, any Borrower or any Affiliate
thereof, and (ii) is not connected with any such specified Person as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except that the Master Servicer shall not be considered to be an
Independent Contractor under the definition in this clause (i) unless an Opinion
of Counsel (obtained at the expense of the Master Servicer) addressed to the
Master Servicer and the Trustee has been delivered to the Trustee to the effect
that the Master Servicer meets the requirements of such definition) or (ii) any
other Person (including the Master Servicer) if the Master Servicer, on behalf
of itself and the Trustee, has received an Opinion of Counsel (obtained at the
expense of the party seeking to be deemed an Independent Contractor) 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
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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 with respect of such REO Property to fail to qualify as Rents
from Real Property (provided that such income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully registered
form without interest coupons.
"Institutional Accredited Investor": An entity meeting the requirements of
Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the 1933 Act
and which is not otherwise a Qualified Institutional Buyer.
"Insurance Proceeds": Proceeds of any fire and hazard insurance policy,
title policy or other insurance policy relating to a Mortgage Loan or the
Mortgaged Property securing any Mortgage Loan (including any amounts paid by the
Master Servicer or the Special Servicer, as applicable, pursuant to Section
3.8), to the extent such proceeds are not to be applied to the restoration of
the related Mortgaged Property or released to the Borrower in accordance with
the express requirements of the related Mortgage or Note or other documents
including in the related Mortgage File or in accordance with the Servicing
Standard.
"Interest Accrual Period": With respect to any Distribution Date, the
calendar month preceding the month in which such Distribution Date occurs.
Interest for each Interest Accrual Period shall be calculated based on a 360-day
year consisting of twelve 30-day months.
"Interest Distribution Amount": With respect to any Lower-Tier Regular
Interest or any Middle-Tier Regular Interest (other than the Class M-IO
Interest) and any Distribution Date, interest for the related Interest Accrual
Period at the Lower-Tier Pass-Through Rate or Middle-Tier Pass-Through Rate, as
applicable, for such Interest Accrual Period on the Certificate Balance of such
Lower-Tier Regular Interest or Middle-Tier Regular Interest, provided that, for
such purpose, any distributions in reduction of the Certificate Balance and
reductions of the Certificate Balance as a result of allocations of Realized
Losses on the Distribution Date occurring in such Interest Accrual Period shall
be deemed to have been made as of the first day of such Interest Accrual Period.
With respect to the Class M-IO Interest and any Distribution Date, interest in
an amount equal to the Class M-IO Interest Distribution Amount.
"Interest Reserve Account" has the meaning set forth in Section 3.5.
"Interest Reserve Loans" means the Mortgage Loans set forth on Exhibit R
attached hereto.
"Interest Shortfall": With respect to any Distribution Date for any
Lower-Tier Regular Interest or any Middle-Tier Regular Interest, the excess, if
any, of the Interest Distribution Amount of such Lower-Tier Regular Interest or
such Middle-Tier Regular Interest on such Distribution Date over the amount
actually distributed to such Lower-Tier Regular
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Interest or Middle-Tier Regular Interest in respect of its Interest Distribution
Amount on such Distribution Date.
"Interested Person": As of any date of determination, the Depositor, the
Master Servicer, the Special Servicer, the Trustee, any Borrower, any Manager of
a Mortgaged Property, any Independent Contractor engaged by the Special Servicer
pursuant to Section 3.17, or any Person known to a Responsible Officer of the
Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.7(a).
"Investment Representation Letter": As defined in Section 5.2(c)(i).
"IRS": The Internal Revenue Service, or any successor thereto.
"Liquidation Expenses": Expenses incurred by the Special Servicer and the
Trustee in connection with the liquidation of any Specially Serviced Mortgage
Loan or property acquired in respect thereof (including, without limitation,
legal fees and expenses, committee or referee fees, and, if applicable,
brokerage commissions, and conveyance taxes) and any Property Protection
Expenses incurred with respect to such Specially Serviced Mortgage Loan or such
property not previously reimbursed from collections or other proceeds therefrom.
"Liquidation Proceeds": The amount (other than Insurance Proceeds) received
in connection with (i) the liquidation of a Specially Serviced Mortgage Loan
through a trustee's sale, foreclosure sale or otherwise, (ii) the sale of a
Specially Serviced Mortgage Loan or an REO Property in accordance with Section
3.18, (iii) the sale of a Mortgage Loan in accordance with Section 5.8 or (iv)
the sale of all of the Mortgage Loans in accordance with Section 9.1.
"Loan Agreement": With respect to any Mortgage Loan, the loan agreement, if
any, between the Originator and the Borrower, pursuant to which such Mortgage
Loan was made.
"Loan Number": With respect to any Mortgage Loan, the loan number by which
such Mortgage Loan was identified on the books and records of the Master
Servicer or any sub-servicer for the Master Servicer, as set forth in the
Mortgage Loan Schedule.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, (a) the principal
balance of such Mortgage Loan as of the Cut-off Date, divided by (b) the
Appraised Value of the related Mortgaged Property.
"Lower-Tier Pass-Through Rate": With respect to any Distribution Date and
any Class of Lower-Tier Regular Interests, a per annum rate equal to the
Weighted Average Net Mortgage Rate for the related Interest Accrual Period.
"Lower-Tier Regular Interests": The Class A-1-L, Class A-2-L, Class B-L,
Class C-L, Class D-L, Class E-L, Class F-L, Class G-L, Class H-L, Class J-L,
Class K-L, Class L-L, Class M-L, Class N-L and Class O-L Interests.
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"Lower-Tier REMIC": A segregated asset pool including all of the assets set
forth in the definition of "Trust Fund," including the Mortgage Loans (but
excluding the rights to (i) Excess Interest in respect of any ARD Loan and (ii)
Default Interest in respect of any Mortgage Loan), collections thereon (other
than collections in respect of such excluded rights), any REO Property acquired
in respect thereof and amounts held from time to time in the Collection Account,
but excluding the assets included in the Middle-Tier REMIC or the Upper-Tier
REMIC.
"Management Agreement": With respect to any Mortgage Loan, the Management
Agreement, if any, by and between the Manager and the related Borrower, or any
successor Management Agreement between such parties.
"Manager": With respect to any Mortgage Loan, any property manager for the
related Mortgaged Property.
"Master Servicer": National Realty Funding L.C., a Missouri limited
liability company, or its successor in interest, or any successor master
servicer appointed as herein provided.
"Master Servicer Mortgage File": With respect to any Mortgage Loan, all
Mortgage Loan Documents related to such Mortgage Loan that are not required to
be delivered to the Custodian pursuant to Section 2.1 or to be maintained as
part of the Trustee Mortgage File, including without limitation:
(i) a copy of the Management Agreement, if any, for the related Mortgaged
Property;
(ii) a copy of the related ground lease, as amended, if any, for such
Mortgaged Property;
(iii) any and all amendments, modifications and supplements to, and waivers
related to, any of the foregoing;
(iv) copies of the related Appraisals, surveys, environmental reports,
leases and other similar documents;
(v) copies of all leases and subordination and non-disturbance agreements,
and documents and instruments related thereto; and
(vi) any other written agreements related to such Mortgage Loan.
"Master Servicer Remittance Report": A report prepared by the Master
Servicer, generally in accordance with The Commercial Real Estate Secondary
Market and Securitization Association Standards, in electronic format or such
media as may be agreed upon by the Master Servicer and the Trustee, delivered to
the Trustee no later than three Business Days prior to the related Distribution
Date, containing such information regarding the Mortgage Loans as will permit
the Trustee to calculate the amounts to be distributed pursuant to Section 4.1
and to
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furnish statements to Certificateholders pursuant to Section 4.2 and containing
such additional information as the Master Servicer and the Trustee may from time
to time agree.
"Maturity Date": With respect to each Mortgage Loan, the maturity date as
set forth in the Mortgage Loan Schedule.
"Middle-Tier Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.5(b), which shall be entitled "[Name of Trustee], as
Trustee, in trust for Holders of Prudential Securities Secured Financing
Corporation Commercial Mortgage Pass-Through Certificates, Series 1999-C2
Middle-Tier Distribution Account" and which shall be an Eligible Account.
"Middle-Tier Pass-Through Rate": With respect to any Distribution Date and
any of the Class A-1-M, Class A-2-M, Class B-M, Class C-M, Class D-M, Class E-M,
or Class F-M Interests, a per annum rate equal to the Weighted Average Net
Mortgage Rate for the related Interest Accrual Period. With respect to any
Distribution Date and any of the Class G-M, Class H-M, Class J-M, Class K-M,
Class L-M, Class M-M, Class N-M or Class O-M Interests, a per annum rate equal
to the lesser of (x) the Lower-Tier Pass-Through Rate for the related Lower-Tier
Regular Interest or (y) the Pass-Through Rate for the related Class of
Certificates plus 0.55%. With respect to any Distribution Date and the Class
M-IO Interest, the per annum rate that when multiplied by the Class M-IO
Notional Balance equals the Class M-IO Interest Amount.
"Middle-Tier Regular Interests": The Class A-1-M, Class A-2-M, Class M-IO,
Class B-M, Class C-M, Class D-M, Class E-M, Class F-M, Class G-M, Class H-M,
Class J-M, Class K-M, Class L-M, Class M-M, Class N-M and Class O-M Interests.
"Middle-Tier REMIC": A segregated asset pool within the Trust Fund which
includes the Lower-Tier Regular Interests and the Middle-Tier Distribution
Account.
"MLPSA I Mortgage Loans": The Mortgage Loans sold pursuant to Mortgage Loan
Purchase and Sale Agreement I.
"MLPSA II Mortgage Loans": The Mortgage Loans sold pursuant to Mortgage
Loan Purchase and Sale Agreement II.
"Monthly Payment": With respect to any Mortgage Loan (other than any REO
Mortgage Loan) and any Due Date, the scheduled monthly payment of principal and
interest, excluding any Balloon Payment, on such Mortgage Loan which is payable
by the related Borrower on such Due Date under the related Note (after giving
effect to any extension or modification permitted hereunder). With respect to
any REO Mortgage Loan, the monthly payment which would otherwise have been
payable on such Due Date had the related Note not been discharged (after giving
effect to any extension or other modification), determined as set forth in the
preceding sentence and on the assumption that all other amounts, if any, due
thereunder are paid when due.
"Moody's": Moody's Investors Service, Inc., and successors in interest.
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"Mortgage": The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest in a Mortgaged Property
securing the related Note.
"Mortgage File": With respect to any Mortgage Loan, the mortgage documents
required to be maintained in the Trustee Mortgage File and the Master Servicer
Mortgage File.
"Mortgage Loan": Each of the mortgage loans transferred and assigned to the
Trustee pursuant to Section 2.1 and from time to time held in the Trust Fund,
such mortgage loans originally so transferred, assigned and held being
identified on the Mortgage Loan Schedule as of the Cut-off Date. Such term shall
include any REO Mortgage Loan.
"Mortgage Loan Documents": All documents contained in the Trustee Mortgage
File and the Master Servicer Mortgage File.
"Mortgage Loan Purchase and Sale Agreement I": The Mortgage Loan Purchase
and Sale Agreement, dated July 22, 1999, between the Depositor and the
Transferor, substantially in the form attached hereto as Exhibit G-1.
"Mortgage Loan Purchase and Sale Agreement II": The Mortgage Loan Purchase
and Sale Agreement, dated July 22, 1999, between the Depositor and Greenwich
Capital Financial Products, Inc., substantially in the form attached hereto as
Exhibit G-2.
"Mortgage Loan Purchase and Sale Agreements": Collectively, Mortgage Loan
Purchase and Sale Agreement I and Mortgage Loan Purchase and Sale Agreement II.
"Mortgage Loan Schedule": As of any date, the list of Mortgage Loans
included in the Trust Fund on such date, such list as of the Closing Date being
attached hereto as Exhibit B, which list shall set forth the aggregate number of
Mortgage Loans and the following information with respect to each Mortgage Loan:
(a) the Loan Number;
(b) the property name of the related Mortgaged Property and the city and
state where such Mortgaged Property is located;
(c) the Monthly Payment in effect as of the Cut-off Date;
(d) the Mortgage Rate, the Default Rate and the Servicing Fee Rate;
(e) the Maturity Date;
(f) the period over which scheduled principal payments on such Mortgage
Loan would amortize the principal balance thereof;
(g) the Debt Service Coverage Ratio and Loan-to-Value Ratio.
(h) the Scheduled Principal Balance as of the Cut-off Date and, as
applicable, the allocation of such balance to each related Mortgaged
Property;
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(i) if applicable, the name of the Manager for the related Mortgaged
Property;
(j) whether such Mortgage Loan permits Non-Premium Prepayments;
(k) a description of the Prepayment Premium payable with respect to such
Mortgage Loan;
(l) the Loan Number of any Mortgage Loan with which such Mortgage Loan is
cross-collateralized or cross-defaulted;
(m) whether such Mortgage Loan is secured by a fee simple interest or a
leasehold interest in the related Mortgaged Property or both;
(n) the property type of the Mortgaged Property securing such Mortgage
Loan;
(o) the Originator of such Mortgage Loan;
(p) the Borrower name;
(q) the original term to maturity;
(r) the original principal amount of such Mortgage Loan;
(s) the monthly date of payment of principal and interest; and
(t) the initial monthly principal and interest payments.
The Mortgage Loan Schedule shall also set forth the total of the amounts
described under clause (c) and (h) above for all of the Mortgage Loans. The
Mortgage Loan Schedule may be in the form of more than one list, collectively
setting forth all of the information required.
"Mortgage Loan Sellers": National Realty Finance L.C., a Missouri limited
liability company, and its successors in interest, Greenwich Capital Financial
Products, Inc., a Delaware corporation and Bridger Commercial Realty Finance
LLC, a Missouri limited liability company, and its successors in interest.
"Mortgage Rate": With respect to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan (in the absence of a default or,
with respect to any ARD Loan, in the absence of a failure to prepay such ARD
Loan on or before its Anticipated Repayment Date), as set forth in the Mortgage
Loan Schedule; provided, however, that if any Mortgage Loan does not accrue
interest on the basis of a 360-day year consisting of twelve 30-day months, then
the Mortgage Rate of such Mortgage Loan for any one-month period preceding a
related Due Date will be the annualized rate at which interest would have to
accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Default Interest or Excess Interest) in
respect of such Mortgage Loan during such one-month period at the related
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Mortgage Rate; and provided further that with respect to each Interest Reserve
Loan, (i) the Mortgage Rate for the one month period preceding the Due Dates in
both January and February in any year that is not a leap year and in February in
any year that is a leap year, shall be determined net of any Withheld Amounts
and (ii) the Mortgage Rate for the one month period preceding the Due Date in
March of each year shall be determined taking into account the addition of the
Withheld Amounts. The "Mortgage Rate" for purposes of calculating the Weighted
Average Net Mortgage Rate shall be the Mortgage Rate of such Mortgage Loan
without taking into account any reduction in the interest rate by a bankruptcy
court pursuant to a plan of reorganization or pursuant to any of its equitable
powers or a reduction in interest or principal due to a modification of such
Mortgage Loan.
"Mortgaged Property": The underlying property securing a Mortgage Loan,
including any REO Property, consisting of a fee simple or leasehold estate in a
parcel of land improved by a commercial property, together with any personal
property, fixtures, leases and other property or rights pertaining thereto.
"Net Collections" means, with respect to any Corrected Mortgage Loan, an
amount equal to all payments on account of interest and principal on such
Mortgage Loan and all Prepayment Premiums, Yield Maintenance Charges and Excess
Interest.
"Net Liquidation Proceeds": The excess of Liquidation Proceeds received
with respect to any Mortgage Loan over the amount of Liquidation Expenses
incurred with respect thereto.
"Net Mortgage Rate": With respect to any Mortgage Loan, the Mortgage Rate
for such Mortgage Loan minus the related Servicing Fee Rate and the Trustee
Rate, as such rates are set forth on the Mortgage Loan Schedule.
"Net REO Proceeds": With respect to each REO Property, REO Proceeds with
respect to such REO Property net of any insurance premiums, taxes, assessments
and other costs and expenses permitted to be paid therefrom pursuant to Section
3.17(b).
"New Lease": Any lease of REO Property entered into on behalf of the Trust
Fund, including any lease renewed or extended on behalf of the Trust Fund if the
Trust Fund has the right to renegotiate the terms of such lease.
"1933 Act": The Securities Act of 1933, as it may be amended from time to
time.
"1934 Act": The Securities Exchange Act of 1934, as it may be amended from
time to time.
"Non-Premium Prepayment": Any Principal Prepayment received that is not
required to be accompanied by a Prepayment Premium or Yield Maintenance Charge.
"Nonrecoverable Advance": Any portion of an Advance proposed to be made or
previously made which has not been previously reimbursed to the Master Servicer
or the Trustee, in its capacity as successor master servicer, as applicable, and
which the Master Servicer or the
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Trustee, in its capacity as successor master servicer, has determined, based on
an Appraisal (which Appraisal shall have been conducted within the twelve months
preceding any such determination) or, in the event that a Phase I or Phase II
environmental report has been conducted which leads the Master Servicer or the
Trustee, in its capacity as successor master servicer, to determine that
foreclosing upon or otherwise obtaining title to the related Mortgaged Property
would be prohibited in accordance with the provisions of Section 3.10(e), based
on such environmental report, will not or, in the case of a proposed Advance,
would not, be ultimately recoverable by the Master Servicer or the Trustee in
its capacity as successor master servicer, as applicable, from late payments,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and other
collections on or in respect of the related Mortgage Loan. To the extent that
any Borrower is not obligated under the related Mortgage Loan Documents to pay
or reimburse any portion of any Advances that are outstanding with respect to
the related Mortgage Loan as a result of a modification of such Mortgage Loan by
the Special Servicer that forgives unpaid Monthly Payments or other amounts that
the Master Servicer had previously advanced, and the Master Servicer or the
Trustee, in its capacity as successor master servicer, determines that no other
source of payment or reimbursement for such advances is available to it, such
Advances shall be deemed to be nonrecoverable; provided, however, that in
connection with the foregoing the Master Servicer or the Trustee shall provide
an Officer's Certificate as described below. The determination by the Master
Servicer or the Trustee, in its capacity as successor master servicer, as
applicable, that it has made a Nonrecoverable Advance or that any proposed
Advance, if made, would constitute a Nonrecoverable Advance shall be evidenced
by a certificate of a Servicing Officer, Responsible Officer or Vice President
or equivalent, as appropriate, delivered to the Trustee, the Special Servicer
and the Depositor setting forth such determination and the procedures and
considerations of the Master Servicer or the Trustee, as applicable, forming the
basis of such determination (including a copy of the Appraisal or environmental
report which was the basis for such determination). Notwithstanding the above,
the Trustee shall be entitled to conclusively rely upon any determination by the
Master Servicer that any Advance previously made is a Nonrecoverable Advance or
that any proposed Advance, if made, would constitute a Nonrecoverable Advance.
"Non-U.S. Person": A person that is not (1) a citizen or resident of the
United States; (2) a corporation, partnership, or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof; (3) an estate whose income from sources outside the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States; or (4) a trust subject to the control of a United States person
and the primary supervision of a United States court.
"Note": With respect to any Mortgage Loan as of any date of determination,
the note or other evidence of indebtedness and/or agreements evidencing the
indebtedness of the related Borrower or obligor under such Mortgage Loan, in
each case, including any amendments or modifications, or any renewal or
substitution notes, as of such date.
"Notice of Termination": Any of the notices given to the
Trustee by any Holder of a Class R-III Certificate, the Master Servicer or the
Depositor pursuant to Section 9.1(c), 9.1(d) or 9.1(e).
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"Notional Balance": The Class A-EC1 Notional Balance, the Class A-EC2
Notional Balance, or the Class M-IO Notional Balance.
"Officer's Certificate": A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President, a Vice President (however
denominated), the Treasurer, the Secretary, one of the Assistant Treasurers or
Assistant Secretaries or any other officer of the Master Servicer or the Special
Servicer, as applicable, customarily performing functions similar to those
performed by any of the above designated officers and also with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject, or an
authorized officer of the Depositor, and delivered to the Depositor, the
Trustee, the Special Servicer or the Master Servicer, as the case may be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Depositor, the Special Servicer or the Master
Servicer, as the case may be, acceptable to the Trustee, except that any opinion
of counsel relating to (a) qualification of the Upper-Tier REMIC, Middle-Tier
REMIC or Lower-Tier REMIC as a REMIC or the imposition of tax under the REMIC
Provisions on any income or property of any REMIC, (b) compliance with the REMIC
Provisions (including application of the definition of "Independent
Contractor"), or (c) a resignation of the Master Servicer or the Special
Servicer, as applicable, pursuant to Section 6.4, must be an opinion of counsel
who is Independent of the Depositor, the Special Servicer and the Master
Servicer.
"Originator": With respect to a Mortgage Loan, the originator of such
Mortgage Loan, as identified in the Mortgage Loan Schedule.
"OTS": The Office of Thrift Supervision, or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"P&I Advance": As to any Mortgage Loan, any advance made by the Master
Servicer or the Trustee pursuant to Section 4.6(b)(iii).
"Pass-Through Rate": Any one of the Class A-1, Class A-2, Class A-EC1,
Class A-EC2, 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 Pass-Through Rates.
"Paying Agent": The paying agent appointed pursuant to Section 5.5.
"Percentage Interest": As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made with respect to the
related Class. With respect to any Certificate (except the Class R-I, Class R-II
and Class R-III Certificates), the percentage interest is derived by dividing
the initial denomination of such Certificate by the initial Certificate Balance
or Notional Balance of such Class of Certificates. With respect to any Class
R-I, R-II or Class R-III Certificate, the percentage interest is set forth on
the face thereof.
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"Permitted Investments": Any one or more of the following obligations or
securities, regardless of whether issued by the Depositor, the Master Servicer,
the Special Servicer, the Trustee or any of their respective Affiliates, and
having at all times the required ratings, if any, provided for in this
definition (provided that no Permitted Investment, if downgraded, shall be
required to be sold at a loss), unless each Rating Agency shall have confirmed
in writing to the Master Servicer or the Special Servicer, as applicable, that a
lower rating will not result in the withdrawal, downgrading or qualification of
the ratings then assigned to the Certificates:
(i) direct obligations of, or obligations guaranteed as to full and timely
payment of principal and interest by, the United States or any agency or
instrumentality thereof, provided that such obligations are backed by the
full faith and credit of the United States of America, including, without
limitation, U.S. Treasury Obligations, Farmers Home Administration
certificates of beneficial interest, General Services Administration
participation certificates and Small Business Administration guaranteed
participation certificates or guaranteed pool certificates;
(ii) Federal Housing Administration debentures;
(iii) direct obligations of, or guaranteed as to timely payment of
principal and interest by, FHLMC (debt obligations only), FNMA (debt
obligations only), the Federal Farm Credit System (consolidated system-wide
bonds and notes only), the Federal Home Loan Banks (consolidated debt
obligations only), the Student Loan Marketing Association, the Financing
Corp. (debt obligations only), and the Resolution Funding Corp.;
(iv) Federal funds, time deposits in, or unsecured certificates of deposit
of, or bankers' acceptances, or repurchase obligations, all having maturities
of not more than 365 days issued by, any bank or trust company, savings and
loan association or savings bank, depository institution or trust company
having a short term debt obligation rating from S&P of "A-1+" and that is in
the highest short-term rating category of each Rating Agency unless each of
the Rating Agencies has confirmed in writing that a lower rating shall not
result, in and of itself, in a downgrading, withdrawal or qualification of
the rating then assigned by such Rating Agency to any Class of the
Certificates;
(v) commercial paper having a maturity of 365 days or less (including (A)
both non-interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more than one year
after the date of issuance thereof and (B) demand notes that constitute
vehicles for investment in commercial paper) that is rated by each Rating
Agency in its highest short-term unsecured rating category;
(vi) units of taxable money market funds rated "AAAm-G" or "AAAm" by S&P or
mutual funds which seek to maintain a constant asset value and have been
rated by each Rating Agency in its highest rating category or which have been
designated in writing by each Rating Agency as Permitted Investments with
respect to this definition;
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(vii) any other demand, money market or time deposit, demand obligation or
any other obligation, security or investment, as may be acceptable to each
Rating Agency as a permitted investment of funds backing securities having
ratings equivalent to its initial rating of the Class A-1, Class A-2, Class
A-EC1 and Class A-EC2 Certificates if each of the Rating Agencies has
previously confirmed in writing that the holding of such demand, money market
or time deposit, demand obligation or any other obligation, security or
investment shall not result, in and of itself, in a downgrading, withdrawal
or qualification of the rating then assigned by such Rating Agency to any
Class of Certificates; and
(viii) such other obligations confirmed in writing by each of the Rating
Agencies that such obligations are acceptable as Permitted Investments and
the holding of such obligations by the Master Servicer or the Special
Servicer, as applicable, shall not result, in and of itself, in a
downgrading, withdrawal or qualification of the rating then assigned by such
Rating Agency to any Class of Certificates;
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be a
Permitted Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Code Section 860G(a)(5); and provided, further,
that any such instrument shall have a maturity date no later than the date such
instrument is required to be used to satisfy the obligations under this
Agreement, and, in any event, shall not have a maturity in excess of one year;
any such instrument must have a predetermined fixed dollar of principal due at
maturity that cannot vary or change; if rated, the obligation must not have an
"r" highlighter affixed to its rating; interest on any variable rate instrument
shall be tied to a single interest rate index plus a single fixed spread (if
any) and move proportionally with that index; and provided, further, that no
amount beneficially owned by any REMIC (including any amounts collected by the
Master Servicer but not yet deposited in the Collection Account) may be invested
in investments treated as equity interests for Federal income tax purposes. No
Eligible Investments shall be purchased at a price in excess of par. For the
purpose of this definition, (x) units of investment funds (including money
market funds) shall be deemed to mature daily, and (y) the "Minimum
Maturity-Based Rating" means, in all cases, "AAA".
"Permitted Transferee": With respect to a Class R-I, Class R-II or Class
R-III Certificate, any Person or agent thereof that is a Qualified Institutional
Buyer other than (a) a Disqualified Organization, (b) any other Person
designated by the Certificate Registrar based upon an Opinion of Counsel
(provided at the expense of such Person or the Person requesting the Transfer)
to the effect that the Transfer of an Ownership Interest in any Class R-I, Class
R-II or Class R-III Certificate to such Person may cause the Upper-Tier REMIC,
Middle-Tier REMIC or
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Lower-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates
are outstanding, or (c) a Person that is a Disqualified Non-U.S. Person.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Placement Agents": Prudential Securities Incorporated and Greenwich
NatWest Limited, as agent for National Westminster Bank, Plc.
"Plan": As defined in Section 5.2(i).
"Pooled Principal Distribution Amount": For any Distribution Date, an
amount equal to the sum of:
(i) the principal component of all scheduled Monthly Payments that become
due (regardless of whether received) on the Mortgage Loans during the related
Collection Period;
(ii) to the extent not included elsewhere in this definition, the principal
component of all Assumed Scheduled Payments, as applicable, deemed to become
due (regardless of whether received) during the related Collection Period
with respect to any Mortgage Loan that is delinquent in respect of its
Balloon Payment;
(iii) to the extent not included elsewhere in this definition, the
Scheduled Principal Balance of each Mortgage Loan that was repurchased from
the Trust Fund in connection with the breach of a representation or warranty
or purchased from the Trust Fund pursuant to Section 3.18, Section 5.8 or
Section 9.1, in either case, during the related Collection Period;
(iv) to the extent not included elsewhere in this definition, the portion
of Unscheduled Payments allocable to principal of any Mortgage Loan that was
liquidated during the related Collection Period;
(v) to the extent not included elsewhere in this definition, the principal
component of all Balloon Payments received during the related Collection
Period;
(vi) to the extent not included elsewhere in this definition, all other
Principal Prepayments received in the related Collection Period; and
(vii) to the extent not included elsewhere in this definition, any other
full or partial recoveries in respect of principal, including Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and Net REO Proceeds.
"Prepayment Interest Shortfall": With respect to any Distribution Date and
any Mortgage Loan as to which a Principal Prepayment was made by the related
Borrower during the related Collection Period, the amount by which (i) 30 full
days of interest at the related Net
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Mortgage Rate on the Scheduled Principal Balance of such Mortgage Loan in
respect of which interest would have been due in the absence of such Principal
Prepayment on the Due Date next succeeding the date of such Principal Prepayment
exceeds (ii) the amount of interest received from the related Borrower in
respect of such Principal Prepayment.
"Prepayment Interest Surplus": With respect to any Distribution Date and
any Mortgage Loan as to which a Principal Prepayment was made by the related
Borrower during the related Collection Period, the amount by which (i) the
amount of interest received from the related Borrower in respect of such
Principal Prepayment exceeds (ii) 30 full days of interest at the related Net
Mortgage Rate on the Scheduled Principal Balance of such Mortgage Loan in
respect of which interest would have been due in the absence of such Principal
Prepayment on the Due Date next succeeding the date of such Principal
Prepayment.
"Prepayment Premium": Payments received on a Mortgage Loan as the result of
a Principal Prepayment thereon, not otherwise due thereon in respect of
principal or interest, calculated as a fixed percentage of the then-outstanding
principal balance of such Mortgage Loan to be prepaid, other than Yield
Maintenance Charges.
"Principal Prepayment": With respect to any Mortgage Loan, any payment of
principal made by the related Borrower that is received in advance of its
scheduled Due Date and that is not accompanied by an amount of interest
representing the full amount of scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
"Privately Placed Certificates": The Class A-EC1 Certificates, the Class
A-EC2 Certificates, the Class G Certificates, the Class H Certificates, the
Class J Certificates, the Class K Certificates, the Class L Certificates, the
Class M Certificates, the Class N Certificates, the Class O Certificates, the
Class R-I Certificates, the Class R-II Certificates and the Class R-III
Certificates.
"Property Advance": As to any Mortgage Loan, any advance made by the Master
Servicer or the Trustee in respect of Property Protection Expenses or any
expenses incurred to protect and preserve the security for such Mortgage Loan or
taxes and assessments or similar items or insurance premiums, pursuant to
Section 3.4, Section 3.8 or Section 3.22, as applicable.
"Property Protection Expenses": Any costs and expenses incurred pursuant to
Sections 3.10(b), 3.10(f), 3.10(i), 3.17(b), 3.17(c), 3.18(a) and 3.18(b).
"Qualified Institutional Buyer": A qualified institutional buyer within the
meaning of Rule 144A.
"Qualified Insurer": An insurance company or security or bonding company
qualified to write the related insurance policy in the relevant jurisdiction,
which (i) except as provided in clauses (ii) or (iii) below, shall have a claims
paying ability of "AA" or better by S&P and a financial strength rating of "Aa2"
or better by Moody's, (ii) in the case of public liability insurance policies
required to be maintained with respect to REO Properties in accordance with
Section 3.8(a), shall have a claims paying ability of "A" or better by S&P and a
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financial strength rating of "A2" by Moody's or (iii) in the case of the
fidelity bond and errors and omissions insurance required to be maintained
pursuant to Section 3.8(c), shall have a claims paying ability or financial
strength, as applicable, rated by each Rating Agency no lower than two ratings
categories 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 and
"Baa2" by Moody's, unless in any such case each of the Rating Agencies has
confirmed in writing that an insurance company with a lower claims paying
ability shall not result, in and of itself, in a downgrading, withdrawal or
qualification of the rating then assigned by such Rating Agency to any Class of
Certificates.
"Qualified Mortgage": 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 Regulations 1.860G-2(f)(2) that treats a defective obligation as a
qualified mortgage), or any substantially similar successor provision.
"Rated Final Distribution Date": June 16, 2031.
"Rating Agency": Each of Moody's and S&P. References herein to the highest
long-term unsecured debt rating category of each Rating Agency shall mean "Aaa"
in the case of Moody's and "AAA" in the case of S&P, and references herein to
the highest short-term unsecured debt rating category of each Rating Agency
shall mean "P-1+" in the case of Moody's and "A-1+" in the case of S&P.
"Realized Loss": With respect to any Distribution Date, the amount, if any,
by which (1) the aggregate Certificate Balance, after giving effect to
distributions made on such Distribution Date, exceeds (2) the aggregate of the
Scheduled Principal Balances of the Mortgage Loans as of the Due Date in the
month in which such Distribution Date occurs.
"Record Date": With respect to each Distribution Date, the last Business
Day of the month preceding the month in which such Distribution Date occurs.
"Regular Certificates": The Class A-1, Class A-2, Class A-EC1, Class A-EC2,
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.
"Regulation D": Regulation D under the Act.
"Related Certificates," "Related Middle-Tier Regular Interest," and
"Related Lower-Tier Regular Interest": For any Lower-Tier Regular Interest, the
related Middle-Tier Regular Interest and the related Certificates set forth
below; for any Middle-Tier Regular Interest, the related Lower-Tier Regular
Interest and the related Certificates set forth below; and for any Certificates,
the related Middle-Tier Regular Interest and related Lower-Tier Regular Interest
set forth below:
Related Middle-Tier Related Lower-Tier
Related Certificate Regular Interest Regular Interest
------------------- ---------------- ----------------
Class A-1 Class A-1-M Class A-1-L
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Class A-2 Class A-2-M Class A-2-L
Class B Class B-M Class B-L
Class C Class C-M Class C-L
Class D Class D-M Class D-L
Class E Class E-M Class E-L
Class F Class F-M Class F-L
Class G Class G-M Class G-L
Class H Class H-M Class H-L
Class J Class J-M Class J-L
Class K Class K-M Class K-L
Class L Class L-M Class L-L
Class M Class M-M Class M-L
Class N Class N-M Class N-L
Class O Class O-M Class O-L
"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations (including any applicable proposed regulations) and rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Remittance Date": The Business Day preceding each Distribution Date.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code, which income, subject
to the terms and conditions of that Section of the Code in its present form,
does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code, any amount
received or accrued, directly or indirectly, with respect to such REO
Property, if the determination of such amount depends in whole or in part on
the income or profits derived by any Person from such property (unless such
amount is a fixed percentage or percentages of receipts or sales and
otherwise constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined in
accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(iii) any amount received or accrued, directly or indirectly, with respect
to such REO Property if any Person Directly Operates such REO Property;
(iv) any amount charged for services that are not customarily furnished in
connection with the rental of property to tenants in buildings of a similar
class in the same
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geographic market as such REO Property within the meaning of Treasury
Regulations Section 1.856-4(b)(1) (whether or not such charges are separately
stated); and
(v) rent attributable to personal property unless such personal property is
leased under, or in connection with, the lease of such REO Property and, for
any taxable year of the Trust Fund, such rent is no greater than 15 percent
of the total rent received or accrued under, or in connection with, the
lease.
"REO Account": As defined in Section 3.17(b).
"REO Mortgage Loan": Any Mortgage Loan as to which the related Mortgaged
Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the related REO
Mortgage Loan, all revenues received by the Master Servicer with respect to such
REO Property or REO Mortgage Loan that do not constitute Liquidation Proceeds.
"REO Property": A Mortgaged Property title to which has been acquired by
the Master Servicer on behalf of the Trust Fund through foreclosure, deed in
lieu of foreclosure or otherwise.
"Repurchase Price": With respect to any Mortgage Loan to be repurchased
pursuant to Section 2.3(d) or 2.3(e) or any Specially Serviced Mortgage Loan or
any REO Property to be sold or repurchased pursuant to Section 3.18, an amount,
calculated by the Master Servicer, equal to:
(i) the unpaid principal balance of such Mortgage Loan, Specially Serviced
Mortgage Loan or REO Mortgage Loan as of the Due Date as to which a payment
was last made by the related Borrower or was advanced by the Master Servicer
(less any Advances previously made on account of principal); plus
(ii) unpaid accrued interest from the Due Date as to which interest was
last paid by such Borrower or was advanced by the Master Servicer up to the
Due Date in the month following the month in which the purchase or repurchase
occurred at a rate equal to the related Mortgage Rate on the unpaid principal
balance of such Mortgage Loan, Specially Serviced Mortgage Loan or REO
Mortgage Loan (less any Advances previously made on account of interest);
plus
(iii) all unreimbursed Advances, together with interest thereon at the
Advance Rate, and unpaid Servicing Compensation allocable to such
Mortgage Loan; and plus
(iv) in the event that such Mortgage Loan is required to be repurchased
pursuant to Section 2.3(d) or 2.3(e), expenses reasonably incurred or to be
incurred by the Master Servicer or the Trustee in respect of the breach or
defect giving rise to the repurchase obligation, including any expenses
arising out of the enforcement of the repurchase obligation.
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"Request for Release": A request for release signed by a Servicing Officer,
substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan, reserve or escrow
accounts, if any, established pursuant to the related Mortgage Loan Documents
and any Escrow Account. Each Reserve Account shall be an Eligible Account to the
extent consistent with applicable law and the related Mortgage Loan Documents.
Any Reserve Account shall be beneficially owned for federal income tax purposes
by the Person who is entitled to receive the reinvestment income or gain thereon
in accordance with the related Mortgage Loan Documents and Section 3.7.
"Responsible Officer": Any officer or any employee with responsibilities
similar to those of an officer of the Capital Markets Fiduciary Services (CMBS)
Department of the Trustee (and, in the event that the Trustee is the Certificate
Registrar or the Paying Agent, of the Certificate Registrar or the Paying Agent,
as applicable) assigned to the Corporate Trust Office with direct responsibility
for the administration of this Agreement and also, with respect to a particular
matter, any other officer or any employee with responsibilities similar to those
of an officer of the Capital Markets Fiduciary Services (CMBS) Department of the
Trustee to whom such matter is referred because of such officer's or employee's
knowledge of and familiarity with the particular subject, and, in the case of
any certification required to be signed by a Responsible Officer, such an
officer or employee whose name and specimen signature appears on a list of
corporate trust officers and employees furnished to the Master Servicer by the
Trustee, as such list may from time to time be amended.
"Revised Rate": With respect to each ARD Loan, the annual rate at which
interest accrues on such ARD Loan on and after the related Anticipated Repayment
Date as specified in the related Mortgage Note; provided that, pursuant to
Section 3.3 hereof, the Master Servicer and Special Servicer will deem such rate
to accrue at a rate not to exceed the Mortgage Rate plus 2.00% per annum and
fulfill their duties hereunder with respect to the enforcement of such
provisions accordingly unless each Rating Agency has been notified of the
intention of the Master Servicer or Special Servicer to enforce the rate
specified in the related Note and each Rating Agency has indicated that such
action will not, by itself, result in the downgrade, modification or withdrawal
of any rating then assigned by it to any Class of Certificates.
"Rule 144A": Rule 144A under the 1933 Act.
"Scheduled Final Distribution Date": With respect to any Class of
Certificates, the Distribution Date on which the related Certificate Balance or
Notional Balance would be reduced to zero assuming no delays in the collection
of Balloon Payments or liquidation proceeds, no exercise of defeasance options
or prepayment of Mortgage Loans (voluntary or involuntary), no early termination
of the Trust, no defaults, no condemnations, no modifications, no extensions and
payment in full of ARD Loans on the related Anticipated Repayment Dates, which
Scheduled Final Distribution Date for each Class of Certificates is as set forth
below:
--------------------------- -----------------------------------
SCHEDULED FINAL
CLASS DISTRIBUTION DATE
----- -----------------
--------------------------- -----------------------------------
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--------------------------- -----------------------------------
SCHEDULED FINAL
CLASS DISTRIBUTION DATE
----- -----------------
--------------------------- -----------------------------------
Class A-1 June 15, 2008
--------------------------- -----------------------------------
Class A-2 April 15, 2009
--------------------------- -----------------------------------
Class A-EC1 N/A
--------------------------- -----------------------------------
Class A-EC2 N/A
--------------------------- -----------------------------------
Class B April 15, 2009
--------------------------- -----------------------------------
Class C May 15, 2009
--------------------------- -----------------------------------
Class D June 15, 2009
--------------------------- -----------------------------------
Class E June 15, 2009
--------------------------- -----------------------------------
Class F June 15, 2010
--------------------------- -----------------------------------
Class G May 15, 2011
--------------------------- -----------------------------------
Class H August 15, 2011
--------------------------- -----------------------------------
Class J November 15, 2012
--------------------------- -----------------------------------
Class K June 15, 2013
--------------------------- -----------------------------------
Class L April 15, 2014
--------------------------- -----------------------------------
Class M May 15, 2015
--------------------------- -----------------------------------
Class N May 15, 2017
--------------------------- -----------------------------------
Class O September 15, 2023
--------------------------- -----------------------------------
Class R-I N/A
--------------------------- -----------------------------------
Class R-II N/A
--------------------------- -----------------------------------
Class R-III N/A
--------------------------- -----------------------------------
"Scheduled Principal Balance": With respect to any Mortgage Loan, as of any
Due Date, the principal balance of such Mortgage Loan as of such Due Date, after
giving effect to (a) any Principal Prepayments, Non-Premium Prepayments or other
unscheduled recoveries of principal and any Balloon Payments received during the
related Collection Period, and (b) any
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payment in respect of principal, if any, due on or before such Due Date (other
than a Balloon Payment, but including the principal portion of any Assumed
Scheduled Payment, if applicable), irrespective of any delinquency in payment by
the Borrower. The Scheduled Principal Balance of any REO Mortgage Loan as of any
Due Date is equal to the principal balance thereof outstanding on the date that
the related Mortgaged Property became an REO Property minus any Net REO Proceeds
allocated to principal on such REO Mortgage Loan and reduced by the principal
component of Monthly Payments due thereon on or before such Due Date. With
respect to any Mortgage Loan, from and after the date on which the Master
Servicer makes a Final Recovery Determination, the Scheduled Principal Balance
thereof shall be zero.
"Securities Depository": The Depository Trust Company, or any successor
securities depository hereafter named. The nominee of the initial Securities
Depository, for purposes of registering those Certificates that are to be
Book-Entry Certificates, is Cede & Co. The Securities Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934, as amended.
"Securities Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time the Securities
Depository effects book-entry transfers and pledges of securities deposited with
the Securities Depository.
"Senior Principal Distribution Cross-Over Date": The first Distribution
Date as of which the aggregate Certificate Balances of the Class A-1
Certificates and the Class A-2 Certificates outstanding immediately prior
thereto exceeds the sum of (a) the aggregate Scheduled Principal Balance of the
Mortgage Loans that will be outstanding immediately following such Distribution
Date and (b) the portion of the Available Funds for such Distribution Date that
will remain after the distribution of interest has been made on the Class A-1
Certificates and the Class A-2 Certificates on such Distribution Date.
"Servicing Compensation": With respect to each Mortgage Loan, the Servicing
Fee, the Special Servicing Fee , the Disposition Fee and the Workout Fee which
shall be due to the Master Servicer and the Special Servicer, as applicable, and
such other compensation of the Master Servicer and Special Servicer specified in
Section 3.12, as adjusted pursuant to Section 3.25.
"Servicing Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per calendar month equal to the product of (i)
one-twelfth of the related Servicing Fee Rate and (ii) the Scheduled Principal
Balance of such Mortgage Loan as of the Due Date in the month preceding the
month in which such Distribution Date occurs.
"Servicing Fee Rate": With respect to each Mortgage Loan, a rate per annum
ranging from 0.05% to 0.25%, in each case as specified on the Mortgage Loan
Schedule.
"Servicing Officer": Any officer or employee of the Master Servicer or the
Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing
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of the Mortgage Loans or this Agreement and also, with respect to a particular
matter, any other officer or employee to whom such matter is referred because of
such officer's or employee's knowledge of and familiarity with the particular
subject, and, in the case of any certification required to be signed by a
Servicing Officer, such an officer or employee whose name and specimen signature
appears on a list of servicing officers furnished to the Trustee by the Master
Servicer or the Special Servicer, as applicable, as such list may from time to
time be amended, together with, in the case of a certificate or other writing
executed by an employee who constitutes a Servicing Officer because of such
employee's knowledge and familiarity with a particular subject, a
countersignature of an officer of the Master Servicer or Special Servicer, as
appropriate.
"Servicing Standard": The standards for the conduct of the Master Servicer
and the Special Servicer in the performance of their obligations under this
Agreement set forth in Section 3.1(a).
"Similar Law": As defined in Section 5.2(i).
"Special Servicer": National Realty Funding L.C., or its successor in
interest, or any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to any Specially Serviced Mortgage
Loan or REO Mortgage Loan and for any Distribution Date, an amount per calendar
month equal to the product of (i) one-twelfth of the Special Servicing Fee Rate
and (ii) the Scheduled Principal Balance of such Specially Serviced Mortgage
Loan or REO Mortgage Loan as of the Due Date in the month preceding the month in
which such Distribution Date occurs with respect to such Specially Serviced
Mortgage Loan or REO Mortgage Loan.
"Special Servicing Fee Rate": A rate equal to 0.25% per annum.
"Specially Serviced Mortgage Loan": Subject to Section 3.24, any Mortgage
Loan with respect to which:
(i) the related Borrower is 60 or more days delinquent (without giving
effect to any grace period permitted by the related Note) in the payment of a
Monthly Payment (regardless of whether, in respect thereof, P&I Advances have
been reimbursed);
(ii) such Borrower has expressed to the Master Servicer an inability to pay
or a hardship in paying such Mortgage Loan in accordance with its terms;
(iii) the Master Servicer has received notice that such Borrower has become
the subject of any bankruptcy, insolvency or similar proceeding, admitted in
writing the inability to pay its debts as they come due or made an assignment
for the benefit of creditors;
(iv) the Master Servicer has received notice of a foreclosure or threatened
foreclosure of any lien on the related Mortgaged Property;
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(v) a default of which the Master Servicer has notice (other than a failure
by such Borrower to pay principal or interest) and which materially and
adversely affects the interests of the Certificateholders has occurred and
remained unremedied for the applicable grace period specified in such
Mortgage Loan (or, if no grace period is specified, 60 days); provided,
however, that a default requiring a Property Advance shall be deemed to
materially and adversely affect the interests of the Certificateholders;
(vi) such Borrower has failed to make a Balloon Payment as and when due
(except in the case where the Master Servicer and the Special Servicer agree
in writing that such Mortgage Loan is likely to be paid in full within 30
days after such default);
(vii) the Master Servicer proposes to commence foreclosure or other workout
arrangements; or
(viii) the Master Servicer otherwise determines that there is a material
risk that the related Borrower shall default on such Mortgage Loan.
provided, however, that a Mortgage Loan will cease to be a Specially
Serviced Mortgage Loan:
(a) with respect to the circumstances described in clause (i) and (vi)
above, when the related Borrower has brought such Mortgage Loan current (with
respect to the circumstances described in clause (vi), pursuant to any
workout implemented by the Special Servicer) and thereafter made three
consecutive full and timely Monthly Payments;
(b) with respect to the circumstances described in clauses (ii) and (iv)
above, when such circumstances cease to exist in the good faith judgment of
the Special Servicer and with respect to the circumstances described in
clauses (iii) and (vii), when such circumstances cease to exist;
(c) with respect to the circumstances described in clause (v) above, when
such default is cured; and
(d) with respect to the circumstances described in (viii) above, the Master
Servicer determines that there is not a material risk that the related
Borrower shall default on such Mortgage Loan;
provided, however, that at the time no circumstance identified in clauses
(i) through (viii) above exists that would cause the Mortgage Loan to continue
to be characterized as a Specially Serviced Mortgage Loan.
"S&P": Standard & Poor's Ratings Services, and successors in interest.
"Startup Day": The day designated as such pursuant to Section 2.6(a)
hereof.
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"Subordinate Certificates": Any one or more of the Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class R-I, Class R-II and Class R-III Certificates.
"Tax Returns": The federal income tax return on IRS Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of each of
the Upper-Tier REMIC, Middle-Tier REMIC and Lower-Tier REMIC under the REMIC
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the IRS
or any other governmental taxing authority under any applicable provisions of
federal, state or local tax laws.
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.1.
"Transfer": Any direct or indirect transfer or other form of assignment of
any Ownership Interest in a Class R-I, Class R-II or Class R-III Certificate.
"Transferor": Prudential Securities Credit Corp., a Delaware corporation,
or any successor.
"Transferee Affidavit": As defined in Section 5.2(j)(ii).
"Transferor Letter": As defined in Section 5.2(j)(ii).
"Trust Fund": The corpus of the trust created hereby and to be administered
hereunder, consisting of: (i) such Mortgage Loans as from time to time are
subject to this Agreement, together with the Mortgage Files relating thereto;
(ii) all payments on or collections in respect of such Mortgage Loans due after
the Cut-off Date; (iii) any REO Property; (iv) all revenues received in respect
of REO Property; (v) the Master Servicer's, the Special Servicer's and the
Trustee's rights under the insurance policies with respect to such Mortgage
Loans required to be maintained pursuant to this Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties given as additional security for
such Mortgage Loans; (viii) the Trustee's right, title and interest in and to
the Reserve Accounts; (ix) the Collection Account; (x) the Distribution Account
and the REO Account, including reinvestment income, if any, thereon; (xi) any
environmental indemnity agreements relating to such Mortgaged Properties; (xii)
the rights and remedies under the Mortgage Loan Purchase and Sale Agreements and
the Underlying Mortgage Loan Purchase and Sale Agreements; and (xiii) the
proceeds of any of the foregoing (other than any interest earned on deposits in
any Reserve Account, to the extent such interest belongs to the related
Borrower).
"Trust REMICs": The Lower-Tier REMIC, the Middle-Tier REMIC and the
Upper-Tier REMIC.
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"Trustee": The Chase Manhattan Bank, in its capacity as trustee, or its
successor in interest, or any successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any Distribution
Date, an amount per calendar month equal to the product of (i) one-twelfth of
the Trustee Fee Rate and (ii) the Scheduled Principal Balance of such Mortgage
Loan as of the Due Date in the month preceding the month in which such
Distribution Date occurs.
"Trustee Fee Rate": A rate equal to 0.0030% per annum.
"Trustee Mortgage File": With respect to any Mortgage Loan, the mortgage
documents listed in Section 2.1(i) through (xiii) pertaining to such Mortgage
Loan and any additional documents required to be deposited with the Trustee
pursuant to the express provisions of this Agreement.
"Uncovered Prepayment Interest Shortfall": For any Distribution Date, any
Prepayment Interest Shortfall not covered by a Prepayment Interest Surplus, the
Servicing Fee or the Special Servicing Fee pursuant to Section 3.25.
"Underlying Mortgage Loan Purchase Agreements": Each of the Mortgage Loan
Purchase and Sale Agreements between National Realty Finance L.C., National
Realty Funding L.C. and the Transferor and Bridger Commercial Realty Finance
LLC, Bridger Commercial Funding LLC and the Transferor pursuant to which the
applicable Mortgage Loan Seller sells Mortgage Loans to the Transferor.
"Underwriters": Prudential Securities Incorporated and Greenwich NatWest
Limited, as agent for National Westminster Bank, Plc.
"Underwritten Cash Flow": With respect to any Mortgage Loan, the cash flow
available for debt service on such Mortgage Loan for a 12-month period, as
determined by the applicable Mortgage Loan Seller in accordance with the
standards of a prudent commercial mortgage lender based upon recent information
supplied by the related Borrower prior to the origination of such Mortgage Loan,
and adjusted, if determined appropriate by the applicable Mortgage Loan Seller,
to: (a) deduct any non-cash items such as depreciation or amortization; (b)
deduct capital expenditures; (c) reflect a more appropriate occupancy rate; (d)
reflect replacement, capital expenditure and other reserves required by the
related Mortgage Loan Documents; (e) reflect a market rate management fee; (f)
exclude certain percentage rent, delinquent rents and non-recurring income; (g)
reflect an allowance for tenant improvements and leasing commissions; and (h)
reflect such other adjustments determined appropriate by the applicable Mortgage
Loan Seller.
"Unscheduled Payments": With respect to a Mortgage Loan and a Collection
Period, all Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds
payable under such Mortgage Loan, the Repurchase Price of such Mortgage Loan if
it is repurchased or purchased pursuant to Sections 2.3(d) or 2.3(e) and the
price specified in Section 3.18, Section 5.8 and Section 9.1 if such Mortgage
Loan is purchased or repurchased pursuant thereto, draws
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on any letters of credit issued with respect to such Mortgage Loan and any other
payments under or with respect to such Mortgage Loan not scheduled to be made,
including Principal Prepayments (but excluding Prepayment Premiums, Yield
Maintenance Charges and Excess Interest) received during such Collection Period.
"Updated Appraisal": As defined in Section 3.10(a).
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Middle-Tier Regular Interests and amounts held from time to
time in the Distribution Account.
"Voting Right": The portion of the voting rights of all of the Certificates
that is allocated to any Certificate or Class of Certificates. At all times
during the term of this Agreement, the percentage of the Voting Rights assigned
to each Class shall be (a) 0%, in the case of the Class R-I, Class R-II and
Class R-III Certificates, (b) in the case of any of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N and Class O Certificates, a percentage equal to the
product of (x) 99% so long as the Class A-EC1 Notional Balance is greater than
zero, and 100% thereafter and (y) a fraction, the numerator of which is equal to
the aggregate outstanding Certificate Balance of such Class of Certificates and
the denominator of which is equal to the aggregate outstanding Certificate
Balances of all Classes of Certificates, (c) in the case of the Class A-EC1
Certificates, a percentage equal to 0.5% so long as both the Class A-EC1
Notional Balance and the Class A-EC2 Notional Balance are greater than zero, a
percentage equal to 1.0% so long as the Class A-EC1 Notional Balance (but not
the Class A-EC2 Notional Balance) is greater than zero, and 0% thereafter, and
in the case of the Class A-EC2 Certificates, a percentage equal to 0.5% so long
as the Class A-EC2 Notional Balance is greater than zero, and 0% thereafter. For
purposes of determining Voting Rights, the Certificate Balance of any Class
shall be deemed to be reduced by the amount allocated to such Class of any
Appraisal Reductions related to Mortgage Loans as to which Liquidation Proceeds
or other final payment has not yet been received. The Voting Rights of any Class
of Certificates shall be allocated among Holders of Certificates of such Class
in proportion to their respective Percentage Interests, except that any
Certificate registered in the name of the Depositor, the Master Servicer, the
Special Servicer, any Borrower, the Trustee, a Manager or any of their
respective Affiliates shall be deemed not to be outstanding and the Voting
Rights to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any
consent, approval or waiver that specifically relates to any such person has
been obtained (unless such consent, approval or waiver is to an action which
would materially adversely affect in any material respect the interests of the
Certificateholders of any Class, while any of the foregoing persons is the
holder of Certificates aggregating not less than 66-2/3% of the Percentage
Interest of any such Class). The aggregate Voting Rights of Holders of more than
one Class of Certificates shall be equal to the sum of the products of each such
Holder's Voting Rights and the percentage of Voting Rights allocated to the
related Class of Certificates.
"Weighted Average Net Mortgage Rate": With respect to any Interest Accrual
Period, a per annum rate equal to the weighted average of the Net Mortgage Rates
of the
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Mortgage Loans, weighted on the basis of the Scheduled Principal Balances
thereof, as of the first day of such Interest Accrual Period.
"Withheld Amount": With respect to (a) each Distribution Date occurring in
(i) January of each calendar year that is not a leap year and (ii) February of
each calendar year, an amount equal to one day's interest at the Mortgage Rate
(less the Servicing Fee Rate and the Trustee Fee Rate) as of the Due Date on the
respective Scheduled Principal Balance of each Interest Reserve Loan, to the
extent that a Monthly Payment or a P&I Advance is made in respect thereof.
"Workout Fee": With respect to each Corrected Mortgage Loan and for any
Distribution Date, an amount equal to the product of 1.0% and the amount of Net
Collections received by the Master Servicer or the Special Servicer with respect
to such Corrected Mortgage Loan during the related Collection Period so long as
such Corrected Mortgage Loan shall not have again become a Specially Serviced
Mortgage Loan.
"Yield Maintenance Charges": With respect to any Mortgage Loan with a Yield
Maintenance Period, the payments based on a yield maintenance formula generally
equal to the greater of (a) a specific prepayment premium and (b) the present
value, as of the date of such prepayment, of the remaining scheduled payments of
principal and interest on the portion of the Mortgage Loan being prepaid
(including any Balloon Payment or, with respect to any ARD Loans, the remaining
principal balance due on the related Anticipated Repayment Date) determined by
discounting such payments at a yield rate based on U.S. Treasury securities,
less the amount prepaid.
"Yield Maintenance Loan": Any Mortgage Loan as to which the related Note
requires the payment of Yield Maintenance Charges calculated with reference to a
yield maintenance formula.
"Yield Maintenance Period": With respect to each Yield Maintenance Loan,
the period following the origination thereof during which the related Note
requires the payment of Yield Maintenance Charges calculated with reference to a
yield maintenance formula.
SECTION 1.2. CERTAIN CALCULATIONS.
Unless otherwise specified herein or in the Mortgage Loan Documents, the
following provisions shall apply:
(a) All calculations of interest (including interest on the Mortgage Loans)
provided for herein shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
(b) The portion of any Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds or Net REO Proceeds in respect of a Mortgage Loan allocable
to principal, Prepayment Premiums and Yield Maintenance Charges shall equal the
total amount of such proceeds minus (a) first, any portion thereof payable to
the Master Servicer, the Special Servicer or the Trustee pursuant to the
provisions of this Agreement and (b) second, any portion thereof
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equal to interest on the unpaid principal balance of such Mortgage Loan at the
related Mortgage Rate less the related Servicing Fee from the Due Date as to
which interest was last paid by the related Borrower up to but not including the
Due Date in the Collection Period in which such proceeds are received.
Allocation of such amount between principal, Prepayment Premiums and Yield
Maintenance Charges shall be made first, to principal and second, pro rata, to
Prepayment Premiums and Yield Maintenance Charges.
(c) Any Mortgage Loan payment is deemed to be received on the date such
payment is actually received by the Master Servicer, the Special Servicer or the
Trustee; provided, however, that for purposes of calculating distributions on
the Certificates, Principal Prepayments with respect to any Mortgage Loan are
deemed to be received on the date they are applied in accordance with Section
3.1(b) to reduce the outstanding principal balance of such Mortgage Loan on
which interest accrues.
SECTION 1.3. CERTAIN CONSTRUCTIONS.
For purposes of Section 3.10, Section 3.23 and Section 4.6(c), references
to the most or next most subordinate Class of Certificates outstanding at any
time shall mean the most or next most subordinate Class of Certificates then
outstanding as among the Class A-1, Class A-2, Class A-EC1, Class A-EC2, 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, references to the next most
subordinate Class of Middle-Tier Regular Interests outstanding at any time shall
mean the most or next most subordinate Class of Middle-Tier Regular Interests
then outstanding as among the Class A-1-M, Class A-2-M, Class M-IO, Class B-M,
Class C-M, Class D-M, Class E-M, Class F-M, Class G-M, Class H-M, Class J-M,
Class K-M, Class L-M, Class M-M, Class N-M and Class O-M Interests, and
references to the next most subordinate Class of Lower-Tier Regular Interests
outstanding at any time shall mean the most or next most subordinate Class of
Lower-Tier Regular Interests then outstanding as among the Class A-1-L, Class
A-2-L, Class B-L, Class C-L, Class D-L, Class E-L, Class F-L, Class G-L, Class
H-L, Class J-L, Class K-L, Class L-L, Class M-L, Class N-L and Class O-L
Interests, subject in each case to the rules of construction set forth in the
following sentence of this Section 1.3. Each Class of Certificates, Middle-Tier
Regular Interest and Lower-Tier Regular Interest shall be deemed to be
outstanding only to the extent its respective Certificate Balance has not been
reduced to zero or, with respect to the Class A-EC1 Certificates, Class A-EC2
Certificates and Class M-IO Interests, to the extent that the Class A-EC1
Notional Balance, Class A-EC2 Notional Balance, or Class M-IO Notional Balance,
as applicable, has not been reduced to zero.
Unless the context clearly indicates otherwise, references to section
numbers are to sections of this Agreement.
ARTICLE II.
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
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SECTION 2.1. CONVEYANCE AND ASSIGNMENT OF MORTGAGE LOANS.
The Depositor, concurrently with the execution and delivery hereof, does
hereby absolutely sell, transfer, assign, set over and otherwise convey to the
Trustee without recourse (except to the extent herein provided) and the Trustee
does hereby acquire, all the right, title and interest of the Depositor in and
to the Mortgage Loans, including all rights to payment in respect thereof,
except as set forth below, and any security interest thereunder (whether in real
or personal property and whether tangible or intangible) in favor of the
Depositor, and all Reserve Accounts and all other assets included or to be
included in the Trust Fund for the benefit of the Certificateholders. Such
transfer and assignment includes all scheduled payments of interest and
principal, Prepayment Premiums, Yield Maintenance Charges and Excess Interest
due after the Cut-off Date and all payments of interest and principal received
by the Depositor or the Master Servicer on or with respect to the Mortgage Loans
after the Cut-off Date, other than any such payments that are allocable to a
period on or prior to the Cut-off Date. In connection with such transfer and
assignment of all interest and principal due with respect to the Mortgage Loans
after the Cut-off Date, the Depositor shall make a cash deposit to the
Collection Account on the Closing Date in an amount equal to the Cash Deposit.
The Depositor, concurrently with the execution and delivery hereof, does also
hereby absolutely sell, transfer, assign, set over and otherwise convey to the
Trustee without recourse (except to the extent provided herein) all the right,
title and interest of the Depositor in, to and under the Mortgage Loan Purchase
and Sale Agreements (including rights under the Underlying Mortgage Loan
Purchase and Sale Agreements (other than its rights regarding provision of
information under Section 4 thereof and its rights to indemnification pursuant
to Section 5 thereof). The Depositor shall cause the Reserve Accounts to be
transferred to and held in the name of the Master Servicer on behalf of the
Trustee as successor to the Transferor and the Mortgage Loan Sellers, as
applicable.
In connection with the transfer and assignment of Mortgage Loans, the
Depositor does hereby deliver to, and deposit with or cause to be deposited
with, the Custodian, as the duly appointed agent of the Trustee for such
purpose, with a copy to the Master Servicer, the following documents or
instruments with respect to each Mortgage Loan so assigned:
(i) the original of the related Note, endorsed by the applicable Mortgage
Loan Seller in blank or in the following form: "Pay to the order of The Chase
Manhattan Bank, as Trustee, for the registered holders of Prudential
Securities Secured Financing Corporation Commercial Mortgage Pass-Through
Certificates, Series 1999-C2, without recourse", which the Master Servicer or
its designee is authorized to complete and which Note and all endorsements
thereof shall show a complete chain of endorsement from the Originator to the
applicable Mortgage Loan Seller;
(ii) (a) the related original recorded Mortgage or a copy thereof certified
by the related title insurance company, public recording office or closing
agent to be in the form in which executed and submitted for recording, (b)
the related original recorded Assignment of Mortgage from the Originator to
the applicable Mortgage Loan Seller, or a copy thereof certified by the
related title insurance company, public recording office or closing agent to
be in the form in which executed or submitted for recording, and (c) the
related original Assignment of Mortgage executed by the applicable Mortgage
Loan
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Seller in blank, which the Master Servicer or its designee is authorized to
complete (and but for the insertion of the name of the assignee and any
related recording information which is not yet available to the applicable
Mortgage Loan Seller, is in suitable form for recordation in the jurisdiction
in which the related Mortgaged Property is located);
(iii) (a) if the related security agreement is separate from the Mortgage,
the original security agreement or a counterpart thereof, (b) if the security
agreement is not assigned under the Assignments of Mortgage described in
clause (ii) above, the related original assignment of such security agreement
from the Originator to the applicable Mortgage Loan Seller or a counterpart
thereof, and (c) the related original assignment of such security agreement
executed by the applicable Mortgage Loan Seller in blank, which the Master
Servicer or its designee is authorized to complete;
(iv) a copy of each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property, together with a copy of each Form UCC-2 or UCC-3 assignment, if
any, of such financing statement to the applicable Mortgage Loan Seller from
the Originator, and a copy of each Form UCC-2 or UCC-3 assignment, if any, of
such financing statement executed by the applicable Mortgage Loan Seller in
blank, which the Master Servicer or its designee is authorized to complete
(and but for the insertion of the name of the assignee and any related filing
information which is not yet available to the applicable Mortgage Loan
Seller, is in suitable form for filing in the filing office in which such
financing statement was filed);
(v) the related original of the Loan Agreement, if any, relating to such
Mortgage Loan or a counterpart thereof;
(vi) the related original lender's title insurance policy (or the original
pro forma title insurance policy), together with any endorsements thereto;
(vii) if any related Assignment of Leases, Rents and Profits is separate
from the Mortgage, (a) the original recorded Assignment of Leases, Rents and
Profits or a copy thereof certified by the related title insurance company,
public recording office or closing agent to be in the form in which executed
and submitted for recording, (b) the related original recorded reassignment
of such instrument, if any, from the Originator to the applicable Mortgage
Loan Seller or a copy thereof certified by the related title insurance
company, public recording office or closing agent to be in the form in which
executed and submitted for recording, and (c) the related original
reassignment of such instrument, if any, executed by the applicable Mortgage
Loan Seller in blank, which the Master Servicer or its designee is authorized
to complete (and but for the insertion of the name of the assignee and any
related recording information which is not yet available to the applicable
Mortgage Loan Seller, is in suitable form for recordation in the jurisdiction
in which the related Mortgaged Property is located) (any of which
reassignments, however, may be included in a related Assignment of Mortgage
and need not be a separate instrument);
(viii) if any related assignment of contracts is separate from the
Mortgage, the original assignment of
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contracts or a counterpart thereof, and if the assignment of contracts is not
assigned under the Assignments of Mortgage described in clause (ii) above,
the related original reassignment of such instrument from the Originator to
the applicable Mortgage Loan Seller or a counterpart thereof and the related
original reassignment of such instrument executed by the applicable Mortgage
Loan Seller in blank, which the Master Servicer or its designee is authorized
to complete;
(ix) with respect to the related Reserve Accounts, if any, a copy of the
original of any separate agreement with respect thereto between the related
Borrower and the Originator;
(x) the original of any other written agreement, instrument or document
securing such Mortgage Loan, including, without limitation, originals of any
guarantees with respect to such Mortgage Loan or the original letter of
credit, if any, with respect thereto, together with any and all amendments
thereto, including, without limitation, any amendment which entitles the
Master Servicer to draw upon such letter of credit on behalf of the Trustee
for the benefit of the Certificateholders, and the original of each
instrument or other item of personal property given as security for a
Mortgage Loan possession of which by a secured party is necessary to a
secured party's valid, perfected, first priority security interest therein,
together with all assignments or endorsements thereof necessary to entitle
the Master Servicer to enforce a valid, perfected, first priority security
interest therein on behalf of the Trustee for the benefit of the
Certificateholders;
(xi) with respect to the related Reserve Accounts, if any, (a) a copy of
the UCC-1 financing statements, if any, submitted for filing with respect to
the applicable Originator's security interest in such Reserve Accounts and
all funds contained therein, (b) a copy of each Form UCC-2 or UCC-3
assignment, if any, of such financing statement from the Originator to the
applicable Mortgage Loan Seller, and (c) a copy of each Form UCC-2 or UCC-3
assignment, if any, of such financing statement executed by the applicable
Mortgage Loan Seller in blank which the Master Servicer or its designee is
authorized to complete (and but for the insertion of the name of the assignee
and any related filing information which is not yet available to the
applicable Mortgage Loan Seller is in suitable form for filing in the filing
office in which such financing statement was filed); and
(xii) copies of any and all amendments, modifications and supplements to,
and waivers related to, any of the foregoing.
On or promptly following the Closing Date, the Master Servicer shall, to
the extent possession thereof has been delivered to it, complete any Assignment
of Mortgage delivered pursuant to clause (ii) above, any assignment of security
agreement delivered pursuant to clause (iii) above, any Form UCC-2 or UCC-3
assignment delivered pursuant to clause (iv) and (xi) above, any reassignment of
Assignment of Leases, Rents and Profits delivered pursuant to clause (vii) above
and any reassignment of assignment of contracts delivered pursuant to clause
(viii) above, in each case, by inserting the name of the Trustee as assignee and
(1) recording, (a) each Assignment of Mortgage referred to in Section 2.1(ii)
which has not yet been submitted for recordation and (b) each reassignment of
Assignment of Leases, Rents and Profits
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referred to in Section 2.1(vii) (if not otherwise included in the related
Assignment of Mortgage) which has not yet been submitted for recordation; and
(2) filing, each UCC-2 or UCC-3 financing statement assignment referred to in
Section 2.1(iv) and (xi) which has not yet been submitted for filing, and upon
filing such financing statements the Master Servicer will promptly deliver to
the Custodian the related UCC-1, UCC-2 or UCC-3 with evidence of filing thereon.
On or promptly following the Closing Date, the Trustee or Custodian, as
applicable, shall, to the extent possession thereof has been delivered to it,
complete the endorsement of the Note by inserting the name of the Trustee as
endorsee. The Master Servicer shall, upon delivery, promptly submit for
recording or filing, as the case may be, in the appropriate public recording or
filing office, each such document. In the event that any such document is lost
or returned unrecorded because of a defect therein, the Master Servicer shall
use its reasonable best efforts to promptly prepare a substitute document for
signature by the Depositor, Mortgage Loan Sellers or Transferor, as applicable,
and thereafter the Master Servicer shall cause each such document to be duly
recorded. The Master Servicer shall, promptly upon receipt of the original of
each such recorded document (and in no event later than five Business Days
following such receipt), deliver such original to the Custodian.
If the Depositor cannot deliver, or cause to be delivered, as to any of the
Mortgage Loans, the original or a copy of any of the documents and/or
instruments referred to in clauses (ii)(a) or (b), (iv)(a) or (b), (vii)(a) or
(b), (xi)(a) or (b) and (xii), with (if appropriate) evidence of recording or
filing, as the case may be, thereon, solely because of a delay caused by the
public recording or filing office where such document or instrument was
submitted for recording or filing, the delivery requirements set forth above
shall be deemed to have been satisfied as to such missing document or
instrument, and such missing document or instrument shall be deemed to have been
included in the related Mortgage File, provided that the Depositor has delivered
or caused to be delivered to the Trustee or its designee on or before the
Closing Date a copy of such document or instrument (without evidence of
recording or filing thereon, but certified (which certificate may relate to
multiple documents and/or instruments) by the Seller to be a true and complete
copy of the original thereof submitted for recording or filing, as the case may
be), and the Depositor shall deliver or cause to be delivered to or at the
direction of the Trustee or its designee, promptly following the receipt
thereof, the original of such missing document or instrument (or a copy thereof)
with (if appropriate) evidence of recording or filing, as the case may be,
thereon. If the Depositor cannot deliver, or cause to be delivered, as to any of
the Mortgage Loans, the original of any of the documents referred to in clause
(ii)(a) or (b) or (vii)(a) or (b) solely because the public recording office
retains the original assignment, then the Depositor shall deliver or cause to be
delivered to the Trustee or its designee a copy of the recorded original. If the
Depositor cannot deliver, or cause to be delivered, as to any of the Mortgage
Loans, the original or a copy of the related lender's title insurance policy
referred to in clause (vi) solely because such policy has not yet been issued,
the delivery requirements set forth above shall be deemed to be satisfied as to
such missing document, and such missing document shall be deemed to have been
included in the related Mortgage File, provided that the Depositor has delivered
or caused to be delivered to the Trustee or its designee on or before the
Closing Date a commitment for title insurance "delivered" at the closing of such
Mortgage Loan, and the Depositor shall deliver to or at the direction of the
Trustee or its designee, promptly following the receipt thereof, the original
lender's title insurance policy (or a copy thereof).
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Notwithstanding the immediately preceding paragraph, the failure to deliver
the originals or copies of any of the documents or instruments referred to in
clause (c)(ii)(a) or (b), (iv)(a) or (b), (vii)(a) or (b), (xi)(a) or (b) and
(xii) within 120 days after the Closing Date shall cause the related Mortgage
Loan to become subject to repurchase under Section 2.3(e) hereof.
All original documents relating to the Mortgage Loans which are not
delivered to the Custodian are and shall be held by the Trustee or the Master
Servicer, as the case may be, in trust for the benefit of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Trustee Mortgage File,
such document shall be delivered promptly to the Custodian.
The Master Servicer shall, as to each Mortgage Loan that is secured by the
interest of the related Mortgagor under a ground lease, at its own expense,
promptly (and in any event within 45 days of the Closing Date) notify the
related ground lessor of the transfer of such Mortgage Loan to the Trust Fund
pursuant to this Agreement and inform such ground lessor that any notices of
default under the related ground lease should thereafter be forwarded to the
Master Servicer.
SECTION 2.2. ACCEPTANCE BY THE CUSTODIAN AND THE TRUSTEE.
By its execution and delivery of this Agreement, the Trustee acknowledges
the assignment to it of the Mortgage Loans in good faith without notice of
adverse claims and declares that the Custodian holds and will hold such
documents and all others delivered to it constituting the Trustee Mortgage File
(to the extent the documents constituting the Trustee Mortgage File are actually
delivered to the Custodian) for any Mortgage Loan assigned to the Trustee
hereunder, the other assets comprising the Lower-Tier REMIC, the assets
comprising the Middle-Tier REMIC and the assets comprising the Upper-Tier REMIC,
in trust, upon the conditions herein set forth, for the use and benefit of all
present and future Certificateholders, and will hold the assets of the Trust
Fund that are not a part of the Upper-Tier REMIC, Middle-Tier REMIC or
Lower-Tier REMIC (such assets, the "Grantor Trust Assets") in trust, upon the
conditions set forth herein, for the use and benefit of present and future Class
O Certificateholders.
Upon execution and delivery of this Agreement, the Trustee shall examine
the Mortgage Files in its possession, and shall deliver to the Depositor, the
Master Servicer, the Special Servicer and each Seller a certification stating,
(i) as to each Mortgage Loan listed in the Mortgage Loan Schedule, except as may
be specified in the schedule of exceptions to Mortgage File delivery attached
thereto, that (A) all documents specified in clause (i) of the definition of
"Mortgage File" are in its possession, (B) such documents have been reviewed by
it and have not been 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."
The Trustee agrees to review each Trustee Mortgage File within 90 days
after the later of (a) the Trustee's receipt of such Trustee Mortgage File or
(b) execution and delivery of this Agreement, to ascertain that all documents
referred to in Section 2.1 above (as identified to it
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in writing by the Depositor or the Master Servicer) and any original recorded
documents referred to in the last sentence of Section 2.1 to be included in the
delivery of a Trustee Mortgage File, have been received, have been executed,
appear on their face to be what they purport to be, purport to be recorded or
filed (as applicable) and have not been torn, mutilated or otherwise defaced,
and that such documents relate to the Mortgage Loans identified in the Mortgage
Loan Schedule. In so doing, the Trustee may rely on the purported due execution
and genuineness of any such document and on the purported genuineness of any
signature thereon. If, at the conclusion of such review, any document or
documents constituting a part of a Trustee Mortgage File have not been executed
or received, have not been recorded or filed (if required), are unrelated to the
Mortgage Loans identified in the Mortgage Loan Schedule, appear on their face
not to be what they purport to be or have been torn, mutilated or otherwise
defaced, the Trustee shall promptly so notify the Depositor, the Transferor and
the Mortgage Loan Sellers by providing a written report, setting forth, for each
affected Mortgage Loan, with particularity, the nature of the defective or
missing document. Neither the Master Servicer nor the Trustee shall be
responsible for any loss, cost, damage or expense to the Trust Fund resulting
from any failure to receive any document constituting a portion of a Trustee
Mortgage File noted on such a report or for any failure by the Depositor to use
its reasonable best efforts to deliver any such document.
In reviewing any Trustee Mortgage File pursuant to the preceding paragraph
or Section 2.1, the Trustee will have no responsibility to determine whether any
document or opinion is legal, valid, binding or enforceable, whether the text of
any assignment or endorsement is in proper or recordable form (except, if
applicable, to determine whether the Trustee is the assignee or endorsee),
whether any document has been recorded in accordance with the requirements of
any applicable jurisdiction, whether a blanket assignment is permitted in any
applicable jurisdiction, or whether any Person executing any document or
rendering any opinion is authorized to do so or whether any signature thereon is
genuine.
The Trustee shall hold that portion of the Trust Fund delivered to the
Trustee consisting of "instruments" (as such term is defined in Section 9-105(i)
of the Uniform Commercial Code as in effect in New York or Texas on the date
hereof) in New York or Texas and, except as set forth in Section 3.11 or as
otherwise specifically provided in this Agreement, shall not remove such
instruments from New York or Texas unless it receives an Opinion of Counsel
(obtained and delivered at the expense of the Person requesting the removal of
such instruments from New York or Texas) that in the event the transfer of the
Mortgage Loans to the Trustee is deemed not to be a sale, after such removal,
the Trustee will possess a first priority perfected security interest in such
instruments.
SECTION 2.3. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(ii) The Depositor has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to
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execute, deliver and perform this Agreement and all the transactions
contemplated hereby, including, but not limited to, the power and authority
to sell, assign and transfer the Mortgage Loans in accordance with this
Agreement;
(iii) This Agreement has been duly and validly authorized, executed and
delivered by the Depositor and assuming the due authorization, execution and
delivery of this Agreement by each other party hereto, this Agreement and all
of the obligations of the Depositor hereunder are the legal, valid and
binding obligations of the Depositor, enforceable in accordance with the
terms of this Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership, moratorium
or other laws relating to or affecting creditors' rights generally, or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and the performance of
its obligations hereunder by the Depositor will not conflict with any
provision of its certificate of incorporation or bylaws, or any law or
regulation to which the Depositor is subject, or conflict with, result in a
breach of or constitute a default under (or an event which, with notice or
lapse of time or both, would constitute a default under) any of the terms,
conditions or provisions of any agreement or instrument to which the
Depositor is a party or by which it is bound, or any order or decree
applicable to the Depositor, or result in the creation or imposition of any
lien on any of the Depositor's assets or property which would materially and
adversely affect the ability of the Depositor to carry out the transactions
contemplated by this Agreement. The Depositor has obtained any consent,
approval, authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of this
Agreement;
(v) The certificate of incorporation of the Depositor provides that the
Depositor is permitted to engage in only the following activities:
(A) to acquire, own, hold, sell, transfer, assign, pledge, finance,
refinance and otherwise deal with (I) loans secured by first or second
mortgages, deeds of trust or similar liens on residential, commercial or
mixed commercial and residential properties or shares issued by private
non-profit housing corporations, (II) any participation interest in or
security based on or backed by any of the foregoing (the loans described in
clause (A)(I) and the participation interests described in clause (A)(II),
collectively, "mortgage loans"), or (III) various receivables including,
but not limited to, retail automotive installment sale contracts or loans
or automotive leases, consumer or commercial loans or leases, credit card
accounts, mobile home loans or insurance policy loans ("receivables");
(B) to authorize and issue one or more series (each, a "series") of
pass-through securities ("certificates") pursuant to pooling and servicing
agreements (each, a "pooling and servicing agreement"), each of which
series (I) represents ownership interests in mortgage loans or receivables,
related property and/or collections in respect thereof, and (II) may be
structured to contain one or more
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classes or certificates, each Class having the characteristics specified in
the related pooling and servicing agreement, and to acquire, own, hold,
sell, transfer, assign, pledge, finance or refinance one or more
certificates or classes of certificates of any series; and
(C) to engage in any acts and activities and exercise any powers
permitted to corporations under the laws of the State of Delaware which are
incidental to, or connected with, the foregoing, and necessary, suitable or
convenient to accomplish any of the foregoing;
(vi) There is no action, suit or proceeding pending against the Depositor
in any court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the ability of the Depositor to
carry out its obligations under this Agreement; and
(vii) The Trustee, if not the owner of the Mortgage Loans, will have a
valid and perfected security interest of first priority in each of the
Mortgage Loans and any proceeds thereof.
(b) The Depositor hereby represents and warrants with respect to each
Mortgage Loan that:
(i) The Depositor, as of the execution and delivery of this Agreement, has
good and marketable title to such Mortgage Loan and is transferring such
Mortgage Loan free and clear of any and all liens, pledges, charges or
security interests of any nature encumbering such Mortgage Loan created by
it; and
(ii) No claims have been made by the Depositor under the related lender's
title insurance policy, and the Depositor has not done, by act or omission,
anything which would impair the coverage of such lender's title insurance
policy.
(c) It is understood and agreed that the representations and warranties set
forth in this Section 2.3 shall survive delivery of the respective Trustee
Mortgage Files to the Trustee until the termination of this Agreement, and shall
inure to the benefit of the Certificateholders, the Trustee, the Master Servicer
and the Special Servicer.
(d) Upon discovery by the Depositor, the Custodian, the Master Servicer,
the Special Servicer or the Trustee that any Mortgage Loan fails to constitute a
Qualified Mortgage, such Person shall give prompt notice thereof to the
Depositor, the Transferor and the applicable Mortgage Loan Seller, as
applicable, and the Trustee shall request the Transferor or Mortgage Loan
Seller, as applicable, to correct such condition or repurchase such Mortgage
Loan at the Repurchase Price within 85 days of discovery of such failure; it
being understood and agreed that none of such Persons has an obligation to
conduct any investigation with respect to such matters.
(e) Upon discovery by the Depositor, the Custodian, the Master Servicer,
the Special Servicer or the Trustee of a breach of any representation or
warranty of the Transferor set forth in Section 2(b) of Mortgage Loan Purchase
and Sale Agreement I, or a breach of a
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representation or warranty of the applicable Mortgage Loan Seller set forth in
Section 2(b) of Mortgage Loan Purchase Agreement II, or that any document
required to be included in the Trustee Mortgage File with respect to a Mortgage
Loan does not conform to the requirements of Section 2.1, such Person shall give
prompt notice thereof to the Depositor, the Transferor and the applicable
Mortgage Loan Seller, and the Trustee shall request that the Transferor or the
applicable Mortgage Loan Seller, to the extent the Transferor or Mortgage Loan
Seller is obligated to cure such breach in all material respects or repurchase
the related Mortgage Loan under the terms of Mortgage Loan Purchase and Sale
Agreement I or Mortgage Loan Purchase Agreement II, either to cure such breach
or repurchase such Mortgage Loan at the Repurchase Price within 85 days of the
receipt of notice of such breach, as and to the extent to which the same may be
extended to 180 days, all pursuant to and as more particularly described in the
Mortgage Loan Purchase and Sale Agreements; it being understood and agreed that
none of the Depositor, the Custodian, the Master Servicer, the Special Servicer
and the Trustee has an obligation to conduct any investigation with respect to
such matters (except, in the case of the Trustee Mortgage Files, to the extent
provided in Sections 2.1 and 2.2).
(f) Upon receipt by the Master Servicer from the Depositor, the Transferor
or the applicable Mortgage Loan Seller of the Repurchase Price for a repurchased
Mortgage Loan, the Master Servicer shall deposit such amount in the Collection
Account, and the Trustee, pursuant to Section 3.11, shall, upon receipt of a
certificate of a Servicing Officer certifying as to the receipt by the Master
Servicer of the Repurchase Price and the deposit of the Repurchase Price into
the Collection Account pursuant to this Section 2.3(f), together with a Request
for Release, release or cause to be released to the Depositor, the Transferor or
the applicable Mortgage Loan Seller, as applicable, the related Trustee Mortgage
File and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, representation or warranty, as shall be prepared
by the Master Servicer to vest in the Depositor, the Transferor or the
applicable Mortgage Loan Seller, as applicable, any Mortgage Loan released
pursuant hereto, and any rights of the Depositor in, to and under the related
Mortgage Loan Purchase and Sale Agreement as it related to such Mortgage Loan
that were initially transferred to the Trust Fund under Section 2.1, and the
Trustee and the Master Servicer shall have no further responsibility with regard
to such Trustee Mortgage File or the related Mortgage Loan.
(g) In the event that the Transferor or the applicable Mortgage Loan Seller
incurs any expense in connection with curing a breach of a representation or
warranty pursuant to Sections 2.3(d) and 2.3(e) which also constitutes a default
under the related Mortgage Loan, then from and after the time when such Mortgage
Loan has been released from the Trust Fund by the Trustee in connection with the
repurchase thereof by the Transferor, the Transferor or the applicable Mortgage
Loan Seller shall have a right, and the Transferor or the applicable Mortgage
Loan Seller shall be subrogated to the rights of the Trustee, as successor to
the mortgagee, to recover the amount of such expenses from the related Borrower.
The Master Servicer shall use reasonable efforts, at the expense of the
Transferor or related Mortgage Loan Seller, as the case may be, in recovering,
or assisting the Transferor or the applicable Mortgage Loan Seller in
recovering, from such Borrower the amount of any such expenses.
(h) In the event that any litigation is commenced which alleges facts
which, in the judgment of the Depositor, could constitute a breach of any of the
Depositor's representations
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and warranties relating to the Mortgage Loans, the Depositor hereby reserves the
right to conduct the defense of such litigation at its expense.
(i) The Master Servicer shall use its reasonable best efforts, in
accordance with the Servicing Standard, to enforce the obligations of the
Transferor and the applicable Mortgage Loan Seller to cure or repurchase any
Mortgage Loan which is discovered to be a "Defective Mortgage Loan" (as such
term is defined in the Mortgage Loan Purchase and Sale Agreements or any
Underlying Mortgage Loan Purchase and Sale Agreement) under the terms of any
Mortgage Loan Purchase and Sale Agreement or any Underlying Mortgage Loan
Purchase and Sale Agreement.
SECTION 2.4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MASTER
SERVICER AND SPECIAL SERVICER.
(a) The Master Servicer hereby represents, warrants and covenants that as
of the Closing Date, or as of such date specifically provided herein:
(i) The Master Servicer is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of Missouri
and has all licenses necessary to carry on its business as now being
conducted or is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan in accordance with the terms of this
Agreement;
(ii) The Master Servicer has the full corporate power, authority and legal
right to execute and deliver this Agreement and to perform in accordance
herewith; the execution and delivery of this Agreement by the Master Servicer
and its performance and compliance with the terms of this Agreement do not
violate the Master Servicer's articles of organization or operating agreement
or constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material contract, agreement or other instrument to which the Master Servicer
is a party or which may be applicable to the Master Servicer or any of its
assets, which default or breach would have consequences that would materially
and adversely affect the financial condition or operations of the Master
Servicer or its properties taken as a whole or impair the ability of the
Trust Fund to realize on the Mortgage Loans;
(iii) This Agreement has been duly and validly authorized, executed and
delivered by the Master Servicer and, assuming due authorization, execution
and delivery by the other parties hereto, constitutes a legal, valid and
binding obligation of the Master Servicer, enforceable against it in
accordance with the terms of this Agreement, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting creditors'
rights generally, or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
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(iv) The Master Servicer is not in violation of, and the execution and
delivery of this Agreement by the Master Servicer and its performance and
compliance with the terms of this Agreement will not constitute a violation
with respect to, any order or decree of any court or any order or regulation
of any federal, state, municipal or governmental agency having jurisdiction,
or result in the creation or imposition of any lien, charge or encumbrance
which, in any such event, would have consequences that would materially and
adversely affect the financial condition or operations of the Master Servicer
or its properties taken as a whole or impair the ability of the Trust Fund to
realize on the Mortgage Loans;
(v) There is no action, suit or proceeding pending or, to the knowledge of
the Master Servicer, threatened, against the Master Servicer which, either in
any one instance or in the aggregate, would result in any material adverse
change in the business, operations or financial condition of the Master
Servicer or would, if adversely determined, materially impair the ability of
the Master Servicer to perform under the terms of this Agreement or which
would draw into question the validity of this Agreement or the Mortgage Loans
or of any action taken or to be taken in connection with the obligations of
the Master Servicer contemplated herein;
(vi) No consent, approval, authorization or order of, or registration or
filing with, or notice to any court or governmental agency or body is
required for the execution, delivery and performance by the Master Servicer
of, or compliance by the Master Servicer with, this Agreement or, if
required, such approval has been obtained prior to the Cut-off Date, except
to the extent that the failure of the Master Servicer to be qualified as a
foreign corporation or a limited liability company, as applicable or licensed
in one or more states is not necessary for the enforcement of the Mortgage
Loans;
(vii) The Master Servicer is maintaining with a Qualified Insurer a
fidelity bond and errors and omissions coverage in accordance with the
requirements of Section 3.8(c) hereof; and
(viii) The Master Servicer hereby covenants, to its best knowledge, which
may be based upon information obtained from vendors who have responded to the
Master Servicer's supplier inquiries and/or from information obtained by the
Master Servicer from sources which the Master Servicer reasonably believes
are reliable, that by August 31, 1999, any custom-made software or hardware
designed or purchased or licensed by Master Servicer, which Master Servicer
has identified as being mission-critical to its business for purposes of its
operations and for purposes of compiling, reporting or generating data
required by this Agreement, will be capable of accurately performing
calculations or other processing with respect to dates after August 31, 1999
as a result of the changing of the date from 1999 to 2000, including leap
year calculations, when used for the purpose for which it was intended,
assuming that all other products, including other software or hardware, when
used in combination with such software or hardware designed or purchased or
licensed by the Master Servicer properly exchange date data.
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(b) The Special Servicer hereby represents, warrants and covenants that as
of the Closing Date, or as of such date specifically provided herein:
(i) The Special Servicer is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of Missouri
and has all licenses necessary to carry on its business as now being
conducted or is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Specially Serviced Mortgage Loan in accordance with
the terms of this Agreement;
(ii) The Special Servicer has the full corporate power, authority and legal
right to execute and deliver this Agreement and to perform in accordance
herewith; the execution and delivery of this Agreement by the Special
Servicer and its performance and compliance with the terms of this Agreement
do not violate the Special Servicer's certificate of articles of organization
or operating agreement or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other instrument
to which the Special Servicer is a party or which may be applicable to the
Special Servicer or any of its assets, which default or breach would have
consequences that would materially and adversely affect the condition
(financial or otherwise) or operations of the Special Servicer or its
properties, taken as a whole, or impair the ability of the Trust Fund to
realize on the Specially Serviced Mortgage Loans;
(iii) This Agreement has been duly and validly authorized, executed and
delivered by the Special Servicer and, assuming due authorization, execution
and delivery by the other parties hereto, constitutes a legal, valid and
binding obligation of the Special Servicer, enforceable against it in
accordance with the terms of this Agreement, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting creditors'
rights generally, or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
(iv) The Special Servicer is not in violation of, and the execution and
delivery of this Agreement by the Special Servicer and its performance and
compliance with the terms of this Agreement will not constitute a violation
with respect to, any order or decree of any court or any order or regulation
of any federal, state, municipal or governmental agency having jurisdiction,
or result in the creation or imposition of any lien, charge or encumbrance
which, in any such event, would have consequences that would materially and
adversely affect the condition (financial or otherwise) or operations of the
Special Servicer or its properties taken as a whole or impair the ability of
the Trust Fund to realize on the Specially Serviced Mortgage Loans;
(v) There is no action, suit or proceeding pending or, to the knowledge of
the Special Servicer, threatened, against the Special Servicer which, either
in any one instance or in the aggregate, would result in any material adverse
change in the business, operations or financial condition of the Special
Servicer or would, if adversely
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determined, materially impair the ability of the Special Servicer to perform
under the terms of this Agreement or which would draw into question the
validity of this Agreement or the Specially Serviced Mortgage Loans or of any
action taken or to be taken in connection with the obligations of the Special
Servicer contemplated herein;
(vi) No consent, approval, authorization or order of, or registration or
filing with, or notice to any court or governmental agency or body is
required for the execution, delivery and performance by the Special Servicer
of, or compliance by the Special Servicer with, this Agreement or, if
required, such approval has been obtained prior to the Cut-off Date, except
to the extent that the failure of the Special Servicer to be qualified as a
foreign corporation or limited liability company, as applicable or licensed
in one or more states is not necessary for the enforcement of the Specially
Serviced Mortgage Loans;
(vii) The Special Servicer is maintaining with a Qualified Insurer a
fidelity bond and errors and omissions coverage in accordance with the
requirements of Section 3.8(c) hereof;
(viii) The Special Servicer hereby covenants, to its best knowledge, which
may be based upon information obtained from vendors who have responded to the
Special Servicer's supplier inquiries and/or from information obtained by the
Special Servicer from sources which the Special Servicer reasonably believes
are reliable, that by August 31, 1999, any custom-made software or hardware
designed or purchased or licensed by Special Servicer, which Special Servicer
has identified as being mission-critical to its business for purposes of its
operations and for purposes of compiling, reporting or generating data
required by this Agreement, will be capable of accurately performing
calculations or other processing with respect to dates after August 31, 1999
as a result of the changing of the date from 1999 to 2000, including leap
year calculations, when used for the purpose for which it was intended,
assuming that all other products, including other software or hardware, when
used in combination with such software or hardware designed or purchased or
licensed by the Special Servicer properly exchange date data.
(c) It is understood and agreed that the representations and warranties set
forth in this Section shall survive delivery of the Trustee Mortgage Files to
the Trustee or the Custodian on behalf of the Trustee until the termination of
this Agreement, and shall inure to the benefit of the Trustee and the Depositor.
Upon discovery by the Depositor, the Master Servicer, the Special Servicer or a
Responsible Officer of the Trustee (or upon written notice thereof from any
Certificateholder) of a breach of any of the representations and warranties set
forth in this Section which materially and adversely affects the interests of
the Certificateholders, the Master Servicer, the Special Servicer or the Trustee
with respect to any Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties hereto.
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SECTION 2.5. EXECUTION AND DELIVERY OF CERTIFICATES; ISSUANCE OF LOWER-TIER
REGULAR INTERESTS AND MIDDLE-TIER REGULAR INTERESTS.
The Trustee acknowledges the assignment to it of the Mortgage Loans and the
delivery to it or the Custodian of the Trustee Mortgage Files (to the extent the
documents constituting the Trustee Mortgage Files are actually delivered to the
Custodian), subject to the provisions of Section 2.1 and Section 2.2 and,
concurrently with such delivery, (i) acknowledges the issuance of and hereby
declares that it holds the Lower-Tier Regular Interests on behalf of the
Middle-Tier REMIC and the Class R-II Certificateholders, and holds the
Middle-Tier Regular Interests on behalf of the Upper-Tier REMIC and the Holders
of the Regular Certificates and the Class R-I Certificates and (ii) has caused
to be executed and caused to be authenticated and delivered to or upon the order
of the Depositor, or as directed by the terms of this Agreement, Class A-1,
Class A-2, Class A-EC1, Class A-EC2, 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 in authorized denominations, in
each case registered in the names set forth in such order of the Depositor or as
so directed in this Agreement and duly authenticated by the Authenticating
Agent, which Certificates (described in the preceding clause (ii) other than the
Class R-II Certificates and Class R-III Certificates and, in the case of the
Class O Certificates, only to the extent such Certificates represent the Class O
REMIC Interest) evidence ownership of the Upper-Tier REMIC and (iii)
acknowledges the issuance of the component interest in the Class O Certificates
representing beneficial ownership of the Grantor Trust Assets (the "Class O
Grantor Trust Interest") in exchange for the Grantor Trust Assets, which
component interest, together with the Regular Certificates, the Class R-I
Certificates, the Class R-II Certificates and the Class R-III Certificates,
evidence ownership of the entire Trust Fund.
SECTION 2.6. MISCELLANEOUS REMIC PROVISIONS.
(a) The Class A-1-L, Class A-2-L, Class B-L, Class C-L, Class D-L, Class
E-L, Class F-L, Class G-L, Class H-L, Class J-L, Class K-L, Class L-L, Class
M-L, Class N-L and Class O-L Interests are hereby designated as "regular
interests" in the Lower-Tier REMIC within the meaning of Section 860G(a)(1) of
the Code, and the Class R-III Certificates are hereby designated as the sole
Class of "residual interests" in the Lower-Tier REMIC within the meaning of
Section 860G(a)(2) of the Code. The Class A-1-M, Class A-2-M, Class B-M, Class
C-M, Class D-M, Class E-M, Class F-M, Class G-M, Class H-M, Class J-M, Class
K-M, Class L-M, Class M-M, Class N-M, Class O-M and the Class M-IO Interests are
hereby designated as "regular interests" in the Middle-Tier REMIC within the
meaning of Section 860G(a)(1) of the Code, and the Class R-II Certificates are
hereby designated as the sole class of "residual interests" in the Middle-Tier
REMIC, within the meaning of Section 860G(a)(2) of the Code. The Class A-1,
Class A-2, Class A-EC1, Class A-EC2, 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 the Class O
REMIC Interest represented by the Class O Certificates are hereby designated as
"regular interests" in the Upper-Tier REMIC within the meaning of Section
860G(a)(1) of the Code and the Class R-I Certificates are hereby designated as
the sole Class of "residual interests" in the Upper-Tier REMIC within the
meaning of Section 860G(a)(2) of the Code. The Closing Date is hereby designated
as the "Startup Day" of the Lower-Tier REMIC, the Middle-Tier REMIC and the
Upper-Tier REMIC within the meaning of Section 860G(a)(9) of the Code. The
"latest possible maturity date" of the
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Lower-Tier Regular Interests, Middle-Tier Regular Interests and the Regular
Certificates for purposes of Code Section 860G(a)(1) is the Scheduled Final
Distribution Date of the Class O Certificates. The initial Certificate Balance
of each Class of Lower-Tier Regular Interests and the Certificate Balance of
each Class of Middle-Tier Regular Interests other than the Class M-IO Interest
is equal to the Certificate Balance of the Related Certificates. The
pass-through rate of each Class of Lower-Tier Regular Interests and each Class
of Middle-Tier Regular Interests is a per annum rate equal to the Lower-Tier
Pass-Through Rate or the Middle-Tier Pass-Through Rate, as applicable, with
respect to such Class.
(b) None of the Mortgage Loan Sellers, Transferor, Depositor, Trustee,
Master Servicer or Special Servicer shall enter into any arrangement by which
the Trust Fund will receive a fee or other compensation for services other than
as specifically contemplated herein.
(c) The Trustee shall not (to the extent within its control) permit the
creation of any "interests" (within the meaning of Treasury regulation Section
1.860D-1(b)(1)) in any of the REMICs other than the Lower-Tier Interests, the
Middle-Tier Interests and the interests evidenced by the Certificates.
(d) The Grantor Trust Assets shall be held by the Trustee for the benefit
of the Holders of the Class O Certificates, and such Class O Certificates, in
the aggregate, will evidence 100% beneficial ownership of such Grantor Trust
Assets from and after the Closing Date. It is intended that the portion of the
Trust Fund consisting of the Grantor Trust Assets will be treated as a grantor
trust for federal income tax purposes, and each of the parties to this Agreement
agrees that it will not take any action that is inconsistent with establishing
or maintaining such treatment. The Trustee shall, at all times any Class of
Certificates remains outstanding, hold the Grantor Trust Assets separate and
apart from the assets of the Lower-Tier REMIC, the Middle-Tier REMIC and the
Upper-Tier REMIC.
SECTION 2.7. DOCUMENTS NOT DELIVERED TO CUSTODIAN.
All original documents relating to the Mortgage Loans which are part of the
Master Servicer Mortgage File are and shall be held by the Master Servicer, in
trust for the benefit of the Trustee on behalf of the Certificateholders. The
legal ownership of all records and documents with respect to each Mortgage Loan
prepared by or which come into the possession of the Master Servicer shall
immediately vest in the Trustee, in trust for the benefit of the
Certificateholders.
ARTICLE III.
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
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SECTION 3.1. MASTER SERVICER TO ACT AS MASTER SERVICER; SPECIAL SERVICER TO
ACT AS SPECIAL SERVICER; ADMINISTRATION OF THE MORTGAGE LOANS.
(a) The Master Servicer and the Special Servicer, each as an independent
contractor, shall service and administer the Mortgage Loans (or in the case of
the Special Servicer, the Specially Serviced Mortgage Loans and the REO Mortgage
Loans) on behalf of the Trust Fund solely in the best interests of, and for the
benefit of, all of the Certificateholders and the Trust Fund, in accordance with
the terms of this Agreement and the respective Mortgage Loans. In furtherance
of, and to the extent consistent with, the foregoing, and except to the extent
that this Agreement provides for a contrary specific course of action, each of
the Master Servicer and the Special Servicer shall service and administer each
Mortgage Loan (x) in the same manner in which, and with the same care, skill,
prudence and diligence with which, it services and administers similar mortgage
loans for itself and for other third-party portfolios, giving due consideration
to customary and usual standards of practice of prudent institutional commercial
mortgage loan servicers used with respect to loans comparable to the Mortgage
Loans, or (y) in the same manner in which, and with the same care, skill,
prudence and diligence with which, it services and administers similar mortgage
loans which it owns, whichever standard of care is higher, and taking into
account its other obligations under this Pooling and Servicing Agreement and
with the purpose of maximizing the estimated net present value of each Mortgage
Loan, but without regard to:
(i) any other relationship that the Master Servicer, the Special Servicer,
any sub-servicer, the Depositor or the Trustee, or any Affiliate of any of
them may have with the related Borrower or any Affiliate of such Borrower;
(ii) the ownership of any Certificate by the Master Servicer, the Special
Servicer or any Affiliate of any of them;
(iii) the Master Servicer's or the Trustee's obligation to make Advances or
to incur servicing expenses with respect to such Mortgage Loan;
(iv) the Master Servicer's, the Special Servicer's or any sub-servicer's
right to receive compensation for its services hereunder or with respect to
any particular transaction;
(v) the ownership or servicing or management for others by the Master
Servicer, the Special Servicer or any sub-servicer of any other mortgage
loans or property; or
(vi) any obligation of the Master Servicer to pay any indemnity with
respect to any repurchase obligation.
The standards set forth above with respect to the conduct of the Master
Servicer and the Special Servicer in the performance of their obligations under
this Agreement is herein referred to as the "Servicing Standard."
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The respective liability of the Master Servicer and Special Servicer
hereunder for actions and omissions in any such capacity is limited as provided
herein (including, without limitation, pursuant to Section 6.3 hereof). To the
extent consistent with the foregoing and subject to any express limitations set
forth in this Agreement, the Master Servicer and Special Servicer shall seek to
maximize the timely and complete recovery of principal and interest on the
Notes; provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the Master Servicer or Special Servicer of the
collectibility of the Mortgage Loans. Subject only to the above-described
Servicing Standard and the terms of this Agreement and of the respective
Mortgage Loans, the Master Servicer and Special Servicer shall have full power
and authority, acting alone or through sub-servicers (subject to paragraph (d)
of this Section 3.1 and to Section 3.2), to do or cause to be done any and all
things in connection with such servicing and administration which they may deem
necessary or desirable.
Without limiting the generality of the foregoing, the Master Servicer and
Special Servicer shall, and each is hereby authorized and empowered by the
Trustee, with respect to each Mortgage Loan and the related Mortgaged Property,
to prepare, execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them, any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien on
the related Mortgaged Property and related collateral; any modifications,
waivers, consents or amendments to or with respect to any Mortgage Loan or any
documents contained in the related Mortgage File; and any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, if, in its reasonable judgment, such action is
in the best interests of the Certificateholders and is in accordance with, or is
required by, this Agreement.
Notwithstanding the foregoing, but subject to the provisions of Section
3.10, the Master Servicer and Special Servicer shall not modify, amend, waive or
otherwise consent to the change of the Maturity Date of any Mortgage Loan, the
payment of principal of, or interest or Default Interest on, any Mortgage Loan,
or any other term of a Mortgage Loan, or any complete or partial release of any
real property securing a Mortgage Loan from the lien of the Mortgage unless
(i)(a) such modification, amendment, waiver or consent is not a "significant
modification" under Section 1001 of the Code, including proposed, temporary or
final Treasury regulations thereunder, and Treasury Regulations Section
1.860G-2(b)(3) (other than clause (i) thereof) and (b) the Master Servicer or
Special Servicer shall have requested and received an Opinion of Counsel (which
opinion shall be an expense of the Trust Fund) that the modification, amendment,
waiver, or consent will not cause the imposition of a tax on the Lower-Tier
REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC under the REMIC Provisions
or cause the Lower-Tier REMIC, Middle-Tier REMIC or Upper-Tier REMIC to fail to
qualify as a REMIC at any time, or (ii) if such modification, amendment, waiver
or consent would constitute a "significant modification" under the preceding
clause (a), such modification, amendment, waiver or consent is occasioned by a
default or a reasonably foreseeable default of such Mortgage Loan.
The Master Servicer and Special Servicer shall service and administer the
Mortgage Loans in accordance with applicable state and federal law and shall
provide to the Borrowers any reports required to be provided to them thereby.
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Subject to Section 3.11, the Trustee shall, upon the receipt of a written
request with respect to any Mortgage Loan of a Servicing Officer, execute and
deliver to the Master Servicer and Special Servicer any powers of attorney and
other documents prepared by the Master Servicer or Special Servicer and
necessary or appropriate (as certified in such written request) to enable the
Master Servicer and Special Servicer to carry out their servicing and
administrative duties hereunder with respect to such Mortgage Loan; provided,
however, that the Trustee shall not be liable for any actions of the Master
Servicer or Special Servicer under any such powers of attorney.
(b) Unless otherwise provided in the related Note, the Master Servicer
shall apply any partial Principal Prepayment received on a Mortgage Loan on a
date other than a Due Date to the principal balance of such Mortgage Loan as of
the Due Date immediately following the date of receipt of such partial Principal
Prepayment.
(c) With respect to each Mortgage Loan that provides for prepayment at the
option of the mortgagee, the Master Servicer or Special Servicer, as applicable,
shall exercise such option at the earliest possible date as provided in the
related Note and Mortgage Loan Documents.
(d) The Master Servicer or Special Servicer may at its own expense enter
into sub-servicing agreements with third parties with respect to any of its
respective obligations hereunder, provided that (1) any such agreement shall be
consistent with the provisions of this Agreement, (2) no sub-servicer retained
by the Master Servicer or Special Servicer shall grant any modification, waiver
or amendment to any Mortgage Loan without the approval of the Master Servicer or
Special Servicer, as applicable, which approval shall be given or withheld in
accordance with the procedures set forth in Section 3.10(a), and (3) such
agreement shall be consistent with the standards set forth in Section 3.1(a).
Any such sub-servicing agreement may permit the sub-servicer to delegate its
duties to agents or subcontractors so long as the related agreements or
arrangements with such agents or subcontractors are consistent with the
provisions of this Section 3.1(d).
Any sub-servicing agreement entered into by the Master Servicer or the
Special Servicer (except in the case of the sub-servicing agreement between the
Master Servicer and Continental Wingate Associates, Inc. (the "Continental
Wingate Agreement")) shall provide that it may be terminated by the Trustee if
the Trustee or a successor master servicer or special servicer has assumed the
duties of the Master Servicer or the Special Servicer, as applicable, without
cost or obligation to the assuming or terminating party or the Trust Fund, upon
the assumption by the Trustee or a successor master servicer or special servicer
of the obligations of the Master Servicer or the Special Servicer, as
applicable, pursuant to Section 7.2. In the case of the Continental Wingate
Agreement, the Trustee shall not terminate it, but shall assume it or cause to
be assumed by a successor master servicer so long as Continental Wingate
Associates, Inc. is not in default thereunder.
Except as provided above, any sub-servicing agreement, and any other
transactions or services relating to the Mortgage Loans involving a
sub-servicer, shall be deemed to be between the Master Servicer or Special
Servicer, as applicable, and such sub-servicer alone,
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and the Trustee and the Certificateholders shall not be deemed parties thereto
and shall have no claims, rights, obligations, duties or liabilities with
respect to the sub-servicer.
(e) Reserved.
(f) Reserved.
(g) If the Trustee or any successor master servicer or special servicer
assumes the obligations of the Master Servicer or the Special Servicer, as
applicable, in accordance with Section 7.2, the Trustee or such successor master
servicer or special servicer, to the extent necessary to permit the Trustee or
such successor master servicer or special servicer to carry out the provisions
of Section 7.2, shall, without act or deed on the part of the Trustee or such
successor master servicer or special servicer, succeed to all of the rights and
obligations of the Master Servicer or Special Servicer under any sub-servicing
agreement entered into by the Master Servicer or Special Servicer pursuant to
Section 3.1(d), subject to the right of termination by the Trustee set forth in
Section 3.1(d). In such event, the Trustee or such successor master servicer or
special servicer shall be deemed to have assumed all of the Master Servicer's or
Special Servicer's interest therein (but not any liabilities or obligations in
respect of acts or omissions of the Master Servicer or Special Servicer prior to
such deemed assumption) and to have replaced the Master Servicer or the Special
Servicer, as applicable, as a party to such sub-servicing agreement to the same
extent as if such sub-servicing agreement had been assigned to the Trustee or
such successor master servicer or special servicer, except that the Master
Servicer or the Special Servicer shall not thereby be relieved of any liability
or obligations under such sub-servicing agreement that accrued prior to the
assumption of duties hereunder by the Trustee or such successor master servicer
or special servicer.
If the Trustee or any successor master servicer or special servicer assumes
the servicing obligations of the Master Servicer or the Special Servicer, as the
case may be, then upon request of the Trustee or such successor master servicer
or special servicer, as the case may be, the Master Servicer or Special Servicer
shall, at its own expense, deliver to the Trustee or such successor master
servicer or special servicer (as the case may be) all documents and records
relating to any sub-servicing agreement and the Mortgage Loans then being
serviced thereunder and an accounting of amounts collected and held by it, if
any, and the Master Servicer or Special Servicer will otherwise use its
reasonable best efforts to effect the orderly and efficient transfer of any
sub-servicing agreement to the Trustee or such successor master servicer or
special servicer.
SECTION 3.2. LIABILITY OF THE MASTER SERVICER.
Notwithstanding any sub-servicing agreement or other agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Master Servicer or Special Servicer and any Person acting as sub-servicer, agent
or attorney (or any agent or subcontractor thereof), or any reference to actions
taken through any Person acting as sub-servicer, agent or attorney (or any agent
or subcontractor thereof) or otherwise, the Master Servicer or the Special
Servicer, as applicable, shall remain obligated and primarily liable to the
Trustee and Certificateholders for the servicing and administering of the
Mortgage Loans in accordance with the provisions of this Agreement without
diminution of such obligation or
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liability by virtue of such sub-servicing agreements or arrangements or by
virtue of indemnification from the Depositor or any Person acting as
sub-servicer, agent or attorney (or any agent or subcontractor thereof) to the
same extent and under the same terms and conditions as if the Master Servicer or
Special Servicer, as applicable, were servicing and administering the Mortgage
Loans alone. The Master Servicer or the Special Servicer, as applicable, shall
be entitled to enter into an agreement with any sub-servicer, agent or attorney
(or any agent or subcontractor thereof) providing for indemnification of the
Master Servicer or the Special Servicer, as applicable, by such sub-servicer,
agent or attorney (or any agent or subcontractor thereof) and nothing contained
in this Agreement shall be deemed to limit or modify such indemnification, but
no such agreement for indemnification shall be deemed to limit or modify this
Agreement. For purposes of this Agreement, the Master Servicer and the Special
Servicer each shall be deemed to have received any payment when the sub-servicer
receives such payment.
SECTION 3.3. COLLECTION OF CERTAIN MORTGAGE LOAN PAYMENTS.
The Master Servicer and the Special Servicer shall make reasonable efforts
to collect all payments called for under the terms and provisions of the
Mortgage Loans when the same shall be due and payable, and shall follow such
collection procedures as it would follow with respect to mortgage loans
comparable to the Mortgage Loans and held for other third-party portfolios,
including using its reasonable best efforts in accordance with the Servicing
Standard to collect income statements and rent rolls from the related Borrowers
as required by the related Mortgage Loan Documents and providing (in the case of
the Master Servicer only) reasonable advance notice to such Borrowers of Balloon
Payments due with respect to such Mortgage Loans. Consistent with the foregoing,
the Master Servicer or the Special Servicer, as applicable, may in its
discretion waive any late payment charge or penalty fees in connection with any
delinquent Monthly Payment or Balloon Payment with respect to any Mortgage Loan.
With respect to the ARD Loans, the Master Servicer and Special Servicer shall
not take any enforcement action with respect to the payment of Excess Interest
or principal in excess of the principal component of the constant Monthly
Payment, other than requests for collections, prior to the earlier of (a) any
acceleration of maturity based on a default other than non-payment of Excess
Interest or principal in excess of the principal component of the related
Monthly Payment, or (b) the Maturity Date. With respect to the ARD Loans and
payment of Excess Interest, the Master Servicer and Special Servicer shall state
in any notice to the related Borrower that such Excess Interest is deemed to
accrue at the lesser of the Mortgage Rate plus 2.00% per annum or the rate
specified in the related Note, and shall not take any enforcement action with
respect to the accrual or collection of Excess Interest, including any request
for payment of such amounts, in excess of such rate, in each case unless each
Rating Agency has been notified of the intention of the Master Servicer or
Special Servicer to enforce the rate specified in the related Note and each
Rating Agency has indicated that such action will not, by itself, result in the
downgrade, qualification or withdrawal of any rating then assigned by it to any
Class of Certificates.
SECTION 3.4. COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR ITEMS.
(a) With respect to each Mortgage Loan (other than REO Mortgage Loans), the
Master Servicer shall maintain accurate records with respect to each related
Mortgaged
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Property reflecting the status of taxes, assessments and other similar items
that are or may become a lien on such related Mortgaged Property, the status of
insurance premiums payable with respect thereto and the amounts of Escrow
Payments, if any, required in respect thereof. From time to time, the Master
Servicer shall (i) obtain all bills for the payment of such items (including
renewal premiums), and (ii) effect payment of all such bills with respect to
each such Mortgaged Property prior to the applicable penalty or termination
date, in each case employing for such purpose Escrow Payments as allowed under
the terms of such Mortgage Loan. If a Borrower fails to make any such Escrow
Payment on a timely basis or collections from such Borrower are insufficient to
pay any such item before the applicable penalty or termination date, the Master
Servicer shall (in accordance with Section 3.8 with respect to the payment of
insurance premiums) advance the amount necessary to effect payment of any such
item, unless the Master Servicer, in its good faith business judgment,
determines that such Advance would be a Nonrecoverable Advance. With respect to
any Mortgage Loan as to which the related Borrower is not required to make
Escrow Payments, if such Borrower fails to effect payment of any such bill, then
the Master Servicer shall (in accordance with Section 3.8 with respect to the
payment of insurance premiums) advance the amount necessary to effect payment of
any such bill on or before the applicable penalty or termination date unless,
with respect to the payment of taxes and assessments, (x) the Master Servicer
reasonably anticipates that such bill will be paid by the Borrower by the close
of business on or before the penalty date, but in any event the Master Servicer
shall make such advance (subject to clause (y) below) within 90 days after such
date or within five Business Days after the Master Servicer has received
confirmation that such item has not been paid, whichever is earlier, or (y) the
Master Servicer determines, in its good faith business judgment, that such
Property Advance would be a Nonrecoverable Advance. The Master Servicer shall be
entitled to reimbursement of Property Advances that it makes pursuant to the
preceding sentence, with interest thereon at the Advance Rate, from amounts
received on or in respect of the Mortgage Loan respecting which such Property
Advance was made or if such Property Advance has become a Nonrecoverable
Advance, to the extent permitted by Section 3.6 of this Agreement. No costs
incurred by the Master Servicer in effecting the payment of taxes and
assessments on the Mortgaged Properties shall, for the purpose of calculating
distributions to Certificateholders, be added to the amount owing under the
related Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so
permit.
(b) The Master Servicer shall segregate and hold all funds collected and
received pursuant to any Mortgage Loan constituting Escrow Payments 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 Payments shall be deposited within two (2) Business Days
after receipt; provided that such Escrow Payments are deposited in a clearing
account of the Master Servicer that is an Eligible Account within one Business
Day after receipt. The Master Servicer shall also deposit into each Escrow
Account any amounts representing losses on Permitted Investments in which
amounts on deposit in such Escrow Account have been invested pursuant to Section
3.7(b) and any Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
which are required to be applied to the restoration or repair of the related
Mortgaged Property pursuant to the related Mortgage Loan. Escrow Accounts shall
be Eligible Accounts (to the extent consistent with applicable law and related
mortgage loan documents) and shall be entitled, "[Name of Master Servicer], as
Master
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Servicer, in trust for [Name of Trustee], as Trustee in trust for Holders of
Prudential Securities Secured Financing Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, and Various Borrowers." Withdrawals
from an Escrow Account may be made by the Master Servicer only:
(i) to effect timely payments of items with respect to which Escrow
Payments are required pursuant to the related Mortgage;
(ii) to transfer funds to the Collection Account to reimburse the Master
Servicer or the Trustee, as applicable, for any Advance relating to Escrow
Payments, but only from amounts received with respect to the related Mortgage
Loan which represent late collections of Escrow Payments 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;
(v) to pay from time to time to the Master Servicer any interest or
investment income earned on funds deposited in such Escrow Account pursuant
to Section 3.7(b) to the extent (a) permitted by law and (b) not required to
be paid to the related Borrower under the terms of the related Mortgage Loan
or by law, or to pay such interest or income to the related Borrower if such
income is required to be paid to the related Borrower under law or by the
terms of the related Mortgage Loan;
(vi) to remit to the related Borrower the Financial and Lease Reporting Fee
as and when required pursuant to the related Mortgage;
(vii) to remove any funds deposited in such Escrow Account that were not
required to be deposited therein; and
(viii) to remit to the related Borrower any amounts required to be so
remitted under the related Mortgage Loan Documents.
SECTION 3.5. COLLECTION ACCOUNT; MIDDLE-TIER DISTRIBUTION ACCOUNT;
DISTRIBUTION ACCOUNT; INTEREST RESERVE ACCOUNT.
(a) The Master Servicer shall establish and maintain the Collection Account
in the Trustee's name for the benefit of the Certificateholders and the Trustee
as the Holder of the Lower-Tier Regular Interests and the Middle-Tier Regular
Interests. The Collection Account shall be established and maintained as an
Eligible Account. The Master Servicer shall deposit or cause to be deposited in
the Collection Account within two (2) Business Days following receipt the
following payments and collections received or made by it on or with respect to
the Mortgage Loans (provided that such payments and collections are deposited in
a clearing account of the Master Servicer that is an Eligible Account within one
(1) Business Day after receipt):
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(i) all payments on account of principal of the Mortgage Loans, including
the principal component of Unscheduled Payments on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans and the
interest portion of all Unscheduled Payments and all Prepayment Premiums and
Yield Maintenance Charges;
(iii) any amounts required to be deposited pursuant to Section 3.7(b) in
connection with losses realized on Permitted Investments with respect to
funds held in the Collection Account and pursuant to Section 3.25 in
connection with Prepayment Interest Shortfalls;
(iv) (x) all Net REO Proceeds transferred from an REO Account pursuant to
Section 3.17(b), (y) all amounts transferred from lockbox accounts in respect
of ARD Loans and payable to Certificateholders, and (z) all Condemnation
Proceeds, Insurance Proceeds and Net Liquidation Proceeds not required to be
applied to the restoration or repair of the related Mortgaged Property;
(v) all amounts received from Borrowers which represent recoveries of
Property Protection Expenses or Property Advances made pursuant to Section
3.22; and
(vi) all other amounts required by the provisions of this Agreement to be
deposited into the Collection Account by the Master Servicer or the Special
Servicer.
The foregoing requirements for deposits in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges, late fees,
"insufficient funds" check charges, Assumption Fees, loan modification fees,
loan service transaction fees, extension fees, demand fees, beneficiary
statement charges and similar fees and charges (but not including any Prepayment
Premiums, Yield Maintenance Charges, Excess Interest or Default Interest) need
not be deposited in the Collection Account by the Master Servicer and, to the
extent permitted by applicable law, the Master Servicer or the Special Servicer,
as applicable, shall be entitled to retain any such charges and fees received
with respect to the Mortgage Loans. In the event that the Master Servicer
deposits in the Collection Account any amount not required to be deposited
therein, the Master Servicer may at any time withdraw such amount from the
Collection Account, any provision herein to the contrary notwithstanding.
(b) The Trustee shall establish and maintain the Middle-Tier Distribution
Account in the name of the Trustee, in trust for the benefit of the Upper-Tier
REMIC, the Regular Certificateholders and the Class R-I and Class R-II
Certificateholders. The Middle-Tier Distribution Account shall be established
and maintained as an Eligible Account.
(c) The Trustee shall establish and maintain the Distribution Account in
the name of the Trustee, in trust for the benefit of the Certificateholders. The
Distribution Account shall be established and maintained as an Eligible Account.
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(d)(i) The Master Servicer shall establish, on or prior to the Closing
Date, and thereafter maintain in the name of the Master Servicer on behalf of
the Trustee, a segregated account (the "Interest Reserve Account") solely with
respect to this Agreement, to be held in trust for the benefit of the Holders of
the Certificates until disbursed pursuant to the terms of this Agreement,
entitled "[Name of Master Servicer], as Master Servicer, in trust for [Name of
Trustee], as Trustee in trust for Holders of Prudential Securities Secured
Financing Corporation, Commercial Mortgage Pass-Through Certificates, Series
1999-C2. The Interest Reserve Account shall be an Eligible Account.
(ii) On or before the date that is two Business Days after the
Determination Date occurring in (i) January of each calendar year that is not a
leap year and (ii) February of each calendar year, the Master Servicer shall
calculate the Withheld Amount and notify the Trustee of such Withheld Amount. On
each such Remittance Date, the Master Servicer shall withdraw from the
Collection Account and deposit in the Interest Reserve Account an amount equal
to the aggregate of the Withheld Amounts. If the Master Servicer shall deposit
in the Interest Reserve Account any amount not required to be deposited therein,
it may at any time withdraw such amount from the Interest Reserve Account, any
provision herein to the contrary notwithstanding. On or prior to the Remittance
Date in March of each calendar year, the Master Servicer shall transfer to the
Trustee for deposit into the Distribution Account the aggregate of all Withheld
Amounts on deposit in the Interest Reserve Account.
(iii) The Master Servicer may, from time to time, make withdrawals from the
Interest Reserve Account to pay itself, as additional servicing compensation in
accordance with Section 3.12, net interest and investment income earned in
respect of amounts in the Interest Reserve Account.
(iv) Funds in the Interest Reserve Account may be invested and, if
invested, shall be invested at the direction of, and at the risk of, the Master
Servicer in Permitted Investments selected by the Master Servicer which shall
mature, unless payable on demand, not later than the Business Day immediately
preceding the date that such funds are required to be transferred to the
Distribution Account, and any such Eligible Investment shall not be sold or
disposed of prior to its maturity unless payable on demand. All such Eligible
Investments shall be made in the name of "[Name of Master Servicer], as Master
Servicer, in trust for [Name of Trustee], as Trustee in trust for Holders of
Prudential Securities Secured Financing Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2."
(v) An amount equal to all income and gain realized from any such
investment (to the extent not needed to offset losses from other investments)
shall be paid to the Master Servicer as additional servicing compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Master Servicer which shall deposit the amount of such loss (to the
extent not offset by income from other investments) in the Collection Account
out of its own funds no later than the next succeeding Remittance Date.
(e) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.7. The Master
Servicer shall give written notice
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to the Trustee of the location and account number of the Collection Account and
shall notify the Trustee in writing prior to any subsequent change thereof.
SECTION 3.6. PERMITTED WITHDRAWALS FROM THE COLLECTION ACCOUNT.
The Master Servicer may make withdrawals from the Collection Account only
as described below (the order set forth below not constituting an order of
priority for such withdrawals):
(i) to remit to the Trustee, for deposit in the Middle-Tier
Distribution Account, the amounts required to be deposited in the
Middle-Tier Distribution Account pursuant to Section 4.6;
(ii) to pay or reimburse the Master Servicer or the Trustee for Advances,
the right of the Master Servicer or the Trustee to reimburse itself pursuant
to this clause (ii) being limited to either (x) any collections on or in
respect of the particular Mortgage Loan or REO Property respecting which each
such Advance was made, or (y) any other amounts in the Collection Account in
the event that such Advances have been deemed to be Nonrecoverable Advances
or are not recovered from recoveries in respect of the related Mortgage Loan
or REO Property after a Final Recovery Determination;
(iii) to pay to the Master Servicer or the Trustee the Advance Interest
Amount;
(iv) to pay on or before each Remittance Date to the Master Servicer and
the Special Servicer, as applicable, as compensation, the unpaid Servicing
Fee, Special Servicing Fee, Disposition Fee and Workout Fee, respectively, in
respect of the related Distribution Date (in the case of the Servicing Fee
and the Special Servicing Fee, reduced up to the amount of any Prepayment
Interest Shortfalls with respect to such Distribution Date, in accordance
with Section 3.25), to be paid, in the case of the Servicing Fee, from
interest received on the related Mortgage Loans, and to pay from time to
time, to the Master Servicer any interest or investment income earned on
funds deposited in the Collection Account, and to pay to the Master Servicer
as additional Servicing Compensation any Prepayment Interest Surplus received
in the preceding Collection Period and to pay to the Master Servicer and the
Special Servicer, as applicable, any other amounts constituting Servicing
Compensation;
(v) to pay on or before each Distribution Date to the Depositor, the
Transferor, the applicable Mortgage Loan Seller or the purchaser of any
Specially Serviced Mortgage Loan or REO Property, as the case may be, with
respect to each Mortgage Loan or REO Property that has previously been
purchased or repurchased by it pursuant to Section 2.3(d), 2.3(e), Section
3.18, Section 5.8 or Section 9.1, all amounts received thereon during the
related Collection Period and subsequent to the date as of which the amount
required to effect such purchase or repurchase was determined;
(vi) to the extent not reimbursed or paid pursuant to any other clause of
this Section 3.6, to reimburse or pay the Master Servicer, the Special
Servicer, the Trustee
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and/or the Depositor for unpaid items incurred by or on behalf of such Person
pursuant to the second sentence of Section 3.7(c), Section 3.8(a), Section
3.10, Section 3.11, Section 3.12(d), Section 3.17(a), 3.17(b) and 3.17(c),
Section 3.18(a), 6.3, 7.4, 8.5(d), 9.1(d) or Section 10.7, or any other
provision of this Agreement pursuant to which such Person is entitled to
reimbursement or payment from the Trust Fund, in each case only to the extent
reimbursable under such Section, it being acknowledged that this clause (vi)
shall not be deemed to modify the substance of any such Section, including
the provisions of such Section that set forth the extent to which one of the
foregoing Persons is or is not entitled to payment or reimbursement;
(vii) to deposit in one or more separate, non-interest bearing accounts any
amount reasonably determined by the Trustee to be necessary to pay any
applicable federal, state or local taxes imposed on the Lower-Tier REMIC
under the circumstances and to the extent described in Section 4.5;
(viii) to withdraw any amount deposited into the Collection Account that
was not required to be deposited therein; and
(ix) to clear and terminate the Collection Account pursuant to Section 9.1.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan-by-Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to subclauses (ii) - (viii)
above.
The Master Servicer shall pay to the Trustee or the Special Servicer from
the Collection Account (to the extent permitted by clauses (i)-(viii) above)
amounts permitted to be paid to the Trustee or the Special Servicer therefrom,
promptly upon receipt of a certificate of a Responsible Officer of the Trustee
or a Servicing Officer of the Special Servicer, as applicable, describing the
item and amount to which the Trustee or the Special Servicer is entitled. The
Master Servicer may rely conclusively on any such certificate and shall have no
duty to recalculate the amounts stated therein.
The Trustee, the Special Servicer and the Master Servicer shall in all
cases have a right prior to the Certificateholders to any funds on deposit in
the Collection Account from time to time for the reimbursement or payment of
Servicing Compensation, Advances (subject to the limitation set forth in Section
3.6(ii)) and their respective expenses (including Advance Interest Amounts)
hereunder to the extent such expenses are to be reimbursed or paid from amounts
on deposit in the Collection Account pursuant to this Agreement.
SECTION 3.7. INVESTMENT OF FUNDS IN THE COLLECTION ACCOUNT AND THE RESERVE
ACCOUNTS.
(a) The Master Servicer (or with respect to any REO Account, the Special
Servicer) may direct any depository institution maintaining the Collection
Account, any REO Account or (subject to applicable laws and the related Mortgage
Loan Documents) any Reserve Accounts (each, for purposes of this Section 3.7, an
"Investment Account") to invest the funds in
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such Investment Account in one or more Permitted Investments that bear interest
or are sold at a discount, and that mature, unless payable on demand, no later
than the Business Day on which such funds are required to be withdrawn from such
Investment Account pursuant to this Agreement; provided, however, that the
Trustee will not be required to invest funds that are deposited in an Investment
Account one day prior to the day they are required to be withdrawn from such
Investment Account. Any direction by the Master Servicer (or with respect to an
REO Account, the Special Servicer) to invest funds on deposit in an Investment
Account shall be in writing and shall certify that the requested investment is a
Permitted Investment which matures at or prior to the time required hereby or is
payable on demand. In the case of any Reserve Account, the Master Servicer shall
act upon the written request of the related Borrower or Manager to the extent
the Master Servicer is required to do so under the terms of the related Mortgage
Loan, provided that in the absence of appropriate written instructions from such
Borrower or Manager meeting the requirements of this Section 3.7, the Master
Servicer shall have no obligation to, but will be entitled to, direct the
investment of funds in such Reserve Accounts. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds in
an Investment Account shall be made in the name of the Trustee (in its capacity
as such) or in the name of a nominee of the Trustee.
The Trustee shall have sole control (except with respect to investment
directions which shall be in the sole control of the Master Servicer or the
Special Servicer, as applicable, as an independent contractor to the Trust Fund)
over each such investment and any certificate or other instrument evidencing any
such investment shall be delivered directly to the Trustee or its agent (which
shall initially be the Master Servicer), together with any document of transfer,
if any, necessary to transfer title to such investment to the Trustee or its
nominee. The Trustee shall have no responsibility or liability with respect to
the investment directions of the Master Servicer or the Special Servicer or any
losses resulting therefrom, whether from Permitted Investments or otherwise. In
the event amounts on deposit in an Investment Account are at any time invested
in a Permitted Investment payable on demand, the Master Servicer or the Special
Servicer, as applicable, shall:
(x) consistent with any notice required to be given thereunder, demand that
payment thereon be made on the last day such Permitted Investment may
otherwise mature hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount required to be withdrawn
on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as applicable,
that such Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the related Investment Account.
(b) All income and gain realized from investment of funds deposited in the
Collection Account and any Reserve Account as to which the related Borrower is
not entitled to interest thereon shall be for the benefit of the Master Servicer
and all income and gain realized from investment of funds deposited in any REO
Account shall be for the benefit of the Special Servicer and, may be withdrawn
by the Master Servicer or the Special Servicer, as applicable, from time to time
in accordance with Section 3.6 and Section 3.17(b), as applicable. The Master
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Servicer shall deposit from its own funds in the Collection Account and the
Interest Reserve Account as the case may be, the amount of any loss incurred in
respect of any such Permitted Investment immediately upon realization of such
loss and the Special Servicer shall deposit from its own funds in any REO
Account the amount of any loss incurred in respect of any such Permitted
Investment immediately upon realization of such loss. The Master Servicer shall
also deposit into each Reserve Account any amounts representing losses on
Permitted Investments in which such Reserve Accounts have been invested, except
to the extent that amounts are invested for the benefit of the Borrower under
applicable law or the terms of the related Mortgage Loan. The income and gain
realized from investment of funds deposited in any Reserve Account shall be paid
from time to time to the related Borrower to the extent required under the
Mortgage Loan or applicable law.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and upon the request of Holders of Certificates
representing at least a majority of the aggregate Voting Rights of any Class
shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings. In the event the Trustee takes any such action, the Trust Fund
shall pay or reimburse the Trustee for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee in connection
therewith. In the event that the Trustee does not take any such action, the
Master Servicer may take such action at its own cost and expense.
SECTION 3.8. MAINTENANCE OF INSURANCE POLICIES AND ERRORS AND OMISSIONS AND
FIDELITY COVERAGE.
(a) The Master Servicer on behalf of the Trustee, as mortgagee, shall use
its reasonable best efforts in accordance with the Servicing Standard to cause
the related Borrower to maintain for each Mortgage Loan (other than any REO
Mortgage Loan), and the Master Servicer will review, certificates of insurance
for such required insurance, and if the Borrower does not so maintain such
insurance, shall itself maintain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) to the extent the Trustee as mortgagee has
an insurable interest and to the extent available at commercially reasonable
rates, (A) fire and hazard insurance with extended coverage on the related
Mortgaged Property in an amount which is at least equal to the lesser of (i) one
hundred percent (100%) of the then "full replacement cost" of the improvements
and equipment (excluding foundations, footings and excavation costs), without
deduction for physical depreciation, and (ii) the outstanding principal balance
of the related Mortgage Loan or such other amount as is necessary to prevent any
reduction in such policy by reason of the application of co-insurance and to
prevent the Trustee thereunder from being deemed to be a co-insurer, (B)
insurance providing coverage against twelve months of rent interruptions and (C)
such other insurance (including public liability insurance) as provided in the
related Mortgage Loan.
The Special Servicer shall maintain, to the extent available at
commercially reasonable rates, fire and hazard insurance from a Qualified
Insurer with extended coverage on each REO Property in an amount which is at
least equal to one hundred percent (100%) of the
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then "full replacement cost" of the improvements and equipment (excluding
foundations, footings and excavation costs), without deduction for physical
depreciation. The Special Servicer shall maintain (subject to the provisions of
this Agreement regarding Nonrecoverable Advances), to the extent available at
commercially reasonable rates, with respect to each REO Property (A) public
liability insurance providing such coverage against such risks as the Master
Servicer or the Special Servicer, as applicable, determines, consistent with the
related Mortgage and the Servicing Standard, to be in the best interests of the
Trust Fund, and shall cause to be maintained with respect to each REO Property
(B) insurance providing coverage against twelve months of rent interruptions,
and (C) such other insurance as provided in the related Mortgage Loan to the
extent available at commercially reasonable rates and in the case of each of
(A), (B), and (C) from a Qualified Insurer. In the case of any insurance
otherwise required to be maintained pursuant to this section that is not being
so maintained because the Master Servicer or the Special Servicer, as
applicable, has deemed that it is not available at commercially reasonable
rates, the Master Servicer or the Special Servicer, as applicable, shall deliver
an Officer's Certificate to the Trustee and the Rating Agencies detailing the
steps that the Master Servicer or the Special Servicer, as applicable, took in
seeking such insurance and the factors which led to its determination that such
insurance is not so available. Any amounts collected by the Master Servicer or
the Special Servicer, as applicable, under any such policies (other than amounts
to be applied to the restoration or repair of the related Mortgaged Property or
amounts to be released to the Borrower in accordance with the terms of the
related Mortgage) shall be deposited into the Collection Account pursuant to
Section 3.5, subject to withdrawal pursuant to Section 3.6. Any cost incurred by
the Master Servicer in maintaining any such insurance shall not, for the purpose
of calculating distributions to Certificateholders, be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit. It is understood and agreed that no earthquake
or other additional insurance other than flood insurance is to be required of
any Borrower or to be maintained by the Master Servicer other than pursuant to
the terms of the related Mortgage Loan Documents and pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require such
additional insurance; provided, however, that each of the Master Servicer and
the Special Servicer may maintain earthquake insurance.
If the Mortgaged Property is located in a federally designated special
flood hazard area, the Master Servicer will use its reasonable best efforts in
accordance with the Servicing Standard to cause the related Borrower to maintain
or will itself obtain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) flood insurance in respect thereof to the extent
available at commercially reasonable rates. Such flood insurance shall be in an
amount equal to the lesser of (i) the unpaid principal balance of the related
Mortgage Loan and (ii) the maximum amount of such insurance required by the
terms of the related Mortgage and as is available for the related property under
the national flood insurance program (assuming that the area in which such
property is located is participating in such program). If an REO Property is
located in a federally designated special flood hazard area, the Special
Servicer will obtain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) flood insurance in respect thereof providing
substantially the same coverage as described in the preceding sentences.
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If at any time during the term of this Agreement a recovery under a flood
or fire and hazard insurance policy in respect of a Mortgaged Property
(excluding any REO Property) is not available but would have been available if
such insurance were maintained thereon in accordance with the standards applied
to Mortgaged Properties described herein, the Master Servicer shall (subject to
the provisions of this Agreement concerning Nonrecoverable Advances) either (i)
immediately deposit into the Collection Account from its own funds the amount
that would have been recovered or (ii) apply to the restoration and repair of
the property from its own funds the amount that would have been recovered, if
such application would be consistent with the servicing standard set forth in
Section 3.1(a); provided, however, that the Master Servicer shall not be
responsible for any shortfall in insurance proceeds resulting from an insurer's
refusal or inability to pay a claim. Costs to the Master Servicer of maintaining
insurance policies pursuant to this Section 3.8 shall be paid by the Master
Servicer as a Property Advance and shall be reimbursable to the Master Servicer
with interest at the Advance Rate, which reimbursement may be effected under
Section 3.6(vi); and costs to the Special Servicer of maintaining insurance
policies pursuant to this Section 3.8 shall be paid and reimbursed in accordance
with Section 3.17(b).
The Master Servicer and the Special Servicer agree to prepare and present,
on behalf of itself, the Trustee and the Certificateholders, claims under each
related insurance policy maintained pursuant to this Section 3.8(a) in a timely
fashion in accordance with the terms of such policy and to take such reasonable
steps as are necessary to receive payment or to permit recovery thereunder.
The Master Servicer (or with respect to any REO Property, the Special
Servicer) shall require that all insurance policies required hereunder shall
name the Trustee or the Master Servicer (or with respect to any REO Property,
the Special Servicer), on behalf of the Trustee as the mortgagee, as loss payee
and that all such insurance policies require that thirty (30) days' notice be
given to the Master Servicer before termination to the extent required by the
related Mortgage Loan Documents.
(b) (I) If the Master Servicer or Special Servicer, as applicable, obtains
and maintains a blanket insurance policy with a Qualified Insurer at its own
expense insuring against fire and hazard losses, 12-month rent interruptions or
other required insurance on all of the Mortgage Loans, it shall conclusively be
deemed to have satisfied its obligations concerning the maintenance of such
insurance coverage set forth in Section 3.8(a), it being understood and agreed
that such policy may contain a deductible clause, in which case the Master
Servicer or Special Servicer, as applicable, shall, in the event that (i) there
shall not have been maintained on one or more of the related Mortgaged
Properties a policy otherwise complying with the provisions of Section 3.8(a),
and (ii) there shall have been one or more losses which would have been covered
by such a policy had it been maintained, immediately deposit into the Collection
Account from its own funds the amount not otherwise payable under the blanket
policy because of such deductible clause to the extent that any such deductible
exceeds the deductible limitation that pertained to the related Mortgage Loan,
or, in the absence of such deductible limitation, the deductible limitation
which is consistent with the Servicing Standard. In connection with its
activities as Master Servicer or Special Servicer hereunder, as applicable, the
Master Servicer and the Special Servicer each agrees to prepare and present, on
behalf of itself, the Trustee and
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Certificateholders, claims under any such blanket policy which it maintains in a
timely fashion in accordance with the terms of such policy and to take such
reasonable steps as are necessary to receive payment or permit recovery
thereunder.
(II) If the Master Servicer or the Special Servicer, as applicable, causes
any Mortgaged Property or REO Property to be covered by a master force placed
insurance policy, which policy is issued by a Qualified Insurer and provides no
less coverage in scope and amount for such Mortgaged Property or REO Property
than the insurance required to be maintained pursuant to Section 3.8(a), the
Master Servicer or Special Servicer shall conclusively be deemed to have
satisfied its obligations to maintain insurance pursuant to Section 3.8(a). Such
policy may contain a deductible clause, in which case the Master Servicer or
Special Servicer, as applicable, shall, in the event that (i) there shall not
have been maintained on the related Mortgaged Property or REO Property a policy
otherwise complying with the provisions of Section 3.8(a), and (ii) there shall
have been one or more losses which would have been covered by such a policy had
it been maintained, immediately deposit into the Collection Account from its own
funds the amount not otherwise payable under such policy because of such
deductible to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the absence of
any such deductible limitation, the deductible limitation which is consistent
with the Servicing Standard.
(c) Each of the Master Servicer and Special Servicer shall maintain a
fidelity bond in the form and amount that would meet the servicing requirements
of prudent institutional commercial mortgage loan servicers. The Master Servicer
or Special Servicer, as applicable, shall be deemed to have complied with this
provision if one of its respective Affiliates has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or Special Servicer, as applicable. In addition,
each of the Master Servicer and Special Servicer shall keep in force during the
term of this Agreement a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with its obligations to service the Mortgage Loans hereunder in the
form and amount that would meet the servicing requirements of prudent
institutional commercial mortgage loan servicers. Each of the Master Servicer
and Special Servicer shall cause each and every sub-servicer for it (other than
any sub-servicer whose services are limited only to the gathering of financial
statements and the performance of site inspections, and, in particular, does not
include the collection or payment of any Trust Fund property) to maintain, or
cause to be maintained by any agent or contractor servicing any Mortgage Loan on
behalf of such sub-servicer, a fidelity bond and an errors and omissions
insurance policy which satisfy the requirements for the fidelity bond and the
errors and omissions policy to be maintained by the Master Servicer or Special
Servicer pursuant to this Section 3.8(c). All fidelity bonds and policies of
errors and omissions insurance obtained under this Section 3.8(c) shall be
issued by a Qualified Insurer.
SECTION 3.9. ENFORCEMENT OF DUE-ON-SALE AND DUE-ON-ENCUMBRANCE CLAUSES;
ASSUMPTION AGREEMENTS AND DEFEASANCE PROVISIONS.
(a) If any Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, which, by its terms:
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(i) provides that such Mortgage Loan shall (or may at the related
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 Mortgage Loan may not be assumed without the
consent of the related mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Master Servicer or the Special Servicer, as applicable, on behalf of the Trust
Fund, shall enforce such provision to the extent permitted under the terms of
such Mortgage Loan, applicable law and governmental regulations, unless (A) such
provision is not enforceable under applicable law, (B) enforcement thereof would
result in a loss of insurance coverage under any related insurance policy, (C)
such enforcement is reasonably likely to result in meritorious legal action by
the related Borrower, or (D) the Master Servicer or Special Servicer, as
applicable, acting in accordance with the Servicing Standard, determines that
such enforcement would not be in the best interests of the Trust Fund. In
addition, the Master Servicer or Special Servicer shall forbear to enforce such
provision as to any Mortgage Loan or group of Mortgage Loans to Borrowers that
are Affiliates or group of Mortgage Loans that are secured by any group of
cross-collateralized Mortgaged Properties whose outstanding Scheduled Principal
Balance equals or exceeds the greater of (a) $20,000,000 and (b) 5.0% of the
aggregate outstanding Scheduled Principal Balance of all Mortgage Loans, if the
loan documents permit the Master Servicer to impose such a condition, only if
the Master Servicer receives written confirmation from S&P and Moody's that
forbearance to enforce such provision shall not result, in and of itself, in a
downgrading, withdrawal or qualification of the rating then assigned by S&P and
Moody's to any Class of Certificates. Subject to the foregoing, the Master
Servicer or Special Servicer, as applicable, is authorized to take or enter into
an assumption agreement from or with the Person to whom such Mortgaged Property
has been or is about to be conveyed, or to release the original related Borrower
from liability upon such Mortgage Loan and substitute the new Borrower as
obligor thereon. To the extent permitted by law, the Master Servicer or Special
Servicer, as applicable, shall enter into an assumption or substitution
agreement only if the credit status of the prospective new Borrower is in
compliance with the Master Servicer's or the Special Servicer's, as applicable,
regular commercial mortgage origination or servicing standards and criteria and
the terms of the related Mortgage. The Master Servicer or Special Servicer, as
applicable, shall notify the Trustee that any such assumption or substitution
agreement has been completed by forwarding to the Trustee the original of such
agreement, which document shall be added 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. In
connection with any such assumption or substitution agreement, the Mortgage
Rate, principal amount and other material payment terms (including any
cross-collateralization and cross-default provisions) of such Mortgage Loan
pursuant to the related Note and Mortgage shall not be changed, other than in
connection with a default or reasonably foreseeable default with respect to the
Mortgage Loan. Assumption Fees collected by the Master Servicer or the Special
Servicer, as applicable, for entering into an assumption or substitution
agreement will be retained by the Master Servicer or Special Servicer, as
applicable, as additional servicing compensation. Notwithstanding the foregoing,
the Master Servicer or Special Servicer may consent to the assumption of a
Mortgage
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Loan by a prospective new Borrower in a bankruptcy proceeding involving the
related Mortgaged Property.
(b) If any Mortgage Loan contains a provision in the nature of a
"due-on-encumbrance" clause, which, by its terms:
(i) provides that such Mortgage Loan shall (or may at the related
mortgagee's option) become due and payable upon the creation of any lien or
other encumbrance on such Mortgaged Property, or
(ii) requires the consent of the related mortgagee to the creation of any
such lien or other encumbrance on such Mortgaged Property,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Master Servicer or Special Servicer, as applicable, on behalf of the Trust Fund,
shall enforce such provision and in connection therewith shall (x) accelerate
the payments due on such Mortgage Loan, or (y) withhold its consent to the
creation of any such lien or other encumbrance, as applicable, except, in each
case, to the extent that the Master Servicer or Special Servicer, as applicable,
acting in accordance with the Servicing Standard, determines that such
enforcement would not be in the best interests of the Trust Fund and receives
written confirmation from each Rating Agency that forbearance to enforce such
provision shall not result, in and of itself, in a downgrading, withdrawal or
qualification of the rating then assigned by such Rating Agency to any Class of
Certificates.
Notwithstanding the foregoing, the Master Servicer or Special Servicer, as
applicable, may forbear from enforcing any due-on-encumbrance provision in
connection with any junior or senior lien on the Mortgaged Property imposed in
connection with any bankruptcy proceeding involving the Mortgaged Property.
(c) If any Mortgage Loan contains a provision in the nature of a
"defeasance" clause, which by its terms grants the related Borrower, subject to
certain conditions, the right to obtain the release of the lien of the related
Mortgage on the related Mortgaged Property by substituting for such Mortgaged
Property, as collateral for the related Note, direct, non-callable obligations
of the United States of America which provide for payments on or prior to each
Due Date and on the maturity date of the Mortgage Loan (or, in the case of the
ARD Loans, through the related Anticipated Repayment Dates, including prepayment
in full on their related Anticipated Repayment Dates) in amounts equal to or
greater than the amounts payable under the related Note on each such date, then,
for so long as such Mortgage Loan is included in the Trust Fund, the Master
Servicer or Special Servicer, as applicable, on behalf of the Trust Fund, shall
withhold its consent to such defeasance to the extent not inconsistent with such
Mortgage Loan defeasance clause, except, in each case, to the extent that the
Master Servicer or Special Servicer, as applicable, acting in accordance with
the Servicing Standard, (i) determines that such withholding would not be in the
best interests of the Trust Fund, (ii) receives written confirmation from each
Rating Agency that forbearance to enforce such provision shall not result, in
and of itself, in a downgrading, withdrawal or qualification of the rating then
assigned by such Rating Agency to any Class of Certificates and (iii) receives
an Opinion of Counsel (at
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the expense of the related Mortgagor or the Trust Fund) that any such defeasance
will not cause any of the REMICs to fail to qualify as a REMIC or any tax to be
imposed on any REMIC at any time the Certificates are outstanding.
(d) Nothing in this Section 3.9 shall constitute a waiver of the Trustee's
right, as the mortgagee of record, to receive notice of any assumption of a
Mortgage Loan, any sale or other transfer of the related Mortgaged Property or
the creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(e) In connection with the taking of, or the failure to take, any action
pursuant to this Section 3.9, the Master Servicer or Special Servicer, as
applicable, shall not agree to modify, waive or amend, and no assumption or
substitution agreement entered into pursuant to Section 3.9(a) shall contain any
terms that are different from, any term of any Mortgage Loan or the related Note
or Mortgage.
SECTION 3.10. REALIZATION UPON MORTGAGE LOANS.
(a) With respect to any Specially Serviced Mortgage Loan, the Special
Servicer shall determine, in accordance with the Servicing Standard, whether to
grant a modification, waiver, extension or amendment of the terms of such
Specially Serviced Mortgage Loan, commence foreclosure proceedings or attempt to
sell such Specially Serviced Mortgage Loan with reference to which course of
action is reasonably likely to produce a greater recovery on a present value
basis with respect to such Specially Serviced Mortgage Loan; provided, however,
that in connection with the foregoing the Master Servicer shall provide an
Officer's Certificate as described below; and provided, further, that the
Special Servicer shall have requested and received an Opinion of Counsel (which
opinion shall be an expense of the Trust Fund) that: (i) as provided in Section
3.1, in the event of a modification, extension, waiver or amendment of the terms
of a Specially Serviced Mortgage Loan (including any consent to a complete or
partial release of real property securing a Mortgage Loan), the modification,
extension, waiver or amendment will not cause the imposition of a tax on the
Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC under the REMIC
provisions or cause the Lower-Tier REMIC, Middle-Tier REMIC or Upper-Tier REMIC
to fail to qualify as a REMIC at any time any Class of Certificates is
outstanding; (ii) in the event of a commencement of foreclosure proceedings, the
property will 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), in which case Section 3.17 shall
apply; or (iii) in the event of an attempt to sell the Specially Serviced
Mortgage Loan, the sale (x) will not constitute a "prohibited transaction"
within the meaning of Code Section 860F(a) or (y) will not result in a taxable
gain or otherwise subject the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC to tax. The determination of the Special Servicer or Special
Servicer described above shall be evidenced by a certificate of a Servicing
Officer thereof delivered to the Trustee, the Master Servicer and the Depositor
setting forth such determination and the procedures and considerations of the
Special Servicer forming the basis of such determination.
Contemporaneously with the earliest of (i) the effective date of any
modification, amendment, waiver, extension or consent to a change of the stated
maturity, Mortgage Rate,
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principal balance or amortization terms of any Specially Serviced Mortgage
Loan, or any other term of a Mortgage Loan to the extent such modification,
amendment, waiver or consent would constitute a "significant modification" under
Section 1001 of the Code, including proposed and final Treasury regulations
thereunder, as to which Mortgage Loan a default has occurred or is reasonably
foreseeable, (ii) 90 days after the occurrence of any uncured payment
delinquency, (iii) the date 45 days after a receiver is appointed in respect of
a Mortgaged Property, or (iv) the date a Mortgaged Property becomes an REO
Property, the Special Servicer shall obtain an Appraisal of the Mortgaged
Property securing any Mortgage Loan referred to in clause (i) or (ii) or such
Mortgaged Property or REO Property, as the case may be (an "Updated Appraisal").
Following a default by a Borrower in the payment of a Balloon Payment, the
Special Servicer may grant any number of successive extensions of up to 12
months (or the period since the beginning of the first such extension, if
shorter) with respect to the related Specially Serviced Mortgage Loan. The
Special Servicer shall consider, among all relevant factors, any Appraisal
obtained in accordance with the preceding paragraph in determining whether to
grant any such extension. The Special Servicer shall not grant any extension
(whether arising from a default in the payment of a Balloon Payment or
otherwise) that (i) permits such Borrower to make interest only payments for a
period, in the aggregate, of greater than 12 months or (ii) extends the maturity
date of any Mortgage Loan beyond the date that is 10 years prior to the
expiration of any related ground lease with respect to the Mortgaged Property
securing such unless the Special Servicer shall have delivered to the Trustee a
written confirmation from each Rating Agency to the effect that such extension
will not, by itself, cause such Rating Agency to downgrade, modify or withdraw
its rating on any outstanding Class of Certificates or (iii) extends the
maturity date of any Mortgage Loan beyond the date that is 5 years after the
original maturity date of such Mortgage Loan based on its original amortization
schedule or (iv) extends the maturity date of any Mortgage Loan to a date later
than two years prior to the Rated Final Distribution Date.
(b) In connection with any foreclosure or other acquisition, the Master
Servicer shall, at the direction of the Special Servicer, pay the costs and
expenses in any such proceedings as an Advance unless the Master Servicer
determines, in its good faith judgment, that such Advance would constitute a
Nonrecoverable Advance. The Master Servicer shall be entitled to reimbursement
of Advances (with interest at the Advance Rate) made pursuant to the preceding
sentence to the extent permitted by Section 3.6(ii) (or Section 3.6(iii), in the
case of interest at the Advance Rate).
If the Special Servicer elects to proceed with a non-judicial foreclosure
in accordance with the laws of the state where the related Mortgaged Property is
located, the Special Servicer shall not be required to pursue a deficiency
judgment against the related Borrower or any other liable party if the laws of
such state do not permit such a deficiency judgment after a non-judicial
foreclosure or if the Special Servicer determines, in its best judgment, that
the likely recovery if a deficiency judgment is obtained will not be sufficient
to warrant the cost, time, expense and/or exposure of pursuing such a deficiency
judgment and such determination is evidenced by an Officer's Certificate
delivered to the Trustee.
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In the event that title to any Mortgaged Property is acquired in
foreclosure and the related Mortgage Loan is canceled, such Mortgage Loan shall
(except for purposes of Section 9.1) be considered to be a Mortgage Loan held in
the Trust Fund until such time as the related REO Property shall be sold by the
Trust Fund and the Scheduled Principal Balance of each REO Mortgage Loan shall
be reduced by any Net REO Proceeds allocated to principal. Consistent with the
foregoing, for purposes of all calculations hereunder, so long as such Mortgage
Loan shall be considered to be an outstanding Mortgage Loan:
(i) it shall be assumed that, notwithstanding that the indebtedness
evidenced by the related Note shall have been discharged, such Note and, for
purposes of determining the Scheduled Principal Balance thereof, the related
amortization schedule in effect at the time of any such acquisition of title,
remain in effect; and
(ii) Net REO Proceeds received in any month shall be applied to amounts
that would have been payable under the related Note in accordance with the
terms of such Note. In the absence of such terms, Net REO Proceeds shall be
deemed to have been received first in payment of the accrued interest that
remained unpaid on the date that the related REO Property was acquired by the
Trust Fund; second in respect of the delinquent principal installments that
remained unpaid on such date; and thereafter, Net REO Proceeds received in
any month shall be applied to the payment of installments of principal and
accrued interest on such Mortgage Loan deemed to be due and payable in
accordance with the terms of such Note and such amortization schedule. If
such Net REO Proceeds exceed the Monthly Payment then payable, the excess
shall be treated as a Principal Prepayment received in respect of such
Mortgage Loan.
(c) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not acquire for the benefit of the Trust
Fund any personal property pursuant to this Section 3.10 unless either:
(i) such personal property is incident to real property (within the meaning
of Section 856(e)(1) of the Code) so acquired by the Special Servicer for the
benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an Opinion of
Counsel (which opinion shall be an expense of the Trust Fund) to the effect
that the holding of such personal property by the Lower-Tier REMIC will not
cause the imposition of a tax on the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC under the REMIC Provisions or cause the Lower-Tier
REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Certificate is outstanding.
(d) Notwithstanding any provision to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust Fund, obtain title to any
direct or indirect partnership interest or other equity interest in any Borrower
pledged pursuant to any pledge agreement unless the Special Servicer shall have
requested and received an Opinion of Counsel (which opinion shall be an expense
of the Trust Fund) to the effect that the holding of such
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partnership or other equity interest by the Trust Fund will not cause the
imposition of a tax on the Lower-Tier REMIC, the Middle-Tier REMIC or the
Upper-Tier REMIC under the REMIC Provisions or cause the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC at any
time that any Certificate is outstanding.
(e) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise obtain title to any direct or indirect partnership interest or other
equity interest in any Borrower pledged pursuant to a pledge agreement and
thereby be the beneficial owner of a Mortgaged Property, 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 Trustee, for the Trust Fund or
the Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Special Servicer has previously determined in
accordance with the Servicing Standard, based on an updated environmental site
assessment prepared within the past twelve (12) months by an Independent Person
who regularly conducts environmental assessments and consultation with
Independent counsel, that:
(A) such Mortgaged Property is in compliance in all material respects
with applicable environmental laws or, if not in compliance in all material
respects, the Special Servicer, after consultation with an environmental
consultant, has determined that it would be in the best economic interest
of the Trust Fund to take such actions as are necessary to bring such
Mortgaged Property in compliance therewith, and
(B) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could reasonably be required under any currently effective
federal, state or local law or regulation, or that, if any such Hazardous
Materials are present for which such action could reasonably be required,
the Special Servicer, after consultation with an environmental consultant,
has determined that it would be in the best economic interest of the Trust
Fund to take such actions with respect to such Mortgaged Property.
In the event that the environmental assessment last obtained by the Special
Servicer with respect to a Mortgaged Property indicates that such Mortgaged
Property may not be in compliance in all material respects with applicable
environmental laws or that Hazardous Materials may be present but does not
definitively establish such fact, the Special Servicer shall cause such further
environmental tests as the Special Servicer shall deem prudent to protect the
interests of Certificateholders to be conducted by an Independent Person who
regularly conducts such tests. Any such tests shall be deemed part of the
environmental site assessment obtained by the Special Servicer for purposes of
this Section 3.10.
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(f) The environmental assessment contemplated by Section 3.10 shall be
prepared by any Independent Person who regularly conducts environmental audits
for purchasers of commercial properties located in the same general area as the
Mortgaged Property with respect to which the Special Servicer is ordering such
environmental assessment, as determined by the Special Servicer in a manner
consistent with the Servicing Standard. The Master Servicer shall at the
direction of the Special Servicer advance the cost of preparation of such
environmental assessments unless the Master Servicer determines, in its good
faith judgment, that such Advance would be a Nonrecoverable Advance. The Master
Servicer shall be entitled to reimbursement of Advances (with interest at the
Advance Rate) made pursuant to the preceding sentence to the extent permitted
pursuant to Section 3.6.
(g) If the Special Servicer determines pursuant to Section 3.10(e)(A) that
a Mortgaged Property is not in compliance in all material respects with
applicable environmental laws but that it is in the best economic interest of
the Trust Fund to take such actions as are necessary to bring such Mortgaged
Property into compliance therewith, or if the Special Servicer determines
pursuant to Section 3.10(e)(B) that the circumstances referred to therein
relating to Hazardous Materials are present but that it is in the best economic
interest of the Trust Fund to take such action with respect to the
investigation, testing, containment, monitoring, clean-up or remediation of
Hazardous Materials affecting such Mortgaged Property as is required by law or
regulation, the Special Servicer shall take such action as it deems to be in the
best economic interest of the Trust Fund (with due consideration to the
avoidance of "mortgagee-in-possession," "owner" or "operator" status, as set
forth in this Section 3.10). None of the Special Servicer, the Master Servicer
or the Trustee shall be required to advance the cost of any such compliance,
containment, clean-up or remediation and such expense shall be an expense of the
Trust Fund.
(h) The Special Servicer shall report to the IRS and to the related
Borrower, in the manner required by applicable law, the information required to
be reported regarding any Mortgaged Property which is abandoned or foreclosed.
The Special Servicer shall deliver a copy of any such report to the Trustee.
(i) The costs of any Appraisal obtained pursuant to this Section 3.10 shall
be paid by the Master Servicer (or, if required by Section 3.22(b), the Trustee)
as an Advance and shall be reimbursable (with interest thereon at the Advance
Rate) from the Collection Account.
Section 3.11. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes, the Master Servicer shall immediately notify the
Trustee and the Custodian by 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
Collection Account pursuant to Section 3.5(a) have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Mortgage File.
From time to time upon request of the Master Servicer or Special Servicer,
and upon delivery to the Trustee and the Custodian of a Request for Release,
the Trustee shall
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promptly cause the Custodian to release the Mortgage File (or any portion
thereof) designated in such Request for Release to the Master Servicer or the
Special Servicer, as applicable. Upon receipt of (a) such Mortgage File (or
portion thereof) by the Custodian from the Master Servicer or Special Servicer,
as applicable, or (b) in the event of a liquidation or conversion of the related
Mortgage Loan into an REO Property, a certificate of a Servicing Officer stating
that such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation which are required to be deposited
into the Collection Account or Distribution Account have been so deposited, or
that such Mortgage Loan has become an REO Property, the Custodian shall return
the Request for Release to the Master Servicer or Special Servicer, as
applicable.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, necessary to the foreclosure or trustee's sale in respect of the
Mortgaged Property or to any legal action brought to obtain judgment against any
Borrower on the related Note or Mortgage or to obtain a deficiency judgment, or
to enforce any other remedies or rights provided by such Note or Mortgage or
otherwise available at law or in equity. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and a
statement as to the reason such documents or pleadings are required and that the
execution and delivery thereof by the Trustee will not invalidate or otherwise
affect the lien of the related Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale. All expenses of the
Trustee in connection with the foregoing paragraph shall be reimbursed pursuant
to Section 3.6.
SECTION 3.12. SERVICING COMPENSATION AND TRUSTEE FEES.
(a) As compensation for its activities hereunder, the Master Servicer shall
be entitled to the Servicing Fee, which shall be payable solely from receipts on
the related Mortgage Loans, and may be withheld from payments on account of
interest prior to deposit in the Collection Account, or may be withdrawn from
amounts on deposit in the Collection Account as set forth in Section 3.6(iv).
The Master Servicer's rights to the Servicing Fee may not be transferred in
whole or in part except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement. In addition,
the Master Servicer shall be entitled to receive, as additional servicing
compensation, any Prepayment Interest Surplus (subject to Section 3.25) and, to
the extent permitted by applicable law and the related Notes and Mortgages, any
late payment charges, late fees, "insufficient funds" check charges, Assumption
Fees, demand fees, loan modification fees, extension fees, Financial and Lease
Reporting Fees (to the extent such fees are not required to be remitted to the
related Borrower pursuant to the related Note), loan service transaction fees,
beneficiary statement charges, or similar items (but not including any Default
Interest, Prepayment Premiums, Yield Maintenance Charges or Excess Interest), in
each case to the extent received, with respect to any Mortgage Loan that is not
a Specially Serviced Mortgage Loan and not required to be deposited or retained
in the Collection Account pursuant to Section 3.5. The Master Servicer shall
also be entitled pursuant to, and to the extent provided in, Section 3.7(b) to
withdraw from the Collection Account and to receive from the Reserve Accounts
(to the extent not required to be paid to the related Borrower pursuant to the
related Mortgage Loan Documents or applicable law) any
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interest or other income earned on deposits therein, and the Master Servicer
shall also be entitled to any interest or other income earned on deposits in the
Interest Reserve Account as and to the extent set forth in Section 3.5(d)(iv).
As compensation for its activities hereunder, the Trustee shall be entitled
to the Trustee Fee with respect to each Mortgage Loan, which shall be paid
pursuant to Section 4.1. The Trustee shall pay the routine fees and expenses of
the Certificate Registrar, the Paying Agent, the Custodian and the
Authenticating Agent. The Trustee's rights to the Trustee Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Trustee's responsibilities and obligations under this Agreement.
Except as otherwise provided herein, the Master Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder,
and the Master Servicer shall pay expenses incurred by the Trustee in connection
with its activities hereunder as provided in Section 3.6.
(b) As compensation for its activities hereunder, the Special Servicer
shall be entitled to the Special Servicing Fee with respect to each Specially
Serviced Mortgage Loan, the Disposition Fee with respect to each Specially
Serviced Mortgage Loan or REO Property and the Workout Fee with respect to each
Corrected Mortgage Loan, which shall be payable from amounts on deposit in the
Collection Account as set forth in Section 3.6(iv). The Special Servicer's
rights to the Special Servicing Fee, Disposition Fee and Workout Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement.
The Special Servicer shall also be entitled pursuant to, and to the extent
provided in, Section 3.7(b) to withdraw from any REO Account any interest or
other income earned on deposits therein.
In addition, the Special Servicer shall be entitled to receive, as
additional Servicing Compensation, to the extent permitted by applicable law and
the related Notes and Mortgages, any late payment charges, late fees,
"insufficient funds" check charges, Assumption Fees, loan modification fees,
extension fees, Financial and Lease Reporting Fees (to the extent such fees are
not required to be remitted to the related Borrower pursuant to the related
Note), loan service transaction fees, beneficiary statement charges, demand
fees, loan modification fees, extension fees or similar items (but not including
any Default Interest, Prepayment Premiums, Yield Maintenance Charges or Excess
Interest), in each case to the extent received with respect to any Specially
Serviced Mortgage Loan and not required to be deposited or retained in the
Collection Account pursuant to Section 3.5.
Except as otherwise provided herein, the Special Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder.
(c) In addition to other Special Servicer compensation provided for in this
Agreement, and not in lieu thereof, the Special Servicer shall be entitled to
the Disposition Fee payable out of the Liquidation Proceeds prior to the deposit
of the related Net Liquidation Proceeds in the Collection Account.
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(d) The Master Servicer, the Special Servicer and the Trustee shall be
entitled to reimbursement from the Trust Fund for the unanticipated costs and
expenses incurred by them in the performance of their duties under this
Agreement which are "unanticipated expenses incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such expenses shall
include, by way of example and not by way of limitation, environmental
assessments, Appraisals in connection with foreclosure, the fees and expenses of
any administrative or judicial proceeding and expenses expressly identified as
reimbursable in Section 3.6(vi).
(e) No provision of this Agreement or of the Certificates shall require the
Master Servicer, the Special Servicer or the Trustee to expend or risk their own
funds or otherwise incur any financial liability in the performance of any of
their duties hereunder or thereunder, or in the exercise of any of their rights
or powers, if, in the good faith business judgment of the Master Servicer,
Special Servicer or Trustee, as the case may be, such expenditure or incurrence
of liability would constitute a Nonrecoverable Advance based on the standards
set forth in the definition of Nonrecoverable Advance.
If the Master Servicer, the Special Servicer or the Trustee receives a
request or inquiry from a Borrower, any Certificateholder or any other Person
the response to which would, in the Master Servicer's, the Special Servicer's or
the Trustee's good faith business judgment, require the assistance of
Independent legal counsel or other consultant to the Master Servicer, the
Special Servicer or the Trustee, the cost of which would not be an expense of
the Trust Fund hereunder, then the Master Servicer, the Special Servicer or the
Trustee, as the case may be, shall not be required to take any action in
response to such request or inquiry unless such Borrower or such
Certificateholder or such other Person, as applicable, makes arrangements for
the payment of the Master Servicer's, the Special Servicer's or the Trustee's
expenses associated with such counsel or other consultant (including, without
limitation, posting an advance payment for such expenses) satisfactory to the
Master Servicer, the Special Servicer or the Trustee, as the case may be, in its
sole discretion. Unless such arrangements have been made, the Master Servicer,
the Special Servicer or the Trustee, as the case may be, shall have no liability
to any Person for the failure to respond to such request or inquiry.
SECTION 3.13. REPORTS TO THE TRUSTEE; COLLECTION ACCOUNT STATEMENTS.
(a) The Master Servicer shall deliver to the Paying Agent, with a copy to
the Trustee and each Rating Agency, no later than the first Business Day
following each Determination Date, (i) the Master Servicer Remittance Report
with respect to the related Determination Date (which shall include, without
limitation, the amount of Available Funds for the related Distribution Date) and
(ii) a written statement of required P&I Advances for such Determination Date
together with the certificate and documentation required by the definition of
Nonrecoverable Advance related to any determination that any such P&I Advance
would constitute a Nonrecoverable Advance made as of such Determination Date.
(b) For so long as the Master Servicer makes deposits into and withdrawals
from the Collection Account, not later than five days after each Distribution
Date, the Master Servicer shall forward to the Trustee a statement prepared by
the Master Servicer setting forth the
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status of the Collection Account as of the close of business on the last
Business Day of the related Collection Period showing the aggregate amount of
deposits into and withdrawals from the Collection Account for each category of
deposit specified in Section 3.5 and each category of withdrawal specified in
Section 3.6 for such Collection Period. The Trustee and its agents and attorneys
may at any time during normal business hours, upon reasonable notice, inspect
and copy the books, records and accounts of the Master Servicer with respect to
the Mortgage Loans and the performance of its duties hereunder.
(c) The Trustee shall be entitled to rely conclusively on and shall not be
responsible for the content or accuracy of any information provided to it by the
Master Servicer or Special Servicer pursuant to this Agreement.
(d) The Master Servicer shall deliver to the Trustee for reporting to the
Certificateholders the following monthly reports with respect to the Mortgage
Loans: (i) a Comparative Financial Status Report, substantially in the form
attached hereto as Exhibit J; (ii) a Delinquent Loan Status Report,
substantially in the form attached hereto as Exhibit K; (iii) an Historical Loan
Modification Report, substantially in the form attached hereto as Exhibit L;
(iv) an Historical Loss Estimate Report, substantially in the form attached
hereto as Exhibit M; (v) an REO Status Report, substantially in the form
attached hereto as Exhibit N; and (vi) a Watch List Report, substantially in the
form attached hereto as Exhibit O. In addition, the Master Servicer shall
deliver to the Trustee for reporting to the Certificateholders (i) a quarterly
Operating Statement Analysis Report, substantially in the form attached hereto
as Exhibit P and (ii) an annual NOI Adjustment Worksheet, substantially in the
form attached hereto as Exhibit Q.
SECTION 3.14. ANNUAL STATEMENT AS TO COMPLIANCE.
The Master Servicer and Special Servicer shall deliver to the Trustee and
to the Depositor on or before April 15 of each year, beginning with April 15,
2000, an Officer's Certificate stating, as to each signatory thereof, (i) that a
review of the activities of the Master Servicer or Special Servicer, as
applicable, during the preceding calendar year (or such shorter period from the
Closing Date to the end of the related calendar year) and of its performance
under this Agreement has been made under such officer's supervision, (ii) that,
to the best of such officer's knowledge, based on such review, it has fulfilled
all of its obligations under this Agreement throughout such year (or such
shorter period), or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer, the nature and
status thereof and what action it proposes to take with respect thereto, (iii)
that, to the best of such officer's knowledge, each sub-servicer has fulfilled
its obligations under its sub-servicing agreement in all material respects, or,
if there has been a material default in the fulfillment of such obligations,
specifying each such default known to such officer and the nature and status
thereof, and (iv) whether it has received any notice regarding qualification, or
challenging the status, of the Upper-Tier REMIC, the Middle-Tier REMIC or
Lower-Tier REMIC as a REMIC from the IRS or any other governmental agency or
body.
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SECTION 3.15. ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
On or before April 15 of each year, beginning with April 15, 2000, the
Master Servicer and Special Servicer at its expense shall cause a firm of
nationally recognized Independent public accountants (who may also render other
services to the Master Servicer or Special Servicer, as applicable) which is a
member of the American Institute of Certified Public Accountants to furnish a
statement to the Trustee and to the Depositor, to the effect that such firm has
examined certain documents and records relating to the servicing of the Mortgage
Loans under this Agreement and that, on the basis of such examination conducted
substantially in compliance with generally accepted auditing standards and the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for FHLMC, such servicing has been conducted in compliance
with this Agreement except for such significant exceptions or errors in records
that, in the opinion of such firm, generally accepted auditing standards and the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for FHLMC require it to report, in which case such exceptions
and errors shall be so reported.
SECTION 3.16. ACCESS TO CERTAIN DOCUMENTATION.
(a) The Master Servicer and Special Servicer shall provide to any
Certificateholders that are federally insured financial institutions, the
Federal Reserve Board, the FDIC and the OTS and the supervisory agents and
examiners of such boards and such corporations, and any other governmental or
regulatory body to the jurisdiction of which any Certificateholder is subject,
access to the documentation regarding the Mortgage Loans required by applicable
regulations of the Federal Reserve Board, FDIC, OTS or any such governmental or
regulatory body, such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the Master
Servicer or Special Servicer, as applicable.
(b) Nothing in this Section 3.16 shall detract from the obligation of the
Master Servicer or Special Servicer to observe any applicable law or contractual
provision prohibiting or restricting disclosure of information with respect to
the Borrowers or the Mortgage Loans, and the failure of the Master Servicer or
Special Servicer, as applicable, to provide access as provided in this Section
3.16 as a result of such obligation shall not constitute a breach of this
Section 3.16.
SECTION 3.17. TITLE AND MANAGEMENT OF REO PROPERTIES.
(a) In the event that title to any Mortgaged Property is acquired for the
benefit of Certificateholders in foreclosure, by deed in lieu of foreclosure or
upon abandonment or reclamation from bankruptcy, the deed or certificate of sale
shall be taken in the name of the Trustee, or its nominee (which shall not
include the Master Servicer or Special Servicer), or a separate trustee or
co-trustee, on behalf of the Trust Fund. The Special Servicer shall maintain
accurate records with respect to each related REO Property reflecting the status
of taxes, assessments and other similar items that are or may become a lien on
such REO Property and the status of insurance premiums payable with respect
thereto. The Special Servicer, on behalf of the
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Trust Fund, shall dispose of any REO Property by the close of the third tax year
following the taxable year in which the Trust Fund acquired such property,
unless (i) the Special Servicer, on behalf of the Lower-Tier REMIC, has applied
for and received an extension of such period pursuant to Sections 856(e)(3) and
860G(a)(8)(A) of the Code, in which case the Special Servicer shall sell such
REO Property within the applicable extension period or (ii) the Special Servicer
seeks and subsequently receives an Opinion of Counsel (which opinion shall be an
expense of the Trust Fund), addressed to the Special Servicer and the Trustee,
to the effect that the holding by the Trust Fund of such REO Property for an
additional specified period will not cause such REO Property to fail 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) at any time that any Certificate or Middle-Tier Interest is
outstanding, in which case the Special Servicer shall sell such REO Property
within the additional specified period subject to any conditions set forth in
such Opinion of Counsel. The Special Servicer, on behalf of the Trust Fund,
shall dispose of any REO Property held by the Trust Fund prior to the last day
of the period (taking into account extensions) within which such REO Property is
required to be disposed of pursuant to the provisions of the immediately
preceding sentence in a manner provided under Section 3.18 hereof. The Special
Servicer shall manage, conserve, protect and operate each REO Property for the
Certificateholders solely for the purpose of its disposition and sale in a
manner which does not cause such REO Property to fail 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)).
(b) The Special Servicer shall have full power and authority, subject only
to the specific requirements and prohibitions of this Agreement, to do any and
all things in connection with any REO Property as are consistent with the manner
in which the Special Servicer manages and operates similar property owned or
managed by the Special Servicer or any of its Affiliates, all on such terms and
for such period as the Special Servicer deems to be in the best interests of
Certificateholders, and, in connection therewith, the Special Servicer shall
agree to the payment of management fees that are consistent with general market
standards. The Special Servicer shall segregate and hold all revenues received
by it with respect to any REO Property separate and apart from its own funds and
general assets and shall establish and maintain with respect to any REO Property
a segregated custodial account (each, an "REO Account"), each of which shall be
an Eligible Account and shall be entitled "[Name of Trustee], as Trustee, in
trust for Holders of Prudential Securities Secured Financing Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2, REO Account." The
Special Servicer shall be entitled to any interest or investment income earned
on funds deposited in an REO Account to the extent provided in Section 3.7(b).
The Special Servicer shall deposit or cause to be deposited in the related REO
Account within one (1) Business Day after receipt all REO Proceeds received by
it with respect to any REO Property (other than Liquidation Proceeds), and shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of such REO Property and for other Property Protection Expenses with
respect to such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
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(ii) all real estate taxes and assessments in respect of such REO Property
that may result in the imposition of a lien thereon; and
(iii) all costs and expenses reasonable and necessary to protect, maintain,
manage, operate, repair and restore such REO Property, including any property
management fees.
To the extent that such REO Proceeds are insufficient for the purposes set
forth in clauses (i) through (iii) above, the Master Servicer (or, in the event
the Master Servicer is unable to perform, the Trustee) shall make an Advance
equal to the amount of such shortfall unless the Master Servicer determines, in
its good faith judgment, that such Advance would be a Nonrecoverable Advance.
The Master Servicer shall be entitled to reimbursement of such Advances (with
interest at the Advance Rate) made pursuant to the preceding sentence, to the
extent permitted pursuant to Section 3.6. The Special Servicer shall remit to
the Master Servicer from each REO Account for deposit in the Collection Account
on a monthly basis prior to the related Remittance Date the Net REO Proceeds
received or collected from the related REO Property, except that in determining
the amount of such Net REO Proceeds, the Special Servicer may retain in such REO
Account reasonable reserves for repairs, replacements and necessary capital
improvements and other related expenses.
Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New Lease if
the New Lease, by its terms, will give rise to any income that does not
constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other
than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property, other than
the repair or maintenance thereof or 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 related Mortgage Loan became imminent, all within the meaning
of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate or perform any construction work on, or allow any
Person (other than an Independent Contractor) to Directly Operate or perform
any construction work on, any REO Property on, any date more than 90 days
after its date of acquisition by the Trust Fund;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund) 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 (determined without regard
to the exception applicable for purposes of Section 860D(a) of the Code) at any
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time that it is held by the Trust Fund, in which case the Special Servicer may
take such actions as are specified in such Opinion of Counsel.
The Special Servicer shall be required to contract with an Independent
Contractor for the operation and management of any REO Property within 90 days
of the Trust Fund's acquisition thereof (unless the Special Servicer shall have
provided the Trustee with an Opinion of Counsel that the operation and
management of such REO Property other than through an Independent Contractor
shall not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Code Section 860G(a)(8)) (which opinion shall be an
expense of the Trust Fund), provided that:
(i) the terms and conditions of any such contract shall be reasonable and
customary for the area and type of property and shall not be inconsistent
herewith;
(ii) any such contract shall require, or shall be administered to require,
that the Independent Contractor pay all costs and expenses incurred in
connection with the operation and management of such REO Property, including
those listed above, and remit all related revenues (net of such costs and
expenses) to the Special Servicer as soon as practicable, but in no event
later than thirty days following the receipt thereof by such Independent
Contractor;
(iii) none of the provisions of this Section 3.17(b) 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 Trust Fund or the Trustee on behalf of the Certificateholders with
respect to the operation and management of any such REO Property; and
(iv) the Special Servicer shall be obligated with respect thereto to the
same extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(c) Promptly following any acquisition by the Trust Fund of an REO
Property, the Special Servicer shall obtain (i) an update of any Appraisal
performed pursuant to Section 3.10 which is more than six months old, or (ii) to
the extent that an Appraisal has not been obtained pursuant to such Section, an
Appraisal of such REO Property by an Independent appraiser familiar with the
area in which such REO Property is located in order to determine the fair market
value of such REO Property, and shall notify the Depositor and the Trustee of
the results of such Appraisal. The cost of any such Appraisal shall be an
expense of the Trust Fund.
(d) When and as necessary, the Special Servicer shall send to the Trustee a
statement prepared by the Special Servicer setting forth the amount of net
income or net loss, as
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determined for federal income tax purposes, resulting from the operation and
management of a trade or business on, the furnishing or rendering of a
non-customary service to the tenants of, or the receipt of any other amount not
constituting Rents from Real Property in respect of, any REO Property in
accordance with Section 3.17(b).
SECTION 3.18. SALE OF SPECIALLY SERVICED MORTGAGE LOANS AND REO PROPERTIES.
(a) With respect to any Specially Serviced Mortgage Loan or REO Property
which the Special Servicer has determined to sell in accordance with Section
3.10 or otherwise, the Special Servicer shall deliver to the Trustee an
Officer's Certificate to the effect that the Special Servicer has determined to
sell such Specially Serviced Mortgage Loan or REO Property in accordance with
this Section 3.18. The Special Servicer may then offer to sell to any Person
such Specially Serviced Mortgage Loan or such REO Property but shall, in any
event, so 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
within the period specified in Section 3.17(a). The Special Servicer shall
deliver such Officer's Certificate and give the Trustee not less than ten
Business Days prior written notice of its intention to sell such Specially
Serviced Mortgage Loan or REO Property, in which case the Special Servicer shall
accept any offer received from any Person that is determined by the Special
Servicer to be a fair price, as determined in accordance with Section 3.18(b),
for such Specially Serviced Mortgage Loan or REO Property if the offeror is a
Person other than an Interested Person, or is determined to be such a price by
the Trustee if the offeror is an Interested Person; provided, however, that the
Trustee shall be entitled to engage at the expense of the Trust Fund an
Independent appraiser to determine whether the offer is a fair price, provided,
however, that any offer by an Interested Person in the amount of the Repurchase
Price shall be deemed to be a fair price. Notwithstanding anything to the
contrary herein, neither the Trustee in its individual capacity nor any of its
Affiliates may make an offer or purchase any Specially Serviced Mortgage Loan or
any REO Property pursuant hereto.
In addition, in the event that the Special Servicer receives more than one
fair offer with respect to any Specially Serviced Mortgage Loan or REO Property,
the Special Servicer may accept an offer that is not the highest fair offer if
it determines, in accordance with the Servicing Standard, that acceptance of
such offer would be in the best interests of the Certificateholders (for
example, if the prospective buyer making the lower offer is more likely to
perform its obligations, or the terms offered by the prospective buyer making
the lower offer are more favorable). In the event that the Special Servicer
determines with respect to any REO Property that the offers being made with
respect thereto are not in the best interests of the Certificateholders and that
the end of the period referred to in Section 3.17(a) with respect to such REO
Property is approaching, the Special Servicer shall seek an extension of such
period or an Opinion of Counsel in the manner described in Section 3.17(a) and
take the actions specified in Section 3.17(a); provided, however, that the
Special Servicer shall use its reasonable best efforts in accordance with the
Servicing Standard, to sell any REO Property no later than the day prior to the
Determination Date immediately prior to the Scheduled Final Distribution Date of
the Class O Certificates.
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(b) In determining whether any offer received represents a fair price for
any Specially Serviced Mortgage Loan or any REO Property, the Special Servicer
or the Trustee may conclusively rely on the opinion of an Independent appraiser
or other expert in real estate matters retained by the Special Servicer or the
Trustee at the expense of the Trust Fund. In determining whether any offer
constitutes a fair price for any Specially Serviced Mortgage Loan or any REO
Property, the Special Servicer or the Trustee (or, if applicable, such
appraiser) shall take into account, and any appraiser or other expert in real
estate matters shall be instructed to take into account, the Appraisal obtained
pursuant to Section 3.10(a) and, as applicable, among other factors, the period
and amount of any delinquency on such Specially Serviced Mortgage Loan, the
physical (including environmental) condition of the related Mortgaged Property
or such REO Property, the state of the local economy and the Trust Fund's
obligation to dispose of any REO Property within the time period specified in
Section 3.17(a).
(c) Subject to the provisions of Section 3.17, the Special Servicer shall
act on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Specially Serviced
Mortgage Loan or REO Property, including the collection of all amounts payable
in connection therewith. Any sale of a Specially Serviced Mortgage Loan or any
REO Property shall be without recourse to, or representation or warranty by, the
Trustee, the Depositor, the Master Servicer, the Special Servicer or the Trust
Fund (except that any contract of sale and assignment and conveyance documents
may contain customary warranties of title, so long as the only recourse for
breach thereof is to the Trust Fund), and, if such sale is consummated in
accordance with the duties of the Special Servicer, the Master Servicer, the
Depositor and the Trustee pursuant to the terms of this Agreement, no such
Person who so performed shall have any liability to the Trust Fund or any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(d) Net Liquidation Proceeds related to any such sale shall be promptly,
and in any event within one (1) Business Day following receipt thereof,
deposited in the Collection Account in accordance with Section 3.5(a)(iv).
SECTION 3.19. INSPECTIONS; ASSET STATUS REPORT.
The Master Servicer (or, with respect to Specially Serviced Mortgage Loans
and REO Properties, the Special Servicer) shall inspect or cause to be inspected
(at its own expense) each Mortgaged Property at such times and in such manner as
are consistent with the Servicing Standard, but in any event (i) inspect each
Mortgaged Property at least once every 24 months where the related Mortgage Loan
has an outstanding principal amount of less than $2 million or where the REO
Property has a market value (based on the most recent Appraisal) of less than $2
million, and 12 months for all other Mortgaged Properties, with the first such
inspection being completed on or prior to August 31, 2000 unless each of the
Rating Agencies has confirmed in writing that a longer period (which may not
exceed 24 months) between inspections shall not result, in and of itself, in a
downgrading, withdrawal or qualification of the rating then assigned by such
Rating Agency to any Class of the Certificates; (ii) if the Master Servicer or
Special Servicer retains any Financial and Lease Reporting Fees pursuant to
Section 3.12, each related Mortgaged Property shall be inspected by the Master
Servicer or Special Servicer, as applicable, as soon as practicable thereafter,
except to the extent such Mortgaged Property has been
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inspected by the Master Servicer or Special Servicer within the immediately
preceding 120 days; and (iii) if any Monthly Payment becomes more than 60 days
delinquent (without giving effect to any grace period permitted under the
related Note or Mortgage), each related Mortgaged Property shall be inspected by
the Special Servicer (at its own expense) as soon as practicable thereafter.
The Special Servicer will prepare a report (an "Asset Status Report") for
each Mortgage Loan which becomes a Specially Serviced Mortgage Loan not later
than 30 days after the servicing of such Mortgage Loan is transferred to the
Special Servicer. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced Mortgage Loan and
the reasons for such Mortgage Loan becoming a Specially Serviced Mortgage
Loan and any negotiations with the related Borrower;
(ii) a discussion of the legal and environmental considerations reasonably
known to the Special Servicer, consistent with the Servicing Standard, that
are applicable to the exercise of remedies and to the enforcement of any
related guaranties or other collateral for such Specially Serviced Mortgage
Loan and whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially Serviced
Mortgage Loan might be returned to performing status and returned to the
Master Servicer for regular servicing or otherwise realized upon and the
anticipated time frame for accomplishing such recommendations;
(v) the most recently determined Appraised Value of the Mortgaged Property
together with the assumptions used in the calculation thereof; and
(vi) such other information as the Special Servicer deems relevant in light
of the Servicing Standard.
Each Asset Status Report will be delivered to the Master Servicer, the
Directing Certificateholder and the Rating Agencies. The Directing
Certificateholder may object to any Asset Status Report within 10 Business Days
of receipt; provided, however, that the Special Servicer shall implement the
recommended action as outlined in such Asset Status Report if it makes an
affirmative determination that such objection is not in the best interest of all
the Certificateholders. In connection with making such affirmative
determination, the Special Servicer will request a vote by all the
Certificateholders. If the majority of Certificateholders fail within five days
after the notice of such vote is sent to them to reject such Asset Status
Report, the Special Servicer shall implement the same. If the majority of
Certificateholders reject the Asset Status Report, the Special Servicer shall
revise such Asset Status Report as set forth below. If the Directing
Certificateholder does not disapprove an Asset Status Report within 10 Business
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Days, the Special Servicer shall implement the recommended action as outlined in
such Asset Status Report.
If the Directing Certificateholder disapproves such Asset Status Report and
the Special Servicer has not made the affirmative determination described above,
the Special Servicer will revise such Asset Status Report as soon as practicable
thereafter, but in no event later than 30 days after such disapproval. The
Special Servicer will revise such Asset Status Report until the earlier of (a)
the Directing Certificateholder's failure to disapprove such revised Asset
Status Report as described above; or (b) until the Special Servicer makes a
determination that such objection is not in the best interests of the
Certificateholders; or (c) the passage of ninety (90) days from the date of
preparation of the first Asset Status Report. The Special Servicer shall
implement the recommended action as outlined in such Asset Status Report in a
commercially reasonable manner promptly, but no more than 30 days after the
event described in clause (a) of the preceding sentence, no more than 10 days
after the event described in clause (b) of the preceding sentence, and no more
than 5 days after the event described in clause (c) of the preceding sentence.
The Special Servicer will not be required to take or refrain from taking
any action in connection with any Asset Status Report that would cause it to
violate applicable law, this Agreement, including the Servicing Standard, or the
REMIC Provisions. No direction of the Directing Certificateholder shall (A)
require or cause the Special Servicer to violate the terms of a Specially
Serviced Mortgage Loan, applicable law or any provision of this Agreement,
including the Servicing Standard and to maintain the REMIC status of each Trust
REMIC, (B) result in the imposition of a "prohibited transaction" or "prohibited
contribution" tax under the REMIC Provisions, (C) expose the Master Servicer,
the Special Servicer, the Depositor, any Mortgage Loan Seller, the Trust Fund,
the Trustee or their officers, directors, employees or agents to any claim, suit
or liability, or (D) materially expand the scope of the Special Servicer's or
the Master Servicer's responsibilities under this Agreement.
SECTION 3.20. AVAILABLE INFORMATION AND NOTICES.
The Master Servicer or Special Servicer, if applicable, shall promptly give
notice to the Trustee, who will provide a copy to each Certificateholder, each
Rating Agency, the Depositor, the Underwriters, the related Mortgage Loan
Sellers and the Master Servicer and Special Servicer (if affecting a Specially
Serviced Loan), of (a) any notice from a Borrower or insurance company regarding
an upcoming voluntary or involuntary prepayment (including that resulting from a
casualty or condemnation) of all or part of the related Mortgage Loan (provided
that a request by a Borrower or other party for a quotation of the amount
necessary to satisfy all obligations with respect to a Mortgage Loan shall not,
in and of itself, be deemed to be such notice); and (b) any other occurrence
known to it with respect to a Mortgage Loan or REO Property that the Master
Servicer or Special Servicer determines, in accordance with the Servicing
Standard, would have a material effect on such Mortgage Loan or REO Property,
which notice shall include an explanation as to the reason for such material
effect (provided that any extension of the term of any Mortgage Loan shall be
deemed to have a material effect).
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Neither the Master Servicer nor the Special Servicer shall be responsible
for the accuracy or completeness of any information supplied to it by a Borrower
or otherwise for inclusion in any such notice, and the Master Servicer, the
Special Servicer and the Trustee shall be indemnified and held harmless by the
Trust Fund against any loss, liability or expense incurred in connection with
any legal action relating to any statement or omission or alleged statement or
omission therein, including any liability related to the inclusion of such
information in any report filed with the Commission.
In addition to the other reports and information made available and
distributed to the Depositor, the Underwriters, the Trustee or the
Certificateholders pursuant to other provisions of this Agreement, the Master
Servicer and Special Servicer shall, in accordance with such reasonable rules
and procedures as they may adopt (which may include the requirement that an
agreement governing the availability, use and disclosure of such information,
and which may provide indemnification to the Master Servicer or Special
Servicer, as applicable, for any liability or damage that may arise therefrom,
be executed to the extent the Master Servicer or Special Servicer, as
applicable, deems such action to be necessary or appropriate), also make
available any information relating to the Mortgage Loans, the Mortgaged
Properties or the Borrowers for review by the Depositor, the Underwriters, the
Trustee, the Certificateholders and any other Persons to whom the Master
Servicer or Special Servicer, as the case may be, believes such disclosure is
appropriate, in each case except to the extent doing so is prohibited by
applicable law or by any documents related to a Mortgage Loan.
Upon reasonable prior request, the Trustee shall also make available at its
offices primarily responsible for administration of the Trust Fund, during
normal business hours, for review by the Depositor, the Rating Agencies, any
Certificateholder, the Underwriters, any Person identified to the Trustee by a
Certificateholder as a prospective transferee of a Certificate and any other
Persons to whom the Trustee believes such disclosure is appropriate, the
following items: (i) this Agreement, (ii) all monthly statements to
Certificateholders delivered since the Closing Date pursuant to Section 4.2(a),
(iii) all annual statements as to compliance delivered to the Trustee and the
Depositor pursuant to Section 3.14 and (iv) all annual Independent accountants'
reports delivered to the Trustee and the Depositor pursuant to Section 3.15. The
Master Servicer or Special Servicer, as appropriate, shall make available at its
offices during normal business hours, for review by the Depositor, the
Underwriters, the Trustee, the Rating Agencies, any Certificateholder, any
Person identified to the Master Servicer or Special Servicer, as applicable, by
a Certificateholder as a prospective transferee of a Certificate and any other
Persons to whom the Master Servicer or Special Servicer, as applicable, believes
such disclosure is appropriate, the following items: (i) the inspection reports
prepared by or on behalf of the Master Servicer or Special Servicer, as
applicable, in connection with the property inspections conducted by the Master
Servicer or Special Servicer, as applicable, pursuant to Section 3.19, (ii) any
and all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into by the Master Servicer or Special Servicer and (iii) any and all
Officer's Certificates and other evidence delivered to the Trustee and the
Depositor to support the Master Servicer's determination that any Advance was,
or if made would be, a Nonrecoverable Advance, in each case except to the extent
doing so is prohibited by applicable laws or by any documents related to a
Mortgage Loan. Copies of any and all of the foregoing items shall be available
from the Master Servicer, the Special Servicer or the Trustee, as applicable,
upon request. The Master Servicer,
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the Special Servicer and the Trustee shall be permitted to require payment of a
sum sufficient to cover the reasonable costs and expenses incurred by it in
providing copies of or access to any information requested in accordance with
the previous sentence (provided that such costs and expenses arising from any
such request by a Rating Agency will be paid by the Master Servicer).
The Master Servicer shall, on behalf of the Trust Fund, prepare, sign and
file with the Commission any and all reports, statements and information
respecting the Trust Fund that the Master Servicer or the Trustee determines are
required to be filed with the Commission pursuant to Sections 13(a) or 15(d) of
the 1934 Act, each such report, statement and information to be filed on or
prior to the required filing date for such report, statement or information.
Notwithstanding the foregoing, the Depositor shall file with the Commission,
within fifteen days of the Closing Date, a Current Report on Form 8-K together
with this Agreement.
None of the Trustee, the Master Servicer and Special Servicer will be
responsible for the accuracy or completeness of any information supplied to it
by a Borrower or other third party for inclusion in any notice or in any other
report or information furnished or provided by the Master Servicer, the Special
Servicer or the Trustee hereunder, and the Master Servicer, the Special Servicer
and the Trustee shall be indemnified and held harmless by the Trust Fund against
any loss, liability or expense incurred in connection with any legal action
relating to any statement or omission or alleged statement or omission therein,
including any liability related to the inclusion of such information in any
report filed with the Commission.
SECTION 3.21. RESERVE ACCOUNTS.
The Master Servicer shall administer each Reserve Account in accordance
with the related Note, Mortgage, Loan Agreement and other Mortgage Loan
Documents.
SECTION 3.22. PROPERTY ADVANCES.
(a) The Master Servicer (or, to the extent provided in Section 3.22(b), the
Trustee) shall make any Property Advances as and to the extent otherwise
required pursuant to the terms hereof. For purpose of calculating distributions
to the Certificateholders, Property Advances shall not be considered to increase
the principal balance of any Mortgage Loan, notwithstanding that the terms of
such Mortgage Loan so provide.
(b) The Master Servicer shall notify the Trustee in writing promptly upon,
and in any event within one (1) Business Day after, becoming aware that it will
be financially unable to make any Property Advance required to be made pursuant
to the terms hereof, and in connection therewith, shall set forth in such notice
the amount of such Property Advance, the Person to whom it should be paid, and
the circumstances and purpose of such Property Advance, and shall set forth
therein information and instructions for the payment of such Property Advance,
and, on the date specified in such notice for the payment of such Property
Advance, or, if no such date is specified, then within one (1) Business Day
following such notice, the Trustee shall be deemed to have given the notice
permitted to be given under Section 7.1 and to have replaced the Master Servicer
as successor master servicer, and the Trustee, in such capacity, shall pay the
amount of such Property Advance in accordance with such information and
instructions.
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(c) Notwithstanding anything herein to the contrary, neither the Master
Servicer nor the Trustee shall be obligated to make a Property Advance as to any
Mortgage Loan or REO Property if the Master Servicer or the Trustee as
applicable, determines that such Property Advance, if made, would be a
Nonrecoverable Advance. The Trustee shall be entitled to rely conclusively on
any determination by the Master Servicer that a Property Advance, if made, would
be a Nonrecoverable Advance. The Trustee, in determining whether or not a
Property Advance previously made is, or a proposed Property Advance, if made,
would be, a Nonrecoverable Advance shall be subject to the standards applicable
to the Master Servicer hereunder.
(d) The Master Servicer and the Trustee, as applicable, shall be entitled
to, and the Master Servicer hereby covenants and agrees to promptly seek and
effect, the reimbursement of Property Advances to the extent permitted pursuant
to Section 3.6(ii) of this Agreement, together with any related Advance Interest
Amount in respect of such Property Advances.
SECTION 3.23. APPOINTMENT OF SPECIAL SERVICER.
(a) National Realty Funding L.C. is hereby appointed as the initial Special
Servicer to service each Specially Serviced Mortgage Loan.
(b) Reserved.
(c) The Special Servicer may be removed without cause and a successor
special servicer appointed by the Directing Certificateholder; provided that if
any such removal is made without cause, then the costs of transferring the
servicing responsibilities to a successor special servicer will be paid by the
Controlling Class.
(d) The removal of the Special Servicer and the appointment of a successor
special servicer pursuant to Section 3.23(c) shall not be effective until (i)
the successor special servicer has assumed in writing all of the
responsibilities, duties and liabilities of the Special Servicer hereunder
pursuant to an agreement satisfactory to the Trustee, and (ii) each of the
Rating Agencies confirms to the Trustee in writing that such appointment and
assumption shall not result, in and of itself, in a downgrading, withdrawal or
qualification of the rating then assigned by such Rating Agency to any Class of
Certificates and (iii) if the Special Servicer is removed without cause, the
Certificateholders who voted to remove the Special Servicer have delivered to
the Trustee and the removed Special Servicer such Certificateholders' joint and
several undertaking to pay any expenses incurred by the Trustee in connection
with the removal and the appointment of the successor special servicer.
(e) The appointment of any such successor special servicer shall not
relieve the Master Servicer or the Trustee of their respective obligations to
make Advances as set forth herein. Any termination fee payable to the terminated
Special Servicer shall be paid by the Certificateholders so terminating the
Special Servicer and shall not in any event be an expense of the Trust Fund.
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SECTION 3.24. TRANSFER OF SERVICING BETWEEN MASTER SERVICER AND SPECIAL
SERVICER; RECORD KEEPING.
(a) Upon determining that any Mortgage Loan has become a Specially Serviced
Mortgage Loan, the Master Servicer shall immediately give notice thereof,
together with a copy of the related Mortgage File, to the Special Servicer and
shall use its reasonable best efforts to provide the Special Servicer with all
information, documents (but excluding the original documents constituting such
Mortgage File) and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to such Mortgage Loan and
reasonably requested by the Special Servicer to enable it to assume its duties
hereunder with respect thereto without acting through a sub-servicer. The Master
Servicer shall use its reasonable best efforts to comply with the preceding
sentence within five Business Days of the date such Mortgage Loan became a
Specially Serviced Mortgage Loan and in any event shall continue to act as
Master Servicer and administrator of such Mortgage Loan until the Special
Servicer has commenced the servicing of such Mortgage Loan, which shall occur
upon the receipt by the Special Servicer of the information, documents and
records referred to in the preceding sentence. With respect to each Mortgage
Loan that becomes a Specially Serviced Mortgage Loan, the Master Servicer shall
instruct the related Borrower to continue to remit all payments in respect of
such Mortgage Loan to the Master Servicer. The successor master servicer or
special servicer, as applicable, may agree that, notwithstanding the preceding
sentence, with respect to each Mortgage Loan that became a Specially Serviced
Mortgage Loan, the Master Servicer may instruct the related Borrower to remit
all payments in respect of such Specially Serviced Mortgage Loan to the Special
Servicer. The Special Servicer agrees to remit all payments received by it in
respect of such Specially Serviced Mortgage Loans to the Master Servicer within
one Business Day after receipt.
Upon determining that no event has occurred and is continuing with respect
to a Mortgage Loan that causes such Mortgage Loan to be a Specially Serviced
Mortgage Loan, the Special Servicer shall immediately give notice thereof to the
Master Servicer and upon giving such notice, such Mortgage Loan shall cease to
be a Specially Serviced Mortgage Loan pursuant to the proviso to the definition
of Specially Serviced Mortgage Loan, the Special Servicer's obligation to
service such Mortgage Loan shall terminate and the obligations of the Master
Servicer to service and administer such Mortgage Loan as a Mortgage Loan that is
not a Specially Serviced Mortgage Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loan, the Special Servicer
shall provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (to the
extent such documents are in the possession of the Special Servicer) and copies
of any additional related Mortgage Loan information, including correspondence
with the related Borrower, and the Special Servicer shall provide copies of all
of the foregoing to the Master Servicer.
(c) Not later than the Business Day preceding each date on which the Master
Servicer is required to furnish a report under Section 3.13 to the Trustee, the
Special Servicer shall deliver to the Master Servicer a written statement
describing, on a Mortgage Loan-by-Mortgage Loan basis, (1) the amount of all
payments on account of interest received on each
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Specially Serviced Mortgage Loan; the amount of all payments on account of
principal, including Principal Prepayments, on each Specially Serviced Mortgage
Loan; the amount of Condemnation Proceeds, Insurance Proceeds and Liquidation
Proceeds received with respect to each Specially Serviced Mortgage Loan; and the
amount of net income or net loss, as determined for management of a trade or
business on, or the furnishing or rendering of a non-customary service to the
tenants of, each REO Property that previously secured a Specially Serviced
Mortgage Loan, in each case in accordance with Section 3.17 and (2) such
additional information relating to the Specially Serviced Mortgage Loans as the
Master Servicer reasonably requests to enable it to perform its duties under
this Agreement.
(d) Notwithstanding the provisions of the preceding subsection (c), the
Master Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and shall provide the Special Servicer
with any information reasonably required by the Special Servicer to perform its
duties under this Agreement. The Special Servicer shall provide the Master
Servicer with any information reasonably required by the Master Servicer to
perform its duties under this Agreement.
SECTION 3.25. ADJUSTMENT OF SERVICING COMPENSATION IN RESPECT OF PREPAYMENT
INTEREST SHORTFALLS.
(a) The aggregate amount of the Prepayment Interest Surplus and Servicing
Fees (in that order) that the Master Servicer shall be entitled to receive with
respect to all of the Mortgage Loans on each Distribution Date shall be offset
on such Distribution Date by an amount equal to the aggregate of the Prepayment
Interest Shortfalls for such Distribution Date with respect to all Mortgage
Loans. The Master Servicer shall include the amount by which the aggregate
Servicing Fees and Prepayment Interest Surplus is offset pursuant to this
Section 3.25 as part of the Available Funds on such Distribution Date. The
amount of any offset against the aggregate Servicing Fees and Prepayment
Interest Surplus with respect to any Distribution Date under this Section 3.25
shall be limited to the aggregate amount of the Servicing Fees and Prepayment
Interest Surplus otherwise payable to the Master Servicer on such Distribution
Date (without adjustment on account of Prepayment Interest Shortfalls) and the
rights of the Certificateholders to offset of the aggregate Prepayment Interest
Shortfalls shall not be cumulative. To the extent the Master Servicer shall
already have withdrawn or withheld Servicing Compensation required to pay
Prepayment Interest Shortfalls, the Master Servicer shall promptly deposit in
the Collection Amount such amounts to the extent required to pay Prepayment
Interest Shortfalls hereunder.
(b) To the extent that the Master Servicer and the Special Servicer are the
same Person, the aggregate amount of the Special Servicing Fees that the Special
Servicer shall be entitled to receive with respect to all of the Specially
Serviced Mortgage Loans on each Distribution Date shall be offset on such
Distribution Date by an amount equal to the excess of (X) the aggregate of the
Prepayment Interest Shortfalls for such Distribution Date with respect to all
Mortgage Loans over (Y) the amount of Servicing Fees offset against such
Prepayment Interest Shortfalls in accordance with Section 3.25(a). The Master
Servicer shall include the amount by which the aggregate Special Servicing Fee
is offset pursuant to this Section 3.25 as part of the Available Funds on such
Distribution Date. The amount of any offset against the
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aggregate Special Servicing Fee with respect to any Distribution Date under this
Section 3.25 shall be limited to the aggregate amount of the Special Servicing
Fees otherwise payable to the Special Servicer on such Distribution Date
(without adjustment on account of Prepayment Interest Shortfalls) and the rights
of the Certificateholders to offset of the aggregate Prepayment Interest
Shortfalls shall not be cumulative.
ARTICLE IV.
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.1. DISTRIBUTIONS.
(a) (I) On each Remittance Date, to the extent of Available Funds, amounts
held in the Collection Account shall be withdrawn and remitted to the Trustee
for deposit in the Middle-Tier Distribution Account in the following amounts:
(i) First, an amount equal to the accrued and unpaid Trustee Fee;
(ii) Second, (A) to the Class A-1-L Interest and Class A-2-L Interest in
respect of interest pro rata in accordance with the Interest Distribution
Amount therefor, plus, for each such Class, an amount equal to the aggregate
unpaid Interest Shortfalls previously allocated to such Class on any prior
Distribution Date, (B) to the Class B-L Interest in respect of interest, (1)
the portion of the Interest Distribution Amount therefor that is in excess of
interest thereon at the Class B Pass-Through Rate and (2) a proportionate
amount of any unpaid Interest Shortfalls allocated to the Class B-L Interest
on any prior Distribution Date; (C) to the Class C-L Interest in respect of
interest, (1) the portion of the Interest Distribution Amount therefor that
is in excess of interest thereon at the Class C Pass-Through Rate and (2) a
proportionate amount of any unpaid Interest Shortfalls allocated to the Class
C-L Interest on any prior Distribution Date; (D) to the Class D-L Interest in
respect of interest, (1) the portion of the Interest Distribution Amount
therefor that is in excess of interest thereon at the Class D Pass-Through
Rate and (2) a proportionate amount of any unpaid Interest Shortfalls
allocated to the Class D-L Interest on any prior Distribution Date; (E) to
the Class E-L Interest in respect of interest, (1) the portion of the
Interest Distribution Amount therefor that is in excess of interest thereon
at the Class E Pass-Through Rate and (2) a proportionate amount of any unpaid
Interest Shortfalls allocated to the Class E-L Interest on any prior
Distribution Date; (F) to the Class F-L Interest in respect of interest, (1)
the portion of the Interest Distribution Amount therefor that is in excess of
interest thereon at the Class F Pass-Through Rate and (2) a proportionate
amount of any unpaid Interest Shortfalls allocated to the Class F-L Interest
on any prior Distribution Date; (G) to the Class G-L Interest in respect of
interest, (1) the portion of the Interest Distribution Amount therefor in
excess of interest thereon at the Class G Pass-Through Rate and (2) a
proportionate amount of any unpaid Interest Shortfalls allocated to the Class
G-L Interest on any prior Distribution Date; (H) to the Class H-L Interest in
respect of interest, (1) the portion of the Interest Distribution Amount
therefor that is in excess of interest thereon at the Class H Pass-Through
Rate and (2) a proportionate amount of any unpaid Interest Shortfalls
allocated to the Class H-L Interest on any prior Distribution Date; (I) to
the Class J-L Interest in respect of interest,
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(1) the portion of the Interest Distribution Amount therefor that is in
excess of interest thereon at the Class J Pass-Through Rate and (2) a
proportionate amount of any unpaid Interest Shortfalls allocated to the Class
J-L Interest on any prior Distribution Date; (J) to the Class K-L Interest in
respect of interest, (1) the portion of the Interest Distribution Amount
therefor that is in excess of interest thereon at the Class K Pass-Through
Rate and (2) a proportionate amount of any unpaid Interest Shortfalls
allocated to the Class K-L Interest on any prior Distribution Date; (K) to
the Class L-L Interest in respect of interest, (1) the portion of the
Interest Distribution Amount therefor that is in excess of interest thereon
at the Class L Pass-Through Rate and (2) a proportionate amount of any unpaid
Interest Shortfalls allocated to the Class L-L Interest on any prior
Distribution Date; (L) to the Class M-L Interest in respect of interest, (1)
the portion of the Interest Distribution Amount therefor that is in excess of
interest thereon at the Class M Pass-Through Rate and (2) a proportionate
amount of any unpaid Interest Shortfalls allocated to the Class M-L Interest
on any prior Distribution Date; (M) to the Class N-L Interest in respect of
interest, (1) the portion of the Interest Distribution Amount therefor that
is in excess of interest thereon at the Class N Pass-Through Rate and (2) a
proportionate amount of any unpaid Interest Shortfalls allocated to the Class
N-L Interest on any prior Distribution Date; and (N) to the Class O-L
Interest in respect of interest, (1) the portion of the Interest Distribution
Amount therefor that is in excess of interest thereon at the Class O
Pass-Through Rate and (2) a proportionate amount of any unpaid Interest
Shortfalls allocated to the Class O-L Interest on any prior Distribution
Date;
(iii) Third, to the Class A-1-L Interest, in reduction of the Certificate
Balance thereof, the Pooled Principal Distribution Amount for such
Distribution Date, until the Certificate Balance thereof is reduced to zero;
(iv) Fourth, to the Class A-2-L Interest, in reduction of the Certificate
Balance thereof, the Pooled Principal Distribution Amount for such
Distribution Date, less the portion thereof distributed on such Distribution
Date pursuant to any preceding clause, until the Certificate Balance thereof
is reduced to zero;
(v) Fifth, to the Class A-1-L Interest and the Class A-2-L Interest, pro
rata, for the unreimbursed amounts of Realized Losses allocated to the Class
A-1-L Interest and the Class A-2-L Interest, respectively, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(vi) Sixth, to the Class B-L Interest, in respect of interest, (A) the
portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class B Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class B-L
Interest on any prior Distribution Date;
(vii) Seventh, after the Certificate Balances of the Class A-1-L Interest
and the Class A-2-L Interest each has been reduced to zero, to the Class B-L
Interest, in reduction of the Certificate Balance thereof, the Pooled
Principal Distribution Amount for such Distribution Date less the portion
thereof distributed on such Distribution Date pursuant
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to any preceding clause, until the Certificate Balance of the Class B-L
Interest is reduced to zero;
(viii) Eighth, to the Class B-L Interest, for the unreimbursed amounts of
Realized Losses allocated to the Class B-L Interest, if any, up to an amount
equal to the aggregate of such unreimbursed Realized Losses;
(ix) Ninth, to the Class C-L Interest, in respect of interest, (A) the
portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class C Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class C-L
Interest on any prior Distribution Date;
(x) Tenth, after the Certificate Balance of the Class B-L Interest has been
reduced to zero, to the Class C-L Interest, in reduction of the Certificate
Balance thereof, the Pooled Principal Distribution Amount for such
Distribution Date less the portion thereof distributed on such Distribution
Date pursuant to any preceding clause, until the Certificate Balance of the
Class C-L Interest is reduced to zero;
(xi) Eleventh, to the Class C-L Interest, for the unreimbursed amounts of
Realized Losses allocated to the Class C-L Interest, if any, up to an amount
equal to the aggregate of such unreimbursed Realized Losses;
(xii) Twelfth, to the Class D-L Interest, in respect of interest, (A) the
portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class D Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class D-L
Interest on any prior Distribution Date;
(xiii) Thirteenth, after the Certificate Balance of the Class C-L Interest
has been reduced to zero, to the Class D-L Interest, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class D-L Interest is reduced to zero;
(xiv) Fourteenth, to the Class D-L Interest, for the unreimbursed amounts
of Realized Losses allocated to the Class D-L Interest, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(xv) Fifteenth, to the Class E-L Interest, in respect of interest, (A) the
portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class E Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class E-L
Interest on any prior Distribution Date;
(xvi) Sixteenth, after the Certificate Balance of the Class D-L Interest
has been reduced to zero, to the Class E-L Interest, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class E-L Interest is reduced to zero;
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(xvii) Seventeenth, to the Class E-L Interest, for the unreimbursed amounts
of Realized Losses allocated to the Class E-L Interest, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(xviii) Eighteenth, to the Class F-L Interest, in respect of interest, (A)
the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class F Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class F-L
Interest on any prior Distribution Date;
(xix) Nineteenth, after the Certificate Balance of the Class E-L Interest
has been reduced to zero, to the Class F-L Interest, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class F-L Interest is reduced to zero;
(xx) Twentieth, to the Class F-L Interest, for the unreimbursed amounts of
Realized Losses allocated to the Class F-L Interest, if any, up to an amount
equal to the aggregate of such unreimbursed Realized Losses;
(xxi) Twenty-first, to the Class G-L Interest, in respect of interest, (A)
the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class G Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class G-L
Interest on any prior Distribution Date;
(xxii) Twenty-second, after the Certificate Balance of the Class F-L
Interest has been reduced to zero, to the Class G-L Interest, in reduction of
the Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class G-L Interest is reduced to zero;
(xxiii) Twenty-third, to the Class G-L Interest, for the unreimbursed
amounts of Realized Losses allocated to the Class G-L Interest, if any, up to
an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxiv) Twenty-fourth, to the Class H-L Interest, in respect of interest,
(A) the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class H Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class H-L
Interest on any prior Distribution Date;
(xxv) Twenty-fifth, after the Certificate Balance of the Class G-L Interest
has been reduced to zero, to the Class H-L Interest, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class H-L Interest is reduced to zero;
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(xxvi) Twenty-sixth, to the Class H-L Interest, for the unreimbursed
amounts of Realized Losses allocated to the Class H-L Interest, if any, up to
an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxvii) Twenty-seventh, to the Class J-L Interest, in respect of interest,
(A) the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class J Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class J-L
Interest on any prior Distribution Date;
(xxviii) Twenty-eighth, after the Certificate Balance of the Class H-L
Interest has been reduced to zero, to the Class J-L Interest, in reduction of
the Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class J-L Interest is reduced to zero;
(xxix) Twenty-ninth, to the Class J-L Interest, for the unreimbursed
amounts of Realized Losses allocated to the Class J-L Interest, if any, up to
an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxx) Thirtieth, to the Class K-L Interest, in respect of interest, (A) the
portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class K Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class K-L
Interest on any prior Distribution Date;
(xxxi) Thirty-first, after the Certificate Balance of the Class J-L
Interest has been reduced to zero, to the Class K-L Interest, in reduction of
the Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class K-L Interest is reduced to zero;
(xxxii) Thirty-second, to the Class K-L Interest, for the unreimbursed
amounts of Realized Losses allocated to the Class K-L Interest, if any, up to
an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxxiii) Thirty-third, to the Class L-L Interest, in respect of interest,
(A) the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class L Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class L-L
Interest on any prior Distribution Date;
(xxxiv) Thirty-fourth, after the Certificate Balance of the Class K-L
Interest has been reduced to zero, to the Class L-L Interest, in reduction of
the Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class L-L Interest is reduced to zero;
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(xxxv) Thirty-fifth, to the Class L-L Interest, for the unreimbursed
amounts of Realized Losses allocated to the Class L-L Interest, if any, up to
an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxxvi) Thirty-sixth, to the Class M-L Interest, in respect of interest,
(A) the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class M Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class M-L
Interest on any prior Distribution Date;
(xxxvii) Thirty-seventh, after the Certificate Balance of the Class L-L
Interest has been reduced to zero, to the Class M-L Interest, in reduction of
the Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class M-L Interest is reduced to zero;
(xxxviii) Thirty-eighth, to the Class M-L Interest, for the unreimbursed
amounts of Realized Losses allocated to the Class M-L Interest, if any, up to
an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxxix) Thirty-ninth, to the Class N-L Interest, in respect of interest,
(A) the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class N Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class N-L
Interest on any prior Distribution Date;
(xl) Fortieth, after the Certificate Balance of the Class M-L Interest has
been reduced to zero, to the Class N-L Interest, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class N-L Interest is reduced to zero;
(xli) Forty-first, to the Class N-L Interest, for the unreimbursed amounts
of Realized Losses allocated to the Class N-L Interest, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(xlii) Forty-second, to the Class O-L Interest, in respect of interest, (A)
the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class O Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class O-L
Interest on any prior Distribution Date;
(xliii) Forty-three, after the Certificate Balance of the Class N-L
Interest has been reduced to zero, to the Class O-L Interest, in reduction of
the Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class O-L Interest is reduced to zero;
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(xliv) Forty-four, to the Class O-L Interest, for the unreimbursed amounts
of Realized Losses allocated to the Class O-L Interest, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses; and
(xlv) Forty-fifth, to the Class R-III Certificates, any Available Funds
remaining in the Collection Account.
(II) On each Remittance Date, the Master Servicer, pursuant to Section
4.6(b), shall remit to the Trustee, and the Trustee shall receive for deposit
into the Middle-Tier Distribution Account in respect of each Lower-Tier Regular
Interest, distributions from amounts on deposit in the Collection Account in
respect of Prepayment Premiums and Yield Maintenance Charges, if any,
distributable to its Related Certificate or the Class A-EC1 or Class A-EC2
Certificate (or (i) in the case of the Class A-1-L Interest, amounts
distributable to the Class A-1 Certificates, and (ii) in the case of the Class
A-2-L Interest, amounts distributable to the Class A-2 Certificates). Any Excess
Interest and any Default Interest shall be held by the Master Servicer in a
sub-account separate and apart from any amounts on deposit in the Collection
Account, and shall be remitted by the Master Servicer to the Trustee pursuant to
Section 4.6(b), and such amounts shall be received by the Trustee for deposit
into a segregated account for the benefit of the holders of the Class O
Certificates. Amounts received in respect of a payment of Excess Interest or of
Default Interest shall not be considered an asset of any REMIC, but shall be
considered for Federal income tax purposes as a Grantor Trust Asset, and as an
asset of the Trust Fund that is separate and distinct from the assets of each of
the REMICs.
(III) On the Distribution Date occurring in (A) January of each calendar
year that is not a leap year and (B) February of each calendar year, interest
payments constituting the Withheld Amounts that would otherwise be distributable
pursuant to Section 4.1(a)(I) above shall be deposited in the Interest Reserve
Account by the Master Servicer in accordance with Section 3.5. On the
Distribution Date in March of each calendar year the Withheld Amounts deposited
in the Interest Reserve Account pursuant to Section 5.3.2. shall be included in
the funds distributable pursuant to Section 4.1(a)(I) above.
(b) (I) On each Distribution Date, to the extent of amounts remitted to the
Middle-Tier Distribution Account pursuant to Section 4.1(a)(I), the Trustee
shall withdraw and pay to itself an amount equal to the amount of the accrued
and unpaid Trustee Fee and thereafter shall withdraw the remaining amounts on
deposit in the Middle-Tier Distribution Account and shall deposit in the
Distribution Account on behalf of the Upper-Tier REMIC and distribute to the
Holders of the Class R-II Certificates, up to the amount of Available Funds for
such Distribution Date, the following amounts:
(i) First, (A) to the Class A-1-M Interest, Class A-2-M Interest in respect
of interest and to the Class M-IO Interest pro rata in accordance with the
Interest Distribution Amounts therefor, plus, for each such Class, an amount
equal to the aggregate unpaid Interest Shortfalls previously allocated to
such Class on any prior Distribution Date, (B) to the Class B-M Interest in
respect of interest, (1) the portion of the Interest Distribution Amount
therefor that is in excess of interest thereon at the Class B Pass-Through
Rate and (2) a proportionate amount of any unpaid Interest Shortfalls
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allocated to the Class B-M Interest on any prior Distribution Date; (C) to
the Class C-M Interest in respect of interest, (1) the portion of the
Interest Distribution Amount therefor that is in excess of interest thereon
at the Class C Pass-Through Rate and (2) a proportionate amount of any unpaid
Interest Shortfalls allocated to the Class C-M Interest on any prior
Distribution Date; (D) to the Class D-M Interest in respect of interest, (1)
the portion of the Interest Distribution Amount therefor that is in excess of
interest thereon at the Class D Pass-Through Rate and (2) a proportionate
amount of any unpaid Interest Shortfalls allocated to the Class D-M Interest
on any prior Distribution Date; (E) to the Class E-M Interest in respect of
interest, (1) the portion of the Interest Distribution Amount therefor that
is in excess of interest thereon at the Class E Pass-Through Rate and (2) a
proportionate amount of any unpaid Interest Shortfalls allocated to the
Class E-M Interest on any prior Distribution Date; (F) to the Class F-M
Interest in respect of interest, (1) the portion of the Interest Distribution
Amount therefor that is in excess of interest thereon at the Class F
Pass-Through Rate and (2) a proportionate amount of any unpaid Interest
Shortfalls allocated to the Class F-M Interest on any prior Distribution
Date; and (G) to the Class G-M Interest in respect of interest, (1) the
portion of the Interest Distribution Amount therefor that is in excess of
interest thereon at the Class G Pass-Through Rate, and (2) a proportionate
amount of any unpaid Interest Shortfalls allocated to the Class G-M Interest
on any prior Distribution Date; (H) to the Class H-M Interest in respect of
interest, the portion of the Interest Distribution Amount therefor that is in
excess of interest thereon at the Class H Pass-Through Rate and
(2) a proportionate amount of any unpaid Interest Shortfalls allocated to the
Class H-M Interest on any prior Distribution Date; (I) to the Class J-M
Interest in respect of interest, (1) the portion of the Interest Distribution
Amount therefor that is in excess of interest thereon at the Class J
Pass-Through Rate and (2) a proportionate amount of any unpaid Interest
Shortfalls allocated to the Class J-M Interest on any prior Distribution
Date; (J) to the Class K-M Interest in respect of interest, (1) the portion
of the Interest Distribution Amount therefor that is in excess of interest
thereon at the Class K Pass-Through Rate and (2) a proportionate amount of
any unpaid Interest Shortfalls allocated to the Class K-M Interest on any
prior Distribution Date; (K) to the Class L-M Interest in respect of
interest, (1) the portion of the Interest Distribution Amount therefor that
is in excess of interest thereon at the Class L Pass-Through Rate and (2) a
proportionate amount of any unpaid Interest Shortfalls allocated to the Class
L-M Interest on any prior Distribution Date; (L) to the Class M-M Interest in
respect of interest, (1) the portion of the Interest Distribution Amount
therefor that is in excess of interest thereon at the Class M Pass-Through
Rate and (2) a proportionate amount of any unpaid Interest Shortfalls
allocated to the Class M-M Interest on any prior Distribution Date; (M) to
the Class N-M Interest in respect of interest, (1) the portion of the
Interest Distribution Amount therefor that is in excess of interest thereon
at the Class N Pass-Through Rate and (2) a proportionate amount of any unpaid
Interest Shortfalls allocated to the Class N-M Interest on any prior
Distribution Date; and (N) to the Class O-M Interest in respect of interest,
(1) the portion of the Interest Distribution Amount therefor that is in
excess of interest thereon at the Class O Pass-Through Rate and (2) a
proportionate amount of any unpaid Interest Shortfalls allocated to the Class
O-M Interest on any prior Distribution Date;
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(ii) Second, to the Class A-1-M Interest, in reduction of the Certificate
Balance thereof, the Pooled Principal Distribution Amount for such
Distribution Date, until the Certificate Balance thereof is reduced to zero;
(iii) Third, to the Class A-2-M Interest, in reduction of the Certificate
Balance thereof, the Pooled Principal Distribution Amount for such
Distribution Date, less the portion thereof distributed on such Distribution
Date pursuant to any preceding clause, until the Certificate Balance thereof
is reduced to zero;
(iv) Fourth, to the Class A-1-M Interest and the Class A-2-M Interest, pro
rata, for the unreimbursed amounts of Realized Losses allocated to the Class
A-1-M Interest and the Class A-2-M Interest, respectively, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(v) Fifth, to the Class B-M Interest, in respect of interest, (A) the
portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class B Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class B-M
Interest on any prior Distribution Date;
(vi) Sixth, after the Certificate Balances of the Class A-1-M Interest and
the Class A-2-M Interest each has been reduced to zero, to the Class B-M
Interest, in reduction of the Certificate Balance thereof, the Pooled
Principal Distribution Amount for such Distribution Date less the portion
thereof distributed on such Distribution Date pursuant to any preceding
clause, until the Certificate Balance of the Class B-M Interest is reduced to
zero;
(vii) Seventh, to the Class B-M Interest, for the unreimbursed amounts of
Realized Losses allocated to the Class B-M Interest, if any, up to an amount
equal to the aggregate of such unreimbursed Realized Losses;
(viii) Eighth, to the Class C-M Interest, in respect of interest, (A) the
portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class C Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class C-M
Interest on any prior Distribution Date;
(ix) Ninth, after the Certificate Balance of the Class B-M Interest has
been reduced to zero, to the Class C-M Interest, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class C-M Interest is reduced to zero;
(x) Tenth, to the Class C-M Interest, for the unreimbursed amounts of
Realized Losses allocated to the Class C-M Interest, if any, up to an amount
equal to the aggregate of such unreimbursed Realized Losses;
(xi) Eleventh, to the Class D-M Interest, in respect of interest, (A) the
portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class D
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Pass-Through Rate and (B) a proportionate amount of the aggregate unpaid
Interest Shortfalls allocated to the Class D-M Interest on any prior
Distribution Date;
(xii) Twelfth, after the Certificate Balance of the Class C-M Interest has
been reduced to zero, to the Class D-M Interest, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class D-M Interest is reduced to zero;
(xiii) Thirteenth, to the Class D-M Interest, for the unreimbursed amounts
of Realized Losses allocated to the Class D-M Interest, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(xiv) Fourteenth, to the Class E-M Interest, in respect of interest, (A)
the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class E Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class E-M
Interest on any prior Distribution Date;
(xv) Fifteenth, after the Certificate Balance of the Class D-M Interest has
been reduced to zero, to the Class E-M Interest, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class E-M Interest is reduced to zero;
(xvi) Sixteenth, to the Class E-M Interest, for the unreimbursed amounts of
Realized Losses allocated to the Class E-M Interest, if any, up to an amount
equal to the aggregate of such unreimbursed Realized Losses;
(xvii) Seventeenth, to the Class F-M Interest, in respect of interest, (A)
the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class F Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class F-M
Interest on any prior Distribution Date;
(xviii) Eighteenth, after the Certificate Balance of the Class E-M Interest
has been reduced to zero, to the Class F-M Interest, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class F-M Interest is reduced to zero;
(xix) Nineteenth, to the Class F-M Interest, for the unreimbursed amounts
of Realized Losses allocated to the Class F-M Interest, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(xx) Twentieth, to the Class G-M Interest, in respect of interest, (A) the
portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class G Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class G-M
Interest on any prior Distribution Date;
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(xxi) Twenty-first, after the Certificate Balance of the Class F-M Interest
has been reduced to zero, to the Class G-M Interest, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class G-M Interest is reduced to zero;
(xxii) Twenty-second, to the Class G-M Interest, for the unreimbursed
amounts of Realized Losses allocated to the Class G-M Interest, if any, up to
an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxiii) Twenty-third, to the Class H-M Interest, in respect of interest,
(A) the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class H Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class H-M
Interest on any prior Distribution Date;
(xxiv) Twenty-fourth, after the Certificate Balance of the Class G-M
Interest has been reduced to zero, to the Class H-M Interest, in reduction of
the Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class H-M Interest is reduced to zero;
(xxv) Twenty-fifth, to the Class H-M Interest, for the unreimbursed amounts
of Realized Losses allocated to the Class H-M Interest, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(xxvi) Twenty-sixth, to the Class J-M Interest, in respect of interest, (A)
the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class J Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class J-M
Interest on any prior Distribution Date;
(xxvii) Twenty-seventh, after the Certificate Balance of the Class H-M
Interest has been reduced to zero, to the Class J-M Interest, in reduction of
the Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class J-M Interest is reduced to zero;
(xxviii) Twenty-eighth, to the Class J-M Interest, for the unreimbursed
amounts of Realized Losses allocated to the Class J-M Interest, if any, up to
an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxix) Twenty-ninth, to the Class K-M Interest, in respect of interest, (A)
the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class K Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class K-M
Interest on any prior Distribution Date;
(xxx) Thirtieth, after the Certificate Balance of the Class J-M Interest
has been reduced to zero, to the Class K-M Interest, in reduction of the
Certificate Balance thereof,
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the Pooled Principal Distribution Amount for such Distribution Date less the
portion thereof distributed on such Distribution Date pursuant to any
preceding clause, until the Certificate Balance of the Class K-M Interest is
reduced to zero;
(xxxi) Thirty-first, to the Class K-M Interest, for the unreimbursed
amounts of Realized Losses allocated to the Class K-M Interest, if any, up to
an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxxii) Thirty-second, to the Class L-M Interest, in respect of interest,
(A) the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class L Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class L-M
Interest on any prior Distribution Date;
(xxxiii) Thirty-third, after the Certificate Balance of the Class K-M
Interest has been reduced to zero, to the Class L-M Interest, in reduction of
the Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class L-M Interest is reduced to zero;
(xxxiv) Thirty-fourth, to the Class L-M Interest, for the unreimbursed
amounts of Realized Losses allocated to the Class L-M Interest, if any, up to
an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxxv) Thirty-fifth, to the Class M-M Interest, in respect of interest, (A)
the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class M Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class M-M
Interest on any prior Distribution Date;
(xxxvi) Thirty-sixth, after the Certificate Balance of the Class L-M
Interest has been reduced to zero, to the Class M-M Interest, in reduction of
the Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class M-M Interest is reduced to zero;
(xxxvii) Thirty-seventh, to the Class M-M Interest, for the unreimbursed
amounts of Realized Losses allocated to the Class M-M Interest, if any, up to
an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxxviii) Thirty-eighth, to the Class N-M Interest, in respect of interest,
(A) the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class N Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class N-M
Interest on any prior Distribution Date;
(xxxix) Thirty-ninth, after the Certificate Balance of the Class M-M
Interest has been reduced to zero, to the Class N-M Interest, in reduction of
the Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the
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portion thereof distributed on such Distribution Date pursuant to any
preceding clause, until the Certificate Balance of the Class N-M Interest is
reduced to zero;
(xl) Fortieth, to the Class N-M Interest, for the unreimbursed amounts of
Realized Losses allocated to the Class N-M Interest, if any, up to an amount
equal to the aggregate of such unreimbursed Realized Losses;
(xli) Forty-first, to the Class O-M Interest, in respect of interest, (A)
the portion of the Interest Distribution Amount therefor that is equal to
interest thereon at the Class O Pass-Through Rate and (B) a proportionate
amount of the aggregate unpaid Interest Shortfalls allocated to the Class O-M
Interest on any prior Distribution Date;
(xlii) Forty-second, after the Certificate Balance of the Class N-M
Interest has been reduced to zero, to the Class O-M Interest, in reduction of
the Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance of the Class O-M Interest is reduced to zero;
(xliii) Forty-third, to the Class O-M Interest, for the unreimbursed
amounts of Realized Losses allocated to the Class O-M Interest, if any, up to
an amount equal to the aggregate of such unreimbursed Realized Losses; and
(xliv) Forty-fourth, to the Class R-II Certificates, any Available Funds
remaining in the Collection Account.
(II) On each Remittance Date, the Master Servicer, pursuant to Section
4.6(b), shall remit to the Trustee, and the Trustee shall receive for deposit
into the Distribution Account in respect of each Middle-Tier Regular Interest,
distributions from amounts on deposit in the Middle-Tier Distribution Account in
respect of Prepayment Premiums and Yield Maintenance Charges, if any,
distributable to its Related Certificate or the Class A-EC1 or Class A-EC2
Certificates (or (i) in the case of the Class A-1-M Interest, amounts
distributable to the Class A-1 Certificates, and (ii) in the case of the Class
A-2-M Interest, amounts distributable to the Class A-2 Certificates, and (iii)
in the case of the Class M-IO Interest, amounts distributable to the Class A-EC1
Certificates).
(c) (I) On each Distribution Date, to the extent of amounts remitted to the
Distribution Account pursuant to Section 4.1(b)(I), the Trustee shall distribute
to the Holders of each Class of Certificates (other than the Class R-II and
Class R-III Certificates) from amounts on deposit in the Distribution Account,
up to the remaining amount of the Available Funds for such Distribution Date, in
the amounts and in the order of priority set forth below:
(i) First, concurrently, (a) to the Class A-1 Certificates, the Class A-2
Certificates, the Class A-EC1 Certificates and the Class A-EC2 Certificates,
pro rata in accordance with the Class Interest Distribution Amount of each,
up to an amount equal to the Class Interest Distribution Amount of each such
Class for such Distribution Date plus, for each such Class, an amount equal
to the aggregate unpaid Class Interest
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Shortfalls previously allocated to such Class on any previous Distribution
Dates and not paid;
(ii) Second, to the Class A-1 Certificates, in reduction of the Certificate
Balance thereof, the Pooled Principal Distribution Amount for such
Distribution Date, until the Certificate Balance thereof is reduced to zero;
(iii) Third, to the Class A-1 Certificates, for the unreimbursed amounts of
Realized Losses allocated to the Class A-1 Certificates, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(iv) Fourth, after the Certificate Balance of the Class A-1 Certificates
has been reduced to zero, to the Class A-2 Certificates, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date, less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance thereof is reduced to zero;
(v) Fifth, to the Class A-2 Certificates, for the unreimbursed amounts of
Realized Losses allocated to the Class A-2 Certificates, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(vi) Sixth, to the Class B Certificates, up to an amount equal to the Class
Interest Distribution Amount of such Class for such Distribution Date plus an
amount equal to the aggregate unpaid Class Interest Shortfalls previously
allocated to such Class on any previous Distribution Dates and not paid;
(vii) Seventh, after the Certificate Balances of the Class A-1 Certificates
and Class A-2 Certificates each have been reduced to zero, to the Class B
Certificates, in reduction of the Certificate Balance thereof, the Pooled
Principal Distribution Amount for such Distribution Date less the portion
thereof distributed on such Distribution Date pursuant to any preceding
clause, until the Certificate Balance thereof is reduced to zero;
(viii) Eighth, to the Class B Certificates, for the unreimbursed amounts of
Realized Losses allocated to the Class B Certificates, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(ix) Ninth, to the Class C Certificates, up to an amount equal to the Class
Interest Distribution Amount of such Class for such Distribution Date plus an
amount equal to the aggregate unpaid Class Interest Shortfalls previously
allocated to such Class on any previous Distribution Dates and not paid;
(x) Tenth, after the Certificate Balance of the Class B Certificates has
been reduced to zero, to the Class C Certificates, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance thereof is reduced to zero;
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(xi) Eleventh, to the Class C Certificates, for the unreimbursed amounts of
Realized Losses allocated to the Class C Certificates, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(xii) Twelfth, to the Class D Certificates, up to an amount equal to the
Class Interest Distribution Amount of such Class for such Distribution Date
plus an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class on any previous Distribution Dates and not
paid;
(xiii) Thirteenth, after the Certificate Balance of the Class C
Certificates has been reduced to zero, to the Class D Certificates, in
reduction of the Certificate Balance thereof, the Pooled Principal
Distribution Amount for such Distribution Date less the portion thereof
distributed on such Distribution Date pursuant to any preceding clause, until
the Certificate Balance thereof is reduced to zero;
(xiv) Fourteenth, to the Class D Certificates, for the unreimbursed amounts
of Realized Losses allocated to the Class D Certificates, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(xv) Fifteenth, to the Class E Certificates, up to an amount equal to the
Class Interest Distribution Amount of such Class for such Distribution Date
plus an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class on any previous Distribution Dates and not
paid;
(xvi) Sixteenth, after the Certificate Balance of the Class D Certificates
has been reduced to zero, to the Class E Certificates, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance thereof is reduced to zero;
(xvii) Seventeenth, to the Class E Certificates, for the unreimbursed
amounts of Realized Losses allocated to the Class E Certificates, if any, up
to an amount equal to the aggregate of such unreimbursed Realized Losses;
(xviii) Eighteenth, to the Class F Certificates, up to an amount equal to
the Class Interest Distribution Amount of such Class for such Distribution
Date plus an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class on any previous Distribution Dates and not
paid;
(xix) Nineteenth, after the Certificate Balance of the Class E Certificates
has been reduced to zero, to the Class F Certificates, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance thereof is reduced to zero;
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(xx) Twentieth, to the Class F Certificates, for the unreimbursed amounts
of Realized Losses allocated to the Class F Certificates, if any, up to an
amount equal to the aggregate of such unreimbursed Realized Losses;
(xxi) Twenty-first, to the Class G Certificates, up to an amount equal to
the Class Interest Distribution Amount of such Class for such Distribution
Date plus an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class on any previous Distribution Dates and not
paid;
(xxii) Twenty-second, after the Certificate Balance of the Class F
Certificates has been reduced to zero, to the Class G Certificates, in
reduction of the Certificate Balance thereof, the Pooled Principal
Distribution Amount for such Distribution Date less the portion thereof
distributed on such Distribution Date pursuant to any preceding clause, until
the Certificate Balance thereof is reduced to zero;
(xxiii) Twenty-third, to the Class G Certificates, for the unreimbursed
amounts of Realized Losses allocated to the Class G Certificates, if any, up
to an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxiv) Twenty-fourth, to the Class H Certificates, up to an amount equal to
the Class Interest Distribution Amount of such Class for such Distribution
Date plus an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class on any previous Distribution Dates and not
paid;
(xxv) Twenty-fifth, after the Certificate Balance of the Class G
Certificates has been reduced to zero, to the Class H Certificates, in
reduction of the Certificate Balance thereof, the Pooled Principal
Distribution Amount for such Distribution Date less the portion thereof
distributed on such Distribution Date pursuant to any preceding clause, until
the Certificate Balance thereof is reduced to zero;
(xxvi) Twenty-sixth, to the Class H Certificates, for the unreimbursed
amounts of Realized Losses allocated to the Class H Certificates, if any, up
to an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxvii) Twenty-seventh, to the Class J Certificates, up to an amount equal
to the Class Interest Distribution Amount of such Class for such Distribution
Date plus an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class on any previous Distribution Dates and not
paid;
(xxviii) Twenty-eighth, after the Certificate Balance of the Class H
Certificates has been reduced to zero, to the Class J Certificates, in
reduction of the Certificate Balance thereof, the Pooled Principal
Distribution Amount for such Distribution Date less the portion thereof
distributed on such Distribution Date pursuant to any preceding clause, until
the Certificate Balance thereof is reduced to zero;
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(xxix) Twenty-ninth, to the Class J Certificates, for the unreimbursed
amounts of Realized Losses allocated to the Class J Certificates, if any, up
to an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxx) Thirtieth, to the Class K Certificates, up to an amount equal to the
Class Interest Distribution Amount of such Class for such Distribution Date
plus an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class on any previous Distribution Dates and not
paid;
(xxxi) Thirty-first, after the Certificate Balance of the Class J
Certificates has been reduced to zero, to the Class K Certificates, in
reduction of the Certificate Balance thereof, the Pooled Principal
Distribution Amount for such Distribution Date less the portion thereof
distributed on such Distribution Date pursuant to any preceding clause, until
the Certificate Balance thereof is reduced to zero;
(xxxii) Thirty-second, to the Class K Certificates, for the unreimbursed
amounts of Realized Losses allocated to the Class K Certificates, if any, up
to an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxxiii) Thirty-third, to the Class L Certificates, up to an amount equal
to the Class Interest Distribution Amount of such Class for such Distribution
Date plus an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class on any previous Distribution Dates and not
paid;
(xxxiv) Thirty-fourth, after the Certificate Balance of the Class K
Certificates has been reduced to zero, to the Class L Certificates, in
reduction of the Certificate Balance thereof, the Pooled Principal
Distribution Amount for such Distribution Date less the portion thereof
distributed on such Distribution Date pursuant to any preceding clause, until
the Certificate Balance thereof is reduced to zero;
(xxxv) Thirty-fifth, to the Class L Certificates, for the unreimbursed
amounts of Realized Losses allocated to the Class L Certificates, if any, up
to an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxxvi) Thirty-sixth, to the Class M Certificates, up to an amount equal to
the Class Interest Distribution Amount of such Class for such Distribution
Date plus an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class on any previous Distribution Dates and not
paid;
(xxxvii) Thirty-seventh, after the Certificate Balance of the Class L
Certificates has been reduced to zero, to the Class M Certificates, in
reduction of the Certificate Balance thereof, the Pooled Principal
Distribution Amount for such Distribution Date less the portion thereof
distributed on such Distribution Date pursuant to any preceding clause, until
the Certificate Balance thereof is reduced to zero;
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(xxxviii) Thirty-eighth, to the Class M Certificates, for the unreimbursed
amounts of Realized Losses allocated to the Class M Certificates, if any, up
to an amount equal to the aggregate of such unreimbursed Realized Losses;
(xxxix) Thirty-ninth, to the Class N Certificates, up to an amount equal to
the Class Interest Distribution Amount of such Class for such Distribution
Date plus an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class on any previous Distribution Dates and not
paid;
(xl) Fortieth, after the Certificate Balance of the Class M Certificates
has been reduced to zero, to the Class N Certificates, in reduction of the
Certificate Balance thereof, the Pooled Principal Distribution Amount for
such Distribution Date less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the Certificate
Balance thereof is reduced to zero;
(xli) Forty-first, to the Class N Certificates, for the unreimbursed
amounts of Realized Losses allocated to the Class N Certificates, if any, up
to an amount equal to the aggregate of such unreimbursed Realized Losses;
(xlii) Forty-second, to the Class O Certificates, up to an amount equal to
the Class Interest Distribution Amount of such Class for such Distribution
Date plus an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class on any previous Distribution Dates and not
paid;
(xliii) Forty-third, after the Certificate Balance of the Class N
Certificates has been reduced to zero, to the Class O Certificates, in
reduction of the Certificate Balance thereof, the Pooled Principal
Distribution Amount for such Distribution Date less the portion thereof
distributed on such Distribution Date pursuant to any preceding clause, until
the Certificate Balance thereof is reduced to zero;
(xliv) Forty-fourth, to the Class O Certificates, for the unreimbursed
amounts of Realized Losses allocated to the Class O Certificates, if any, up
to an amount equal to the aggregate of such unreimbursed Realized Losses; and
(xlv) Forty-fifth, to the Class R-I Certificates, any amounts remaining in
the Distribution Account.
All references to pro rata in the preceding clauses shall mean pro rata based on
the amount distributable pursuant to such clause.
(II) Notwithstanding anything to the contrary in this Agreement, on each
Distribution Date on and after the Senior Principal Distribution Cross-Over
Date, and on the final Distribution Date in connection with the termination of
the Trust Fund, all distributions of principal to the Class A-1 and A-2
Certificates (including for any unreimbursed Realized Losses) will be paid to
holders of such Classes of Certificates, pro rata based on their outstanding
Certificate Balances immediately prior to such Distribution Date, until the
Certificate Balance of each such Class is reduced to zero.
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(III) On each Distribution Date following the distribution from the
Middle-Tier Distribution Account to the Distribution Account pursuant to Section
4.1(b)(I), the Paying Agent shall distribute all Excess Interest received in
respect of the Mortgage Loans in the related Collection Period to the Holders of
the Class O Certificates, pro rata, in respect of their beneficial ownership
interests in the Grantor Trust Assets evidenced by the Class O Certificates,
including on any Distribution Date on or after which the Certificate Balance of
the Class O Certificates has been reduced to zero. Such amounts shall be
distributed in respect of the Class O Grantor Trust Interest, and shall not be
considered an asset of any of the Trust REMICs.
(IV) On each Distribution Date, following the distribution from the
Middle-Tier Distribution Account to the Distribution Account pursuant to Section
4.1(b)(I), the Paying Agent shall distribute all Default Interest received with
respect to each Mortgage Loan to the Holders of the Class O Certificates. Such
amounts shall be considered Grantor Trust Assets of the Holders of the Class O
Certificates, shall be distributed to such Holders in respect of the Class O
Grantor Trust Interest, and shall not be considered an asset of any of the Trust
REMICs.
(d) On each Distribution Date, following the distribution from the
Collection Account to the Distribution Account pursuant to Section 4.1(b)(I),
the Paying Agent shall make distributions of Prepayment Premiums and Yield
Maintenance Charges with respect to any Principal Prepayments received in the
related Collection Period from amounts deposited in the Distribution Account
pursuant to Section 4.6(b)(i) as follows:
(I) So long as the Certificate Balance of any of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E or Class F Certificates is greater than zero,
25% of the Prepayment Premiums collected during any Collection Period will be
allocated for distribution to the Holders of Classes entitled to receive
principal distributions on the related Distribution Date on a pro rata basis,
based on the amount of principal distributed to each such Class as a percentage
of the amount of principal distributed to all such classes, and the remaining
Prepayment Premiums will be allocated 85% to the Class A-EC1 Certificates and
15% to the Class A-EC2 Certificates. When the Certificate Balances of all of the
Class A-1, Class A-2, Class B, Class C, Class D, Class E or Class F Certificates
have been reduced to zero, 100% of the Prepayment Premiums collected during any
Collection Period will be allocated 85% for distribution to Holders of the Class
A-EC1 Certificates and 15% for distribution to Holders of the Class A-EC2
Certificates.
(II) So long as the Certificate Balance of any of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E and Class F Certificates is greater than
zero, Yield Maintenance Charges collected during any Collection Period will be
allocated as between the Class A-EC Certificates and such other Classes based on
the Base Interest Fraction. On the related Distribution Date, the product of the
Base Interest Fraction and the aggregate amount of such Yield Maintenance
Charges will be allocated for distribution to Holders of any such Classes
entitled to receive principal distributions based on the product of (a) the
amount of principal distributed to each such Class as a percentage of the
principal distributed to all such Classes multiplied by (b) the Base Interest
Fraction and multiplied by (c) the amount of Yield Maintenance Charges allocated
to all such Classes will be distributed to each such Class. On each such
Distribution Date, the remainder of such Yield Maintenance Charges will be
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distributed 85% to the Class A-EC1 Certificates and 15% to the Class A-EC2
Certificates. When the Certificate Balances of all of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E and Class F Certificates have been reduced to
zero, 100% of the Yield Maintenance Charges collected during any Collection
Period will be allocated 85% for distribution to Holders of the Class A-EC1
Certificates and 15% for distribution to Holders of the Class A-EC1
Certificates.
Notwithstanding the foregoing, the Holders of the Class R-I Certificates
shall receive the amount of any Prepayment Premiums and Yield Maintenance
Charges received in any Collection Period subsequent to the first Collection
Period for which the A-EC1 Notional Balance is reduced to zero, and Prepayment
Premiums and Yield Maintenance Charges shall be distributed on any Distribution
Date only to the extent they are received in respect of the Mortgage Loans in
the related Collection Period.
(e) Realized Losses on Mortgage Loans included in the Trust Fund will be
allocated to the outstanding Class of Certificates with the latest alphabetical
class designation (other than the Residual Certificates and Class A-EC1 and
Class A-EC2 Certificates) in reverse sequential order, until the Certificate
Balance thereof is reduced to zero. However, on and after the Senior Principal
Distribution Cross-Over Date, Realized Losses will be allocated among the Class
A-1 and Class A-2 Certificates on a pro rata basis. Realized Losses allocated to
any Class of Certificates other than the Residual Certificates will reduce the
Class A-EC1 Notional Balance and may reduce the Class A-EC2 Notional Balance.
Any amounts recovered in respect of any amounts previously written off as
Realized Losses will be distributed to the Classes of Certificates in reverse
order of allocation of Realized Losses thereto.
(f) All amounts distributable to a Class of Certificates pursuant to this
Section 4.1 on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in each such Class based on their respective Percentage
Interests. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance or Class A-EC1
Notional Balance or Class A-EC2 Notional Balance in excess of $50,000 and shall
have provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date by wire transfer of immediately
available funds to the account of such Certificateholder at a bank or other
entity located in the United States and having appropriate facilities therefor.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate Registrar
acting as such agent) maintained in the Borough of Manhattan that is specified
in the notice to Certificateholders of such final distribution.
(g) Except as otherwise provided in Section 9.1 with respect to an
Anticipated Termination Date, the Trustee shall, no later than the twentieth
(20th) day of the month in the month preceding the Distribution Date on which
the final distribution with respect to any Class of Certificates is expected to
be made or such later day as the Trustee becomes aware that the final
distribution with respect to any Class of Certificates is expected to be made on
the
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succeeding Distribution Date, mail to each Holder of such Class of Certificates,
on such day a notice to the effect that:
(i) the Trustee reasonably expects, based upon information previously
provided to it, that the final distribution with respect to such Class of
Certificates will be made on such Distribution Date, but only upon
presentation and surrender of such Certificates at the office of the Trustee
therein specified; and
(ii) if such final distribution is made on such Distribution Date, no
interest shall accrue on such Certificates from and after such Distribution
Date; provided, however, that the Class R-I, Class R-II and Class R-III
Certificates shall remain outstanding until there is no other Class of
Certificates or Lower-Tier Regular Interests outstanding.
Any funds not distributed to any Holder or Holders of Certificates of such
Class on such Distribution Date because of the failure of such Holder or Holders
to tender their Certificates shall, on such Distribution Date, be set aside and
held in trust for the benefit of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 4.1(g) shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive from such funds held the final distribution
with respect thereto. If, within one year after the second notice, any of such
Certificates shall not have been surrendered for cancellation, the Trustee may,
directly or through an agent, take appropriate steps to contact the remaining
non-tendering Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If, within two years after
the second notice, any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee hereunder and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class R-III Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust hereunder or by the Trustee as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with this Section 4.1(g). Any such amounts
transferred to the Trustee shall not be invested.
(h) Notwithstanding any provision in this Agreement to the contrary, the
aggregate amount distributable to each Class pursuant to this Section 4.1 shall
be reduced by the aggregate amount paid to any Person pursuant to Section 6.3 or
Section 8.5(d), such reduction to be allocated among such Classes in inverse
alphabetical order (and pro rata among the Class A-1, Class A-2, Class A-EC1 and
Class A-EC2 Certificates), based upon the respective amounts so distributable
without taking into account this Section 4.1(h). Such reduction of amounts
otherwise distributable to a Class shall be allocated first in respect of
interest and second in respect of principal. For purposes of determining
Interest Shortfalls and Certificate Balances, the
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amount of any such reduction so allocated to a Class shall be deemed to have
been distributed to such Class.
SECTION 4.2. STATEMENTS TO RATING AGENCIES AND CERTIFICATEHOLDERS;
AVAILABLE INFORMATION; INFORMATION FURNISHED TO FINANCIAL
MARKET PUBLISHER.
(a) On each Distribution Date, the Trustee shall prepare in CSSA format and
forward by mail to each Rating Agency and each Holder of a Certificate, with
copies to the Depositor, Paying Agent, the Underwriters and Master Servicer, and
make available on the World Wide Web, a statement as to such distribution
setting forth for each Class, as applicable:
(i) The Pooled Principal Distribution Amount and the amount allocable to
principal included in Available Funds;
(ii) The Class Interest Distribution Amount distributable to such Class and
the amount of Available Funds allocable thereto, together with any Class
Interest Shortfall allocable to such Class;
(iii) The amount of any P&I Advances by the Master Servicer or the Trustee
included in the amounts distributed to such Certificateholder;
(iv) The Certificate Balance of each Class of Certificates after giving
effect to the distribution of amounts in respect of the Pooled Principal
Distribution Amount on such Distribution Date;
(v) Realized Losses and their allocation to the Certificate Balance of any
Class of Certificates;
(vi) The Scheduled Principal Balance of the Mortgage Loans as of the Due
Date preceding such Distribution Date;
(vii) The number and aggregate principal balance of Mortgage Loans (A)
delinquent one month, (B) delinquent two months, (C) delinquent three or more
months, (D) as to which foreclosure proceedings have been commenced and (E)
that otherwise constitute Specially Serviced Mortgage Loans, and, with
respect to each Specially Serviced Mortgage Loan, the amount of Property
Advances made during the related Collection Period, the amount of the P&I
Advance made on such Distribution Date, the aggregate amount of Property
Advances theretofore made that remain unreimbursed and the aggregate amount
of P&I Advances theretofore made that remain unreimbursed;
(viii) With respect to any Mortgage Loan that became an REO Mortgage Loan
during the preceding calendar month, the principal balance of such Mortgage
Loan as of the date it became an REO Mortgage Loan;
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(ix) As of the Due Date preceding such Distribution Date, as to any REO
Property sold during the related Collection Period, the date on which the
Special Servicer made a Final Recovery Determination and the amount of the
proceeds of such sale deposited into the Collection Account, and the
aggregate amount of REO Proceeds and Net REO Proceeds (in each case other
than Liquidation Proceeds) and other revenues collected by the Special
Servicer with respect to each REO Property during the related Collection
Period and credited to the Collection Account, in each case identifying such
REO Property by name;
(x) The outstanding principal balance of each REO Mortgage Loan as of the
close of business on the immediately preceding Due Date and the appraised
value of the related REO Property in the most recent Updated Appraisal
obtained;
(xi) The amount of the Master Servicing Fee paid to the Master Servicer
with respect to such Distribution Date, and the amount of the additional
servicing compensation described in Section 3.12(a) that was paid to the
Master Servicer with respect to such Distribution Date;
(xii) The amount of any Special Servicing Fee, Disposition Fee or Workout
Fee paid to the Special Servicer with respect to such Distribution Date, and
the amount of the additional servicing compensation described in Section
3.12(b) that was paid to the Master Servicer with respect to such
Distribution Date;
(xiii) The amount of any Appraisal Reduction allocated in the related
Collection Period on a Mortgage Loan-by-Mortgage Loan basis and the total
amount of Appraisal Reductions made through such Distribution Date; and
(xiv) (A) The amount of Yield Maintenance Charges or Prepayment Premiums
collected and any Excess Interest, if any, received during the related
Collection Period, and (B) the amount of Default Interest received during the
related Collection Period.
In the case of information furnished pursuant to subclauses (i), (ii),
(iii) and (xiv)(A) above, the amounts shall be expressed as a dollar amount in
the aggregate for all Certificates of each applicable Class and for each Class
of Certificates for a denomination of $1,000 initial Certificate Balance or
Notional Balance.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Certificate (except for a Class R-I, Class R-II or Class R-III
Certificate) and to each Rating Agency a statement containing the information
set forth in subclauses (i) and (ii) above, aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that it provided substantially comparable information pursuant to any
requirements of the Code as from time to time in force.
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On each Distribution Date, the Trustee shall forward to each Holder of a
Class R-I, Class R-II or Class R-III Certificate a copy of the reports forwarded
to the other Certificateholders on such Distribution Date and a statement
setting forth the amounts, if any, actually distributed with respect to the
Class R-I, Class R-II or Class R-III Certificates on such Distribution Date.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Class R-I, Class R-II or Class R-III Certificate a statement
containing the information provided pursuant to the previous paragraph
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that it provided substantially
comparable information pursuant to any requirements of the Code as from time to
time in force.
In addition, the Trustee shall forward to each Certificateholder any
additional information, if any, regarding the Mortgage Loans that the Master
Servicer or Special Servicer delivers to the Trustee for distribution to the
Certificateholders pursuant to this Agreement.
In addition to the reports required to be delivered pursuant to this
Section 4.2(a), the Trustee shall make available upon request to each proposed
transferee of a Privately Placed Certificate such additional information, if
any, in its possession as may be required to permit the proposed transfer to be
effected pursuant to Rule 144A.
(b) On or within two Business Days following each Distribution Date, the
Trustee shall prepare and furnish to the Financial Market Publisher and the
Placement Agents, using the format and media mutually agreed upon by the
Trustee, the Financial Market Publisher and the Placement Agents, the following
information regarding each Mortgage Loan and any other information reasonably
requested by the Placement Agents and available to the Trustee:
(i) an identifying loan number;
(ii) the Mortgage Rate; and
(iii) the principal balance as of such Distribution Date.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by Section 4.2(a) and 4.2(b) to the extent it receives
the necessary underlying information from the Master Servicer and shall not be
liable for any failure to deliver any thereof on the prescribed Distribution
Dates, to the extent such failure is caused by the Master Servicer's failure to
deliver such underlying information in a timely manner. Nothing herein shall
obligate the Trustee, the Master Servicer or Special Servicer to violate (in the
reasonable judgment of the Master Servicer, the Special Servicer or the Trustee,
as appropriate) any applicable law or provision of any Mortgage Loan Document
prohibiting disclosure of information with respect to any Borrower and the
failure of the Trustee, the Master Servicer or Special Servicer to disseminate
information for such reason shall not be a breach hereof.
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SECTION 4.3. COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
Notwithstanding any other provision of this Agreement, the Paying Agent
shall comply with all federal withholding requirements with respect to payments
to Certificateholders of interest or original issue discount that the Paying
Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Certificateholder that is a non-U.S.
Person that has furnished or caused to be furnished (i) an effective Form W-8 or
Form W-9 or an acceptable substitute form or a successor form and who has
informed the Trustee in writing that it is not a "10-percent shareholder" within
the meaning of Code Section 871(h)(3)(B) or a "controlled foreign corporation"
described in Code Section 881(c)(3)(C) with respect to the Trust Fund or the
Depositor, or (ii) an effective Form 4224 or an acceptable substitute form or a
successor form. In the event the Paying Agent or its agent withholds any amount
from interest or original issue discount payments or advances thereof to any
Certificateholder pursuant to federal withholding requirements, the Paying Agent
shall indicate the amount withheld to such Certificateholder. Any amount so
withheld shall be treated as having been distributed to such Certificateholder
for all purposes of this Agreement.
SECTION 4.4. REMIC COMPLIANCE.
(a) The parties intend that each of the Upper-Tier REMIC, the Middle-Tier
REMIC and the Lower-Tier REMIC shall constitute, and that the affairs of each of
the Upper-Tier REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC shall be
conducted so as to qualify it as, a "real estate mortgage investment conduit" as
defined in, and in accordance with, the REMIC Provisions, and the provisions
hereof shall be interpreted consistently with this intention. In furtherance of
such intention, the Trustee shall, to the extent permitted by applicable law,
act as agent, and is hereby appointed to act as agent, of each of the Upper-Tier
REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC and shall on behalf of
each of the Upper-Tier REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC:
(i) prepare, sign and file, or cause to be prepared and filed, all required Tax
Returns for each of the Upper-Tier REMIC, the Middle-Tier REMIC and the
Lower-Tier REMIC, using a calendar year as the taxable year for each of the
Upper-Tier REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC, when and as
required by the REMIC Provisions and other applicable federal, state or local
income tax laws; (ii) make an election, on behalf of each of the Upper-Tier
REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC, to be treated as a REMIC
on Form 1066 for its first taxable year, in accordance with the REMIC
Provisions; (iii) prepare and forward, or cause to be prepared and forwarded, to
the Certificateholders and the Internal Revenue Service and applicable state and
local tax authorities all information reports as and when required to be
provided to them in accordance with the REMIC Provisions; (iv) if the filing or
distribution of any documents of an administrative nature not addressed in
clauses (i) through (iii) of this Section 4.4 is then required by the REMIC
Provisions in order to maintain the status of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC as a REMIC or is otherwise required by
the Code, prepare, sign and file or distribute, or cause to be prepared and
signed and filed or distributed, such documents with or to such Persons when and
as required by the REMIC Provisions or the Code or comparable provisions of
state and local law; (v) within 30
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days of the Closing Date, furnish or cause to be furnished to the Internal
Revenue Service, on Form 8811 or as otherwise may be required by the Code, the
name, title and address of the Person that the holders of the Certificates may
contact for tax information relating thereto (and the Trustee shall act as the
representative of each of the Upper-Tier REMIC, the Middle-Tier REMIC and the
Lower-Tier REMIC for this purpose), together with such additional information as
may be required by such Form, and shall update such information at the time or
times and in the manner required by the Code (and the Depositor agrees within 10
Business Days of the Closing Date, to provide any information reasonably
requested by the Trustee and necessary to make such filing); and (vi) maintain
such records relating to each of the Upper-Tier REMIC, the Middle-Tier REMIC and
the Lower-Tier REMIC as may be necessary to prepare the foregoing returns,
schedules, statements or information, such records, for federal income tax
purposes, to be maintained on a calendar year and on an accrual basis.
The Holder of the largest Percentage Interest in the Class R-I, Class R-II
or Class R-III Certificates shall be the tax matters person of the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC, respectively, pursuant to
Treasury Regulations Section 1.860F-4(d). If more than one Holder should hold an
equal Percentage Interest in the Class R-I, Class R-II or Class R-III
Certificates larger than that held by any other Holder, the first such Holder to
have acquired such Class R-I, Class R-II or Class R-III Certificates shall be
such tax matters person. The Trustee shall act as attorney-in-fact and agent for
the tax matters person of each of the Upper-Tier REMIC, the Middle-Tier REMIC
and the Lower-Tier REMIC, and each Holder of a Percentage Interest in the Class
R-I, Class R-II or Class R-III Certificates, by acceptance thereof, is deemed to
have consented to the Trustee's appointment in such capacity and agrees to
execute any documents required to give effect thereto, and any fees and expenses
incurred by the Trustee in connection with any audit or administrative or
judicial proceeding shall be paid by the Trust Fund.
None of the Trustee, the Depositor, the Master Servicer, the Special
Servicer, or the Holders of the Residual Certificates shall take any action or
omit to take any action if, in taking or omitting to take such action, such
party knows that such action or omission (as the case may be) would cause the
termination of the REMIC status of the Upper-Tier REMIC, the Middle-Tier REMIC
or the Lower-Tier REMIC or the imposition of tax on the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC (other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement).
Notwithstanding any provision of this Section 4.4 to the contrary, the Trustee
shall not be required to take any action that the Trustee in good faith believes
to be inconsistent with any other provision of this Agreement, nor shall the
Trustee be deemed in violation of this Section 4.4 if it takes any action
expressly required or authorized by any other provision of this Agreement, and
the Trustee shall have no responsibility or liability with respect to any act or
omission of the Depositor or the Master Servicer or Special Servicer which
causes the Trustee to be unable to comply with any of clauses (i) through (vi)
of this Section 4.4 or which results in any action contemplated by clauses (i)
or (ii) of the next succeeding sentence. In this regard the Trustee, the
Depositor, the Master Servicer, the Special Servicer, and the Holders of the
Residual Certificates shall (i) exercise reasonable care not to allow the
occurrence of any "prohibited transactions" with the meaning of Code Section
860F(a), unless the party seeking such action shall have delivered to the
Trustee or such other party an Opinion of Counsel (at the requesting
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party's expense) that such occurrence would not (A) result in a taxable gain,
(B) otherwise subject the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC to tax (other than a tax at the highest marginal corporate tax
rate on net income from foreclosure property), or (C) cause any of the
Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC; and (ii) exercise reasonable care not to allow the Trust
Fund to receive income from the performance of services or from assets not
permitted under the REMIC Provisions to be held by a REMIC (provided, however,
that the receipt of any income expressly permitted or contemplated by the terms
of this Agreement shall not be deemed to violate this clause). Neither the
Master Servicer, the Special Servicer nor the Depositor shall be responsible or
liable (except in connection with any act or omission referred to in the two
preceding sentences) for any failure by the Trustee to comply with the
provisions of this Section 4.4. The Depositor, the Special Servicer and the
Master Servicer shall cooperate in a timely manner with the Trustee in supplying
any information within the Depositor's, the Special Servicer's or the Master
Servicer's control (other than any confidential information) that is reasonably
necessary to enable the Trustee to perform its duties under this Section 4.4.
(b) The following assumptions are to be used for purposes of determining
the anticipated payments of principal and interest for calculating the original
yield to maturity and original issue discount with respect to the Regular
Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans in the aggregate will prepay
in accordance with the assumption of a constant prepayment rate of 0%; (ii) none
of the Master Servicer, the Depositor and the Class R-III Certificateholders
will exercise the right described in Section 9.1 of this Agreement to cause
early termination of the Trust Fund; and (iii) no Mortgage Loan is repurchased
under the terms of this Agreement.
SECTION 4.5. IMPOSITION OF TAX ON THE REMICs.
In the event that any tax, including interest, penalties or assessments,
additional amounts or additions to tax, is imposed on the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC, such tax shall be charged against
amounts otherwise distributable to the Holders of the Certificates; provided,
that any taxes imposed on any net income from foreclosure property pursuant to
Code Section 860G(d) or any similar tax imposed by a state or local jurisdiction
shall instead be treated as an expense of the related REO Property in
determining Net REO Proceeds with respect to such REO Property (and until such
taxes are paid, the Master Servicer from time to time shall withdraw from the
Collection Account amounts reasonably determined by the Master Servicer to be
necessary to pay such taxes, which the Master Servicer shall maintain in a
separate, non-interest-bearing account, and the Master Servicer shall deposit in
the Collection Account the excess determined by the Master Servicer from time to
time of the amount in such account over the amount necessary to pay such taxes)
and shall be paid therefrom. Except as provided in the preceding sentence, the
Trustee is hereby authorized to and shall retain or cause to be retained from
Available Funds sufficient funds to pay or provide for the payment of, and to
actually pay, such tax as is legally owed by the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC (but such authorization shall not
prevent the Trustee from contesting, at the expense of the Trust Fund, any such
tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of
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such proceedings). The Trustee is hereby authorized to and shall segregate or
cause to be segregated, in a separate non-interest bearing account, (i) the net
income from any "prohibited transaction" under Code Section 860F(a) or (ii) the
amount of any contribution to the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC after the Startup Day that is subject to tax under Code Section
860G(d) and use such income or amount, to the extent necessary, to pay such tax,
such amounts to be segregated from the Collection Account with respect to any
such net income of or contribution to the Lower-Tier REMIC, from the Middle-Tier
Distribution Account with respect to any such net income of or contribution to
the Middle-Tier REMIC and from the Distribution Account with respect to any such
net income of or contribution to the Upper-Tier REMIC (and return the balance
thereof, if any, to the Collection Account, Middle-Tier Distribution Account or
the Distribution Account, as the case may be). To the extent that any such tax
is paid to the Internal Revenue Service, the Trustee shall retain an equal
amount from future amounts otherwise distributable to the Holders of the Class
R-I, Class R-II or the Class R-III Certificates, as the case may be, and shall
distribute such retained amounts to the Holders of Regular Certificates,
Middle-Tier Regular Interests or Lower-Tier Regular Interests, as applicable,
until they are fully reimbursed and then to the Holders of the Class R-I, the
Class R-II and Class R-III Certificates, as applicable. Neither the Master
Servicer, the Special Servicer nor the Trustee shall be responsible for any
taxes imposed on the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier
REMIC, in any such case, except to the extent such tax is attributable to a
breach of a representation or warranty of the Master Servicer or Special
Servicer or an act or omission of the Master Servicer, the Special Servicer or
the Trustee in contravention of this Agreement, provided, further, that such
breach, act or omission could result in liability under Section 6.3 in the case
of the Master Servicer or Special Servicer or Section 4.4 or 8.1, in the case of
the Trustee. Notwithstanding anything in this Agreement to the contrary, in each
such case, the Master Servicer and the Special Servicer shall not be responsible
for the Trustee's breaches, acts or omissions, and the Trustee shall not be
responsible for the breaches, acts or omissions of the Master Servicer or
Special Servicer.
SECTION 4.6. REMITTANCES; P&I ADVANCES.
(a) For purposes of this Section 4.6, "Applicable Monthly Payment" shall
mean, for any Mortgage Loan with respect to any month, (A) if such Mortgage Loan
is delinquent as to its Balloon Payment (including any Mortgage Loan as to which
the related Mortgaged Property has become an REO Property and for any month
after the related Balloon Payment would have been due), the related Assumed
Scheduled Payment and (B) if such Mortgage Loan is not described by the
preceding clause (including any such Mortgage Loan as to which the related
Mortgaged Property has become an REO Property), the Monthly Payment.
(b) On the Remittance Date immediately preceding each Distribution Date,
the Master Servicer shall:
(i) remit to the Trustee from the Collection Account for deposit in the
Distribution Account an amount equal to the Prepayment Premiums and Yield
Maintenance Charges, received by the Master Servicer in the Collection Period
preceding such Remittance Date;
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(ii) remit to the Trustee from the Collection Account for deposit in the
Distribution Account an amount equal to the Available Funds for such
Distribution Date (excluding P&I Advances and amounts payable with respect to
the Trustee Fee for such Distribution Date );
(iii) make an advance, by deposit into the Collection Account, and remit
such amount to the Distribution Account in an amount equal to the sum of the
Applicable Monthly Payment for each Mortgage Loan to the extent such amounts
were not received on such Mortgage Loans as of the close of business on the
Business Day immediately preceding the Remittance Date; and
(iv) remit to the Trustee for distribution any Default Interest and any
Excess Interest received by the Master Servicer in the Collection Period
preceding such Remittance Date.
Notwithstanding the foregoing, the amount required to be advanced in
respect of delinquent Monthly Payments or Assumed Scheduled Payments on Mortgage
Loans that have been subject to an Appraisal Reduction Event will equal, with
respect to any Distribution Date and any Mortgage Loan, the amount that would be
required to be advanced by the Master Servicer without giving effect to the
Appraisal Reduction multiplied by a fraction, the numerator of which is the
outstanding principal balance of such Mortgage Loan less the amount of such
Appraisal Reduction and the denominator of which is the outstanding principal
balance of such Mortgage Loan.
(c) Any amount advanced by the Master Servicer, or by the Trustee, in its
capacity as successor master servicer pursuant to Section 4.6(b)(iii), as
applicable, shall constitute a P&I Advance for all purposes of this Agreement
and the Master Servicer or the Trustee, as applicable, in its capacity as a
Master Servicer shall be entitled to reimbursement thereof pursuant to 3.6(ii).
The Master Servicer or the Trustee, as applicable, in its capacity as a Master
Servicer shall further be entitled to Advance Interest Amounts accrued on the
amount of any such P&I Advance at the Advance Rate and shall be entitled to
payment or reimbursement thereof pursuant to 3.6(iii).
(d) If, as of 12:00 p.m., New York City time, on any Remittance Date the
Master Servicer shall not (i) have made the P&I Advance required to have been
made on such date pursuant to Section 4.6(b)(iii) or (ii) delivered the
certificate and documentation related to a determination of nonrecoverability,
the Trustee shall be deemed to have given the notice permitted to be given under
Section 7.1 and to have replaced the Master Servicer as successor master
servicer, and the Trustee, in such capacity, shall no later than 12:30 p.m., New
York City time, on such Distribution Date deposit into the Distribution Account
in immediately available funds an amount equal to the P&I Advances otherwise
required to have been made by the Master Servicer.
(e) Anything to the contrary in this Agreement notwithstanding, neither the
Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to
any Monthly Payment or Assumed Scheduled Payment on any date on which a P&I
Advance is otherwise
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required to be made by this Section 4.6 if the Master Servicer or the Trustee,
as applicable, determines that such advance will be a Nonrecoverable Advance.
The Trustee shall be entitled to rely, conclusively, on any determination by the
Master Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance.
The Trustee, in determining whether or not a P&I Advance previously made is, or
a proposed P&I Advance, if made, would be, a Nonrecoverable Advance shall be
subject to the standards applicable to the Master Servicer hereunder.
(f) The Master Servicer or the Trustee, as applicable, shall be entitled
to, and hereby covenants and agrees to promptly seek and effect, the
reimbursement of P&I Advances it makes to the extent permitted pursuant to
Section 3.6(ii) of this Agreement together with any related Advance Interest
Amount in respect of such P&I Advances to the extent permitted pursuant to
Section 3.6(iii).
SECTION 4.7. APPRAISAL REDUCTIONS.
The aggregate amount of any Appraisal Reduction will be allocated by the
Trustee on each Distribution Date for purposes of determining the Voting Rights
and the amount of P&I Advances with respect to the related Mortgage Loan, to the
Certificate Balance of the Class O, Class N, Class M, Class L, Class K, Class J,
Class H, Class G, Class F, Class E, Class D, Class C and Class B Certificates,
in that order, up to the amount of their respective Certificate Balances. On any
Distribution Date, an Appraisal Reduction that otherwise would be allocated to a
Class of Certificates will be allocated to the next most subordinate Class to
the extent that the Certificate Balance for such Class of Certificates (prior to
taking the Appraisal Reduction into account) is less than the amount of such
Appraisal Reduction.
SECTION 4.8. GRANTOR TRUST REPORTING.
The parties intend that the portion of the Trust Fund consisting of (i) the
Default Interest and the subaccount of the Collection Account pertaining to the
Default Interest and (ii) the Excess Interest and the subaccount of the
Collection Account pertaining to the Excess Interest shall constitute, and that
the affairs of the Trust Fund (exclusive of the Trust REMICs) shall be conducted
so as to qualify such portion as a "grantor trust" under the Code, and the
provisions hereof shall be interpreted consistently with this intention. It is
further the intent of the parties that the Class O Certificate is an investment
unit comprised of both a regular interest in the Upper-Tier REMIC and beneficial
ownership of the Grantor Trust Assets. In furtherance of such intentions, the
Trustee shall furnish or cause to be furnished to Class O Certificateholders and
shall file or cause to be filed with the Internal Revenue Service together with
Form 1041 or such other form as may be applicable, the amount of Default
Interest and Excess Interest received or accrued in the case of the Class O
Certificates, at the time or times and in the manner required by the Code.
ARTICLE V.
THE CERTIFICATES
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SECTION 5.1. THE CERTIFICATES.
The Certificates consist of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-EC1 Certificates, the Class A-EC2 Certificates, the
Class B Certificates, the Class C Certificates, the Class D Certificates, the
Class E Certificates, the Class F Certificates, the Class G Certificates, the
Class H Certificates, the Class J Certificates, the Class K Certificates, the
Class L Certificates, the Class M Certificates, the Class N Certificates, the
Class O Certificates, the Class R-I Certificates, the Class R-II Certificates
and the Class R-II Certificates.
The Class A-1, Class A-2, Class A-EC1, Class A-EC2, 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 will be
substantially in the forms annexed hereto as Exhibits A-1, A-2, A-3, A-4, A-5,
A-6, A-7, A-8, A-9, A-10, A-11, A-12, A-13, A-14, A-15, A-16, A-17, A-18, A-19
and A-20, respectively. The Certificates of each Class will be issuable in
definitive physical form only, registered in the name of the holders thereof;
provided, however, that in accordance with Section 5.3 beneficial ownership
interests in the Class A-1, Class A-2, Class A-EC1, Class A-EC2, 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 initially be represented by Book-Entry
Certificates held and transferred through the book-entry facilities of the
Securities Depository, in minimum denominations of authorized initial
Certificate Balance or Notional Balance (except with respect to the Class R-I,
Class R-II and Class R-III Certificates), as described below. The Book-Entry
Certificates shall be in minimum denominations of $25,000 for the Class A-1 and
Class A-2 Certificates, $50,000 for the Class B Certificates, and $100,000 for
the remaining Classes, and in each case multiples of $1 in excess thereof,
except one Class O Certificate, one Class A-EC Certificate and one Class A-EC2
Certificate may be issued which represents a different initial Certificate
Balance or Notional Balance to accommodate the remainder of the related initial
Certificate Balance or related Notional Balance. Each Certificate will share
ratably in all rights of the related Class. The Class R-I, R-II and R-III
Certificates shall each be issuable in one or more registered, definitive
physical certificates in minimum denominations of 25% Percentage Interests and
integral multiples of a 5% Percentage Interest in excess thereof and together
aggregating the entire 100% Percentage Interest in each such Class.
Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
Each Certificate may be printed or in typewritten or similar form, and each
Certificate shall, upon original issue and written instructions from the
Depositor, be executed and authenticated by the Trustee or the Authenticating
Agent and delivered to the Depositor. All Certificates shall be executed by
manual or facsimile signature on behalf of the Trustee or Authenticating Agent
by an authorized officer or signatory. Certificates bearing the signature of an
individual who was at any time the proper officer or signatory of the Trustee or
Authenticating Agent shall bind the Trustee or Authenticating Agent,
notwithstanding that such individual has
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ceased to hold such office or position prior to the delivery of such
Certificates or did not hold such office or position at the date of such
Certificates. 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 in the form set forth in Exhibits A-1 through
A-20 executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 5.2. REGISTRATION, TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Trustee shall keep or cause to be kept at the Corporate Trust
Office books (the "Certificate Register") for the registration, transfer and
exchange of Certificates (the Trustee, in such capacity, being the "Certificate
Registrar"). The names and addresses of all Certificateholders and the names and
addresses of the transferees of any Certificates shall be registered in the
Certificate Register. The Person in whose name any Certificate is so registered
shall be deemed and treated as the sole owner and Holder thereof for all
purposes of this Agreement and the Certificate Registrar, the Master Servicer,
the Special Servicer, the Trustee, any Paying Agent and any agent of any of them
shall not be affected by any notice or knowledge to the contrary. An Individual
Certificate is transferable or exchangeable only upon the surrender of such
Certificate to the Certificate Registrar at the Corporate Trust Office together
with an assignment and transfer (executed by the Holder or his duly authorized
attorney), subject to the requirements of Section 5.2(c), (d), (e) and (f). Upon
request of the Trustee, the Certificate Registrar shall provide the Trustee with
the names, addresses and Percentage Interests of the Holders.
(b) Upon surrender for registration of transfer of any Individual
Certificate, subject to the requirements of Section 5.2(c), (d), (e) and (f),
the Trustee shall execute and the Authenticating Agent shall duly authenticate
in the name of the designated transferee or transferees, one or more new
Certificates in authorized denominations of a like aggregate Certificate
Balance. Such Certificates shall be delivered by the Certificate Registrar in
accordance with Section 5.2(e). Each Certificate surrendered for registration of
transfer shall be canceled and subsequently destroyed by the Certificate
Registrar. Each new Certificate issued pursuant to this Section 5.2 shall be
registered in the name of any Person as the transferring Holder may request,
subject to the provisions of Section 5.2(c), (d), (e) and (f).
(c) The exchange, transfer and registration of transfer of Individual
Certificates that are Privately Placed Certificates shall be subject to the
restrictions set forth below (in addition to the provisions of Section 5.2(d),
(e) and (f)):
(i) The Certificate Registrar shall register the transfer of an Individual
Certificate that is a Privately Placed Certificate if the requested transfer
is being made to a transferee who has provided the Certificate Registrar with
an Investment Representation Letter substantially in the form of Exhibit D-1
hereto (an "Investment Representation Letter"), to the effect that the
transfer is being made to a Qualified Institutional Buyer in accordance with
Rule 144A; or
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(ii) The Certificate Registrar shall register the transfer of an Individual
Certificate that is a Privately Placed Certificate (other than a Class R-I,
Class R-II or Class R-III Certificate), if prior to the transfer, the
transferee furnishes to the Certificate Registrar (1) an Investment
Representation Letter to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable exemption
under the Act, (2) an Opinion of Counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the Act, and (3) a written
undertaking by the transferor to reimburse the Trust for any costs incurred
by it in connection with the proposed transfer. In addition, the Certificate
Registrar may, as a condition of the registration of any such transfer,
require the transferor to furnish such other certificates, legal opinions or
other information (at the transferor's expense) as the Certificate Registrar
may reasonably require to confirm that the proposed transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Act and other applicable laws.
(d) Subject to the restrictions on transfer and exchange set forth in this
Section 5.2, the Holder of one or more Certificates may transfer or exchange the
same in whole or in part (with a Certificate Balance equal to any authorized
denomination) by surrendering such Certificate at the Corporate Trust Office or
at the office of any transfer agent appointed as provided under this Agreement,
together with an executed instrument of assignment or transfer (executed by the
Holder or its duly authorized attorney), in the case of transfer, and a written
request for exchange in the case of exchange. Subject to the restrictions on
transfer set forth in this Section 5.2, following a proper request for transfer
or exchange, the Certificate Registrar shall, within five Business Days of such
request if made at the Corporate Trust Office, or within ten Business Days if
made at the office of a transfer agent (other than the Certificate Registrar),
execute and deliver at the Corporate Trust Office or at the office of such
transfer agent, as the case may be, to the transferee (in the case of transfer)
or the Holder (in the case of exchange) or send by first class mail (at the risk
of the transferee in the case of transfer or the Holder in the case of exchange)
to such address as the transferee or the Holder, as applicable, may request, an
Individual Certificate or Certificates, as the case may require, for a like
aggregate Certificate Balance or Notional Balances, as applicable, and in such
authorized denomination or denominations as may be requested. The presentation
for transfer or exchange of any Individual Certificate shall not be valid unless
made at the Corporate Trust Office or at the office of a transfer agent by the
registered Holder in person, or by a duly authorized attorney-in-fact. The
Certificate Registrar may decline to accept any request for an exchange or
registration of transfer of any Certificate during the period of 15 days
preceding any Distribution Date.
(e) Individual Certificates may only be transferred to Eligible Investors
as described herein. In the event the Certificate Registrar shall determine that
an Individual Certificate is being held by or for the benefit of a Person who is
not an Eligible Investor, or that such holding is unlawful under the laws of a
relevant jurisdiction, then the Certificate Registrar shall void such transfer,
if permitted under applicable law.
(f) No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange referred
to in this Section 5.2 other than for transfers of Privately Placed Certificates
to Institutional Accredited Investors, as
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provided herein. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust for any costs (including the
cost of the Certificate Registrar's counsel's review of the documents and any
legal opinions submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. The Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
(g) Subject to Section 5.2(d), transfers of the Class R-I, Class R-II and
Class R-III Certificates may be made only in accordance with this Section
5.2(g). The Certificate Registrar shall register the transfer of a Class R-I,
Class R-II or Class R-III Certificate if (x) the transferor has advised the
Certificate Registrar in writing that the Certificate is being transferred to a
Qualified Institutional Buyer; and (y) prior to transfer the transferor
furnishes to the Certificate Registrar an Investment Representation Letter. In
addition, the Certificate Registrar may, as a condition of the registration of
any such transfer, require the transferor to furnish such other certifications,
legal opinions or other information (at the transferor's expense) as they may
reasonably be required to confirm that the proposed transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Act and other applicable laws.
(h) Neither the Depositor, the Master Servicer, the Special Servicer, the
Trustee nor the Certificate Registrar is obligated to register or qualify any
Class of Certificates under the Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer of
such Certificates without registration or qualification. Any Certificateholder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Certificate Registrar, against any loss, liability or expense that may result if
the transfer is not exempt from the registration requirements of the Act or is
not made in accordance with such federal and state laws.
(i) No transfer of any Ownership Interest in a Subordinate Certificate
shall be made to (i) an employee benefit plan subject to the fiduciary
responsibility provisions of ERISA, or Section 4975 of the Code, or a
governmental plan subject to any federal, state or local law ("Similar Law"),
which is to a material extent, similar to the foregoing provisions of ERISA or
the Code (collectively, a "Plan"), (ii) a collective investment fund in which
such Plans are invested, (iii) other persons acting on behalf of any such Plan
or using the assets of any such Plan or any entity whose underlying assets
include plan assets by reason of a Plan's investment in the entity (within the
meaning of Department of Labor Regulations Section 2510.3-101), or (iv) an
insurance company that is using the assets of any insurance company separate
account or general account in which the assets of any such Plan are invested (or
which are deemed pursuant to ERISA or any Similar Law to include assets of
Plans) to acquire any such Subordinate Certificates, other than using assets of
its general account in circumstances whereby the assets of the Trust Fund will
not be treated as "plan assets" for purposes of applying the fiduciary
responsibility and prohibited transaction provisions of ERISA, the Code or any
Similar Law. Each prospective transferee of a Subordinate Certificate shall
deliver to the Depositor, the Certificate Registrar and the Trustee, (a) a
transferee representation letter, substantially in the
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form of Exhibit D hereto, stating that the prospective transferee is not a
Person referred to in (i), (ii), (iii) or (iv) above, or (b) an Opinion of
Counsel which establishes to the satisfaction of the Depositor, the Trustee and
the Certificate Registrar that the purchase or holding of the Subordinate
Certificate will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the fiduciary responsibility or prohibited
transaction provisions of ERISA, the Code, or any Similar Law, will not
constitute or result in a non-exempt prohibited transaction within the meaning
of Section 406 or Section 407 of ERISA, Section 4975 of the Code or any Similar
Law, and will not subject the Master Servicer, the Special Servicer, the
Depositor, the Trustee or the Certificate Registrar to any obligation or
liability (including obligations or liabilities under ERISA or Section 4975 of
the Code). The Opinion of Counsel mentioned above shall not be an expense of the
Trustee, the Trust Fund, the Master Servicer, the Special Servicer, the
Certificate Registrar or the Depositor. Neither the Trustee, the Master
Servicer, the Special Servicer, nor the Certificate Registrar will register a
Class R-I, Class R-II or Class R-III Certificate in any Person's name unless
such Person has provided the letter referred to in clause (a) above. Any
transfer of a Subordinate Certificate that would violate, or result in a
non-exempt prohibited transaction under, ERISA or Section 4975 of the Code or
any Similar Law shall be deemed absolutely null and void ab initio.
(j) Each Person who has or acquires any Ownership Interest in a Class R-I
Certificate, Class R-II Certificate or Class R-III Certificate shall be deemed
by the acceptance or acquisition of such Ownership Interest to have agreed to be
bound by the following provisions, and the rights of each Person acquiring any
Ownership Interest in a Class R-I Certificate, a Class R-II Certificate or a
Class R-III Certificate are expressly subject to the following provisions:
(i) Each Person acquiring or holding any Ownership Interest in a Class R-I,
Class R-II or Class R-III Certificate shall be a Permitted Transferee and
shall not acquire or hold such Ownership Interest as agent (including as a
broker, nominee or other middleman) on behalf of any Person that is not a
Permitted Transferee. Any such Person shall promptly notify the Certificate
Registrar of any change or impending change in its status (or the status of
the beneficial owner of such Ownership Interest) as a Permitted Transferee.
Any acquisition described in the first sentence of this Section 5.2(j)(i) by
a Person who is not a Permitted Transferee or by a Person who is acting as an
agent of a Person who is not a Permitted Transferee shall be void and of no
effect, and the immediately preceding owner who was a Permitted Transferee
shall be restored to registered and beneficial ownership of the Ownership
Interest as fully as possible.
(ii) No Ownership Interest in a Class R-I Certificate, a Class R-II
Certificate or Class R-III Certificate may be transferred, and no such
Transfer shall be registered in the Certificate Register, without the express
written consent of the Certificate Registrar, and the Certificate Registrar
shall not recognize a proposed Transfer, and such proposed Transfer shall not
be effective, without such consent with respect thereto. In connection with
any proposed Transfer of any Ownership Interest in a Class R-I Certificate, a
Class R-II Certificate or a Class R-III Certificate, the Certificate
Registrar shall, as a condition to such consent, (x) require delivery to it
in form and substance satisfactory to it, and the proposed transferee shall
deliver to the Certificate Registrar and to the proposed transferor, an
affidavit in substantially the form attached as Exhibit C-1 (a "Transferee
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Affidavit") (A) that such proposed transferee is a Permitted Transferee and
(B) stating that (i) the proposed transferee historically has paid its debts
as they have come due and intends to do so in the future, (ii) the proposed
transferee understands that, as the holder of an Ownership Interest in a
Class R-I Certificate, a Class R-II Certificate or a Class R-III Certificate,
as applicable, it may incur liabilities in excess of cash flows generated by
the residual interest, (iii) the proposed transferee intends to pay taxes
associated with holding the Ownership Interest as they become due, (iv) the
proposed transferee will not transfer the Ownership Interest to any Person
that does not provide a Transferee Affidavit or as to which the proposed
transferee has actual knowledge that such Person is not a Permitted
Transferee or is acting as an agent (including as a broker, nominee or other
middleman) for a Person that is not a Permitted Transferee, and (v) the
proposed transferee expressly agrees to be bound by and to abide by the
provisions of this Section 5.2(j) and (y) other than in connection with the
initial issuance of the Class R-I, Class R-II and Class R-III Certificates,
require a statement from the proposed transferor substantially in the form
attached as Exhibit C-2 (the "Transferor Letter"), that the proposed
transferor has no actual knowledge that the proposed transferee is not a
Permitted Transferee and has no actual knowledge or reason to know that the
proposed transferee's statements in the preceding clauses (x)(B)(i) or (iii)
are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a proposed
transferee under clause (ii) above, if a Responsible Officer of the
Certificate Registrar has actual knowledge that the proposed transferee is
not a Permitted Transferee, no Transfer to such proposed transferee shall be
effected and such proposed Transfer shall not be registered on the
Certificate Register; provided, however, that the Certificate Registrar shall
not be required to conduct any independent investigation to determine whether
a proposed transferee is a Permitted Transferee.
Upon notice to the Certificate Registrar that there has occurred a Transfer
to any Person that is a Disqualified Organization or an agent thereof (including
a broker, nominee, or middleman) in contravention of the foregoing restrictions,
and in any event not later than 60 days after a request for information from the
transferor of such Ownership Interest in a Class R-I Certificate, a Class R-II
Certificate or a Class R-III Certificate, or such agent thereof, the Certificate
Registrar and the Trustee agree to furnish to the IRS and the transferor of such
Ownership Interest or such agent thereof such information necessary to the
application of Section 860E(e) of the Code as may be required by the Code,
including, but not limited to, the present value of the total anticipated excess
inclusions with respect to such Class R-I, Class R-II or Class R-III Certificate
(or portion thereof) for periods after such Transfer. At the election of the
Certificate Registrar and the Trustee, the Certificate Registrar and the Trustee
may charge a reasonable fee for computing and furnishing such information to the
transferor or to such agent thereof referred to above; provided, however, that
such Persons shall in no event be excused from furnishing such information.
SECTION 5.3. BOOK-ENTRY CERTIFICATES.
(a) The Class A-1 Certificates, the Class A-2 Certificates, the Class A-EC1
Certificates, Class A-EC2 Certificates, the Class B Certificates, the Class C
Certificates, the
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Class D Certificates, the Class E Certificates, the Class F Certificates, the
Class G Certificates, the Class H Certificates, the Class J Certificates, the
Class K Certificates, the Class L Certificates, the Class M Certificates, the
Class N Certificates and the Class O Certificates shall, in the case of each
such Class, initially be issued as one or more Book-Entry Certificates
registered in the name of the Securities Depository or its nominees and, except
as provided in subsection (c) below, transfer of such Certificates may not be
registered by the Certificate Registrar unless such transfer is to a successor
securities depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interest in and to such
Certificates through the book-entry facilities of the Securities Depository and,
except as provided in subsection (c) below, shall not be entitled to definitive,
fully registered Certificates ("Definitive Certificates") in respect of such
Ownership Interests. All transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the procedures established by the Securities Depository Participant or
brokerage firm representing each such Certificate Owner. Each Securities
Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Securities Depository's
normal procedures. Neither the Certificate Registrar nor the Trustee shall have
any responsibility to monitor or restrict the transfer of Ownership Interests in
Book-Entry Certificates through the book-entry facilities of the Securities
Depository.
(b) The Trustee, the Master Servicer, the Special Servicer, and the
Certificate Registrar may for all purposes, including the making of payments due
on the Book-Entry Certificates, deal with the Securities Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Securities Depository Participants and brokerage
firms representing such Certificate Owners. Multiple requests and directions
from, and votes of, the Securities Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Trustee may establish a reasonable record date in connection with solicitations
of consents from or voting by Certificateholders and shall give notice to the
Securities Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Securities Depository is no longer willing or able
to properly discharge its responsibilities with respect to any Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Securities Depository with respect to any Class of the
Book-Entry Certificates, the Certificate Registrar shall notify all affected
Certificate Owners, through the Securities Depository, of the occurrence of any
such event and of the availability of Definitive Certificates to such
Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of any Class of the Book-Entry Certificates by the Securities
Depository, accompanied by registration instructions from the Securities
Depository for registration of transfer, the Trustee shall execute, and the
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Certificate Registrar shall authenticate and deliver, the Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any of the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates, the Class C Certificates, the Class D
Certificates, the Class E Certificates, the Class F Certificates, the Class G
Certificates, the Class H Certificates, the Class J Certificates, the Class K
Certificates, the Class L Certificates, the Class M Certificates, the Class N
Certificates and the Class O Certificates, the registered holders of such
Definitive Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
SECTION 5.4. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar such security or indemnity as may be required by it
to save it, the Trustee and the Master Servicer harmless, then, in the absence
of actual knowledge by a Responsible Officer of the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee or the
Authenticating Agent shall execute and authenticate and the Certificate
Registrar shall deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section 5.4, 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 5.4 shall constitute complete and indefeasible
evidence of ownership of the corresponding interest in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.5. APPOINTMENT OF PAYING AGENT.
The Trustee may appoint a paying agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.1. The Trustee shall
cause such Paying Agent, if other than the Trustee or the Master Servicer, to
execute and deliver to the Master Servicer and the Trustee an instrument in
which such Paying Agent shall agree with the Master Servicer and the Trustee
that such Paying Agent will hold all sums held by it for payment to
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums have been paid to such Certificateholders or disposed of
as otherwise provided herein. The initial Paying Agent shall be the Trustee. The
Paying Agent shall at all times be an entity having a long-term unsecured debt
rating of at least "BBB" by each Rating Agency, unless each of the Rating
Agencies has confirmed in writing that a lower rating shall not result, in and
of itself, in a
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downgrading, withdrawal or qualification of the rating then assigned by such
Rating Agency to any Class of the Certificates.
SECTION 5.6. ACCESS TO CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
(a) If any Certificateholder (for purposes of this Section 5.6, an
"Applicant") applies in writing to the Certificate Registrar, and such
application states that the Applicant desires to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication which such
Applicant proposes to transmit, then the Certificate Registrar shall, at the
expense of such Applicant, within ten Business Days after the receipt of such
application, transmit such communication to the Certificateholders as of the
most recent Record Date; provided, however, if such communication relates to
performance by the Master Servicer, the Special Servicer or the Trustee of its
duties hereunder, the Certificate Registrar shall furnish or cause to be
furnished to such Applicant a list of the names and addresses of the
Certificateholders as of the most recent Record Date.
(b) Every Certificateholder, by receiving and holding its Certificate,
agrees with the Trustee that the Trustee and the Certificate Registrar shall not
be held accountable in any way by reason of the disclosure of any information as
to the names and addresses of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 5.7. ACTIONS OF CERTIFICATEHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
an 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, when required, to the Depositor, the Special
Servicer or the Master Servicer. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee, the Depositor, the Special
Servicer and the Master Servicer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Certificateholder of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder shall bind every Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, or omitted to be done, by the
Trustee, the Depositor, the Special Servicer or the Master Servicer in reliance
thereon, whether or not notation of such action is made upon such Certificate.
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(d) The Trustee or Certificate Registrar may require such additional proof
of any matter referred to in this Section 5.7 as it shall deem necessary.
SECTION 5.8. PURCHASE OPTION OF CLASS O CERTIFICATEHOLDERS AND THE SPECIAL
SERVICER.
By giving 15 days' irrevocable prior notice to the Trustee and the Master
Servicer, the Holders of 100% of the Class O Certificates, and if not so
exercised thereby, the Special Servicer, will have the option to purchase any
ARD Loan that is in default on or after its Anticipated Repayment Date at a
price equal to the greater of (i) its outstanding Scheduled Principal Balance
(less any Advances previously made on account of principal) plus accrued and
unpaid interest (less any Advances previously made on account of interest) and
(ii) its fair market value as determined by an Independent appraiser acceptable
to the Master Servicer as of a date not more than 30 days prior thereto. and, in
each case. unreimbursed Advances made with respect thereto (with interest
thereon at the Advance Rate) and unpaid Servicing Compensation allocable to such
ARD Loan. As a condition to such purchase, each such holder or the Special
Servicer, as applicable, will be required to deliver an Opinion of Counsel to
the effect that such purchase (or such right to purchase) would not cause any of
the Trust REMICs to fail to qualify as a REMIC under the Code at any time that
any Certificate is outstanding and either (i) an Opinion of Counsel to the
effect that such purchase would not result in a gain which would be subject to
tax on net income derived from prohibited transactions imposed by Code Section
860F(a)(1) or otherwise result in the imposition of any other tax on any of the
Trust REMICs under the REMIC Provisions of the Code or (ii) an accountant's
certification to the effect that such purchase would not result in the
realization of any net income to any REMIC.
ARTICLE VI.
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
SECTION 6.1. LIABILITY OF THE DEPOSITOR, THE MASTER SERVICER AND THE
SPECIAL SERVICER.
The Depositor, the Master Servicer and the Special Servicer each shall be
liable in accordance herewith only to the extent of the obligations specifically
imposed by this Agreement.
SECTION 6.2. MERGER OR CONSOLIDATION OF THE MASTER SERVICER AND SPECIAL
SERVICER.
Subject to the third paragraph of this Section 6.2, the Master Servicer
will keep in full effect its existence, rights and good standing as a limited
liability company under the laws of the State of Missouri and will not
jeopardize its ability to do business in each jurisdiction in which one or more
of the Mortgaged Properties are located or to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Subject to the following paragraph, the Special Servicer will keep in full
effect its existence, rights and good standing as a limited liability company
under the laws of the State of
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Missouri and will not jeopardize its ability to do business in each jurisdiction
in which one or more of the Mortgaged Properties are located or to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Specially Serviced Mortgage Loans and to perform its respective duties under
this Agreement.
Each of the Master Servicer and Special Servicer may be merged or
consolidated with or into any Person, or transfer all or substantially all of
its assets to any Person, in which case any Person resulting from any merger or
consolidation to which it shall be a party, or any Person succeeding to its
business, shall be the successor of the Master Servicer or Special Servicer, as
applicable hereunder, and shall be deemed to have assumed all of the liabilities
of the Master Servicer or Special Servicer, as applicable hereunder, if each of
the Rating Agencies has confirmed in writing that such merger, consolidation or
transfer and succession shall not result, in and of itself, in a downgrading,
withdrawal or qualification of the rating then assigned by such Rating Agency to
any Class of Certificates.
SECTION 6.3. LIMITATION ON LIABILITY OF THE DEPOSITOR, THE MASTER SERVICER
AND OTHERS.
Neither the Depositor, the Master Servicer, the Special Servicer or the
Directing Certificateholder, nor any of the directors, officers, employees or
agents of the Depositor, the Master Servicer, the Special Servicer or the
Directing Certificateholder (or of any general partner of any of them) shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken, or for refraining from the taking of any action, in good faith pursuant
to this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor or the Master Servicer or Special
Servicer or any such Person against any breach of warranties or representations
made herein, or against any specific liability imposed on the Master Servicer or
Special Servicer for a breach of the Servicing Standard, or against any
liability which would otherwise be imposed by reason of its respective willful
misfeasance, bad faith, fraud or negligence in the performance of its duties or
by reason of reckless disregard of its respective obligations or duties
hereunder. The Depositor, the Master Servicer, the Special Servicer or the
Directing Certificateholder, or any of the directors, officers, employees or
agents of the Depositor, the Master Servicer, the Special Servicer or the
Directing Certificateholder (or of any general partner of any of them) may rely
in good faith on any document of any kind which, prima facie, is properly
executed and submitted by any appropriate Person with respect to any matters
arising hereunder.
The Depositor, the Master Servicer, the Special Servicer and the Directing
Certificateholder, and any of the directors, officers, employees or agents of
the Depositor, the Master Servicer, the Special Servicer or the Directing
Certificateholder (or of any general partner of any of them) shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
expense incurred in connection with any legal action relating to this Agreement
or the Certificates, other than any loss, liability or expense (i) incurred by
reason of its respective willful misfeasance, bad faith, fraud or negligence or
(in the case of the Master Servicer, Special Servicer or Directing
Certificateholder) a breach of the Servicing Standard in the performance of its
respective duties or by reason of reckless disregard of its respective
obligations or duties hereunder; or (ii) imposed by any taxing authority which
loss, liability or expense is not
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specifically reimbursable pursuant to the terms of this Agreement or which
results from a breach (other than a breach with respect to which the Master
Servicer, Special Servicer or Directing Certificateholder, as applicable, would
have no liability under the standard set forth in the first sentence of the
preceding paragraph) by the Master Servicer, the Special Servicer or the agents
of any of them of its obligations hereunder. Notwithstanding anything herein to
the contrary, this Section 6.3 shall survive the termination or maturity of this
Agreement or the resignation or removal of the Depositor, the Master Servicer or
the Special Servicer as regards rights accrued prior to such resignation or
removal.
The Depositor, Master Servicer, Special Servicer and Directing
Certificateholder shall not be under any obligation to appear in, prosecute or
defend any legal action unless such action is related to its respective duties
under this Agreement and in its opinion does not expose it to any expense or
liability; provided, however, that the Depositor, Master Servicer or Special
Servicer may, in its discretion, undertake any action related to its obligations
hereunder which it may deem necessary or desirable with respect to this
Agreement and the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom (except any liability related
to the Master Servicer's or the Special Servicer's obligations under Section
3.1(a)) shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, Master Servicer or Special Servicer shall be entitled to be
reimbursed therefor from the Collection Account as provided in Section 3.6(vi)
of this Agreement.
SECTION 6.4. LIMITATION ON RESIGNATION OF THE MASTER SERVICER AND OF THE
SPECIAL SERVICER.
Each of the Master Servicer and the Special Servicer may assign its
respective rights and delegate its respective duties and obligations under this
Agreement (a) in connection with the sale or transfer of a substantial portion
of its mortgage servicing or asset management portfolio, provided that the
purchaser or transferee accepting such assignment and delegation (i) shall be
satisfactory to the Trustee, or (ii) shall be an established mortgage finance
institution, bank or mortgage servicing institution, organized and doing
business under the laws of any state of the United States or the District of
Columbia, authorized under such laws to perform the duties of a servicer of
mortgage loans, (b) to a Person resulting from a merger, consolidation or
succession that is permitted under Section 6.2, or (c) to an Affiliate of the
Master Servicer or Special Servicer, as the case may be; provided that any
assignment described in the foregoing clauses (a), (b) or (c) shall be permitted
only if (w) the assignee shall execute and deliver to the Trustee an agreement,
in form and substance reasonably satisfactory to the Trustee, which contains an
assumption by such Person of the due and punctual performance and observance of
each covenant and condition to be performed or observed by the Master Servicer
or Special Servicer, as applicable, under this Agreement from and after the date
of such agreement; (x) as evidenced by a letter from each Rating Agency
delivered to the Trustee, each Rating Agency's rating or ratings of the Regular
Certificates in effect immediately prior to such assignment and delegation will
not be qualified, downgraded or withdrawn as a result of such assignment and
delegation; (y) the Master Servicer or Special Servicer, as applicable, shall
not be released from its obligations under this Agreement that arose prior to
the effective date of such assignment and delegation under this Section 6.4; and
(z) the rate at which the Servicing Fee (or any component
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thereof) is calculated shall not exceed the rate in effect prior to such
assignment and delegation. Upon acceptance of such assignment and delegation,
the purchaser or transferee shall be the successor master servicer or special
servicer hereunder, as applicable.
Except as provided in this Section 6.4, neither the Master Servicer nor the
Special Servicer shall resign from the obligations and duties hereby imposed on
it except upon determination that its duties hereunder are no longer permissible
under applicable law. Any such determination permitting the resignation of the
Master Servicer or the Special Servicer, as applicable, shall be evidenced by an
Opinion of Counsel (obtained at the resigning Master Servicer's or Special
Servicer's expense) to such effect delivered to the Trustee.
No resignation of the Master Servicer or the Special Servicer, as
applicable, as contemplated by the preceding paragraphs shall become effective
until the Trustee or a successor master servicer or special servicer, as
applicable, shall have assumed the Master Servicer's or the Special Servicer's
responsibilities, duties, liabilities and obligations hereunder.
SECTION 6.5. RIGHTS OF THE DEPOSITOR AND THE TRUSTEE IN RESPECT OF THE
MASTER SERVICER AND THE SPECIAL SERVICER.
Each of the Master Servicer and the Special Servicer shall afford the
Depositor and the Trustee, upon reasonable notice, during normal business hours
access to all records maintained by it in respect of its rights and obligations
hereunder and access to its officers responsible for such obligations. Upon
request, each of the Master Servicer and the Special Servicer shall furnish to
the Depositor and the Trustee its most recent financial statements and such
other information in its possession regarding its business, affairs, property
and condition, financial or otherwise, as the party requesting such information,
in its reasonable judgment, determines to be relevant to the performance of the
obligations hereunder of the Master Servicer or Special Servicer. Neither the
Depositor nor the Trustee shall have any responsibility or liability for any
action or failure to act by the Master Servicer or Special Servicer and neither
such Person is obligated to supervise the performance of the Master Servicer or
Special Servicer under this Agreement or otherwise.
ARTICLE VII.
DEFAULT
SECTION 7.1. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the following
events:
(i) any failure by the Master Servicer to remit to the Collection Account
or any failure by the Master Servicer to remit to the Trustee for deposit
into the Distribution Account, any amount required to be so remitted by the
Master Servicer pursuant to and in accordance with the terms of this
Agreement; or any failure by the Special Servicer to remit to the REO Account
or any failure by the Special Servicer to remit to the Master Servicer any
amount to be so remitted by the Special Servicer pursuant to and in
accordance with the terms of this Agreement; or
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(ii) any failure on the part of the Master Servicer or Special Servicer
duly to observe or perform in any material respect any other of the covenants
or agreements, or the breach of any representations or warranties provided
herein on the part of the Master Servicer or Special Servicer which
materially and adversely affects the interests of the Certificateholders, the
Master Servicer, the Special Servicer or the Trustee with respect to any
Mortgage Loan and which, in either event, continues unremedied for a period
of 30 days after the date on which written notice of such failure or breach,
requiring the same to be remedied, shall have been given to the Master
Servicer or Special Servicer by the Depositor or the Trustee, or to the
Master Servicer or Special Servicer, the Depositor and the Trustee by the
Holders of Certificates entitled to at least 25% of the aggregate Voting
Rights of any Class affected thereby; or
(iii) confirmation in writing by Moody's that the then-current rating
assigned to any Class of Certificates will be withdrawn, downgraded or
qualified if the Master Servicer or Special Servicer is not removed as Master
Servicer or Special Servicer hereunder; or
(iv) 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 or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer or Special Servicer and such decree
or order shall have remained in force, undischarged or unstayed, for a period
of 60 days; or
(v) the Master Servicer or Special Servicer shall consent to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or Special Servicer, or of
or relating to all or substantially all of the property of the Master
Servicer or Special Servicer; or
(vi) the Master Servicer or Special Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations;
(vii) the Master Servicer shall fail to make any Advance required to be
made by the Master Servicer hereunder (whether or not the Trustee makes such
Advance); or
(vii) the Master Servicer or the Special Servicer, as the case may be, is
no longer on S&P's list of "approved" commercial mortgage loan servicers, and
the Master Servicer or Special Servicer, as applicable, shall not have again
become "approved" within ninety (90) days thereafter;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied, the Trustee may, and at the written direction of the Holders
of at least 25% of the
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aggregate Voting Rights of all Certificates, the Trustee shall, by notice in
writing to the Master Servicer or the Special Servicer, as the case may be,
terminate all of its respective rights and obligations under this Agreement and
in and to the Mortgage Loans and the proceeds thereof, other than any rights it
may have hereunder as a Certificateholder and any rights or obligations that
accrued prior to the date of such termination (including the right to receive
all amounts accrued or owing to it under this Agreement, plus interest at the
Advance Rate on such amounts until received to the extent such amounts bear
interest as provided in this Agreement, with respect to periods prior to the
date of such termination, and the right to the benefits of Section 6.3
notwithstanding any such termination); provided, however, that in the event the
Master Servicer and the Special Servicer is the same Person, any termination of
the Master Servicer shall constitute a termination of the Special Servicer and
vice versa.
On or after the receipt by the Master Servicer or the Special Servicer, as
the case may be, of such written notice, all of its authority and power under
this Agreement, whether with respect to the Certificates or the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
this Section (notwithstanding any failure of the Trustee to satisfy the
criterion set forth in Section 6.4) and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of and at the
expense of the defaulting Master Servicer or Special Servicer, as the case may
be, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise.
Each of the Master Servicer and the Special Servicer, on behalf of itself,
agrees in the event it is terminated pursuant to this Section 7.1 promptly (and
in any event no later than ten Business Days subsequent to such notice) to
provide, at its own expense, the Trustee with all documents and records
requested by the Trustee to enable the Trustee to assume its functions
hereunder, and to cooperate with the Trustee and the successor to its
responsibilities hereunder in effecting the termination of its responsibilities
and rights hereunder, including, without limitation, the transfer to the
successor master servicer or special servicer or the Trustee, as applicable, for
administration by it of all cash amounts which shall at the time be or should
have been credited by the Master Servicer or the Special Servicer to the
Collection Account and any REO Account or Reserve Account or thereafter be
received with respect to the Mortgage Loans, and shall promptly provide the
Trustee or such successor master servicer or special servicer (which may include
the Trustee), as applicable, all documents and records reasonably requested by
it, such documents and records to be provided in such form as the Trustee or
such successor master servicer or special servicer shall reasonably request
(including electromagnetic form), to enable it to assume the Master Servicer's
or Special Servicer's function hereunder. All reasonable costs and expenses of
the successor master servicer or successor special servicer incurred in
connection with transferring the Mortgage Files to the successor master servicer
(or copies of the Mortgage Files relating to Specially Serviced Mortgage Loans
to the successor special servicer) and amending this Agreement to reflect such
succession as Master Servicer or successor special servicer pursuant to this
Section 7.1 shall be paid by the predecessor master servicer or special servicer
upon presentation of reasonable documentation of such costs and expenses;
provided, however, that if any such costs and expenses remain unpaid by the
predecessor master servicer or special servicer within a reasonable time after
presentation of such
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documentation, the Trustee may be reimbursed from the Collection Account for
such unpaid costs and expenses, which shall be deemed to be expenses of the
Trust Fund.
SECTION 7.2. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
Immediately upon delivery by the Trustee to the Master Servicer or the
Special Servicer of a notice of termination pursuant to Section 7.1, the Trustee
shall be its successor in such capacity in all respects under this Agreement and
the transactions set forth or provided for herein and, except as provided
herein, shall be subject to all the responsibilities, duties, limitations on
liability and liabilities relating thereto and arising thereafter placed on the
Master Servicer or Special Servicer by the terms and provisions hereof;
provided, however, that (i) the Trustee shall have no responsibilities, duties,
liabilities or obligations with respect to any act or omission of the Master
Servicer or of the Special Servicer and (ii) any failure to perform, or delay in
performing, such duties or responsibilities caused by the terminated party's
failure to provide, or delay in providing, records, tapes, disks, information or
monies shall not be considered a default by any successor hereunder.
The appointment of a successor master servicer or special servicer shall
not affect any liability of the predecessor master servicer or special servicer,
as applicable, which may have arisen prior to its termination as Master Servicer
or Special Servicer. The Trustee shall not be liable for any of the
representations and warranties of the Master Servicer or of the Special Servicer
herein or in any related document or agreement, for any acts or omissions of the
predecessor master servicer or special servicer, as applicable, or for any
losses incurred in respect of any Permitted Investment by the Master Servicer
pursuant to Section 3.7 hereunder nor shall the Trustee be required to purchase
any Mortgage Loan hereunder. As compensation therefor, the Trustee as successor
master servicer or special servicer shall be entitled to all Servicing
Compensation relating to the Mortgage Loans that accrue after the date of the
Trustee's succession to which the Master Servicer or Special Servicer would have
been entitled if the Master Servicer or Special Servicer, as applicable, had
continued to act hereunder. In the event any Advances made by the Master
Servicer or the Trustee shall at any time be outstanding, or any amounts of
interest thereon shall be accrued and unpaid, all amounts available to repay
Advances and interest hereunder shall be applied entirely to the Advances made
by the Trustee (and the accrued and unpaid interest thereon), until such
Advances made by the Trustee (and accrued and unpaid interest thereon) shall
have been repaid in full.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so
act, or shall, if it is unable to so act, or if the Holders of Certificates
entitled to at least 51% of the aggregate Voting Rights so request in writing to
the Trustee, or if the Trustee is not listed on Moody's or S&P's list of
approved servicers, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution,
the appointment of which will not result in the downgrading, withdrawal or
qualification of the rating or ratings then assigned to any Class of
Certificates as evidenced in writing by each Rating Agency, as the successor to
the Master Servicer or Special Servicer hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Master Servicer
or Special Servicer hereunder. No appointment of a successor to the Master
Servicer or Special Servicer hereunder shall be effective until the assumption
by such successor of all the Master Servicer's or Special
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Servicer's responsibilities, duties and liabilities hereunder. Pending
appointment of a successor to the Master Servicer or Special Servicer hereunder,
unless the Trustee shall be prohibited by law from so acting, the Trustee shall
act in such capacity as herein above provided. In connection with such
appointment and assumption described herein, 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, however, that no such
compensation shall be in excess of that permitted the terminated party
hereunder. The Depositor, the Trustee, the Master Servicer or Special Servicer
and such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
SECTION 7.3. NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any termination pursuant to Section 7.1 above or appointment of a
successor to the Master Servicer or the Special Servicer, the Trustee shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to each Rating Agency.
(b) Within 45 days after the occurrence of any Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee shall
transmit by mail to all Holders of Certificates and to each Rating Agency notice
of such Event of Default, unless such Event of Default shall have been cured or
waived.
SECTION 7.4. OTHER REMEDIES OF TRUSTEE.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.1, shall have the right, in its own name as trustee of an
express trust, to take all actions now or hereafter existing at law, in equity
or by statute to enforce its rights and remedies and to protect the interests,
and enforce the rights and remedies, of the Certificateholders (including the
institution and prosecution of all judicial, administrative and other
proceedings and the filing of proofs of claim and debt in connection therewith).
In such event, the legal fees, expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Trustee shall be entitled to be reimbursed therefor from the
Collection Account as provided in Section 3.6(vi). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
SECTION 7.5. WAIVER OF PAST EVENTS OF DEFAULT; TERMINATION.
The Holders of Certificates evidencing not less than 66-2/3% of the
aggregate Voting Rights of the Certificates may, on behalf of all Holders of
Certificates, waive any default by the Master Servicer or Special Servicer in
the performance of its obligations hereunder and its consequences, except a
default in making any required deposits to (including P&I Advances) or payments
from the Collection Account, the Distribution Account or the REO Account or in
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remitting payments as received, in each case in accordance with this Agreement.
Upon any such waiver of a past default, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
ARTICLE VIII.
CONCERNING THE TRUSTEE
SECTION 8.1. DUTIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge and after the curing or
waiver of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this Agreement
and no permissive right of the Trustee shall be construed as a duty. During the
continuance of an Event of Default of which a Responsible Officer of the Trustee
has actual knowledge, the Trustee shall exercise such of the rights and powers
vested in it by this Agreement, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) The Trustee, upon receipt of any 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
conform on their face to the requirements of this Agreement; provided, however,
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 provided to it hereunder by the Master Servicer, the Special
Servicer, the Depositor or the Paying Agent. If any such instrument is found not
to conform on its face to the requirements of this Agreement in a material
manner, the Trustee shall take action as it deems appropriate to have the
instrument corrected.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that the foregoing
shall be subject to Section 8.2; and provided, further, that:
(i) Prior to the occurrence of an Event of Default of which a Responsible
Officer of the Trustee has actual knowledge, and after the curing or waiver
of all such Events of Default which may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee and, in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
resolutions, certificates, statements, reports, opinions, documents, orders
or other instruments furnished to the Trustee that conform on
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their face to the requirements of this Agreement without responsibility for
investigating the contents thereof;
(ii) The Trustee shall not be personally liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers, unless
it shall be proven that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with
the direction of Holders of Certificates entitled to at least a majority of
the aggregate Voting Rights (or such other percentage as is specified herein)
of each affected Class, or of the aggregate Voting Rights of the
Certificates, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising or omitting
to exercise any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) The Trustee shall not be charged with knowledge of any failure by the
Master Servicer or the Special Servicer to comply with the obligations of the
Master Servicer or the Special Servicer referred to in clause (i) or (ii) of
Section 7.1, or of any breach or occurrence referred to in clause (iii)
through (vii) of Section 7.1, unless a Responsible Officer of the Trustee
obtains actual knowledge of such failure, breach or occurrence. The Trustee
shall be deemed to have actual knowledge of the Master Servicer's or the
Special Servicer's failure to comply with its obligations listed in clause
(i) of Section 7.1 or to provide scheduled reports, certificates and
statements when and as required to be delivered to the Trustee pursuant to
this Agreement.
The Trustee, in its capacity as Trustee, shall not be required to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers,
if in the Trustee's opinion the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it, and none of the
provisions contained in this Agreement shall in any event require the Trustee to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer or the Special Servicer under this Agreement,
except pursuant to Sections 4.6 or 6.4 during such time, if any, as the Trustee
shall be the successor to, and be vested with the rights, duties, powers and
privileges of, the Master Servicer or the Special Servicer in accordance with
the terms of this Agreement. The Trustee shall not be required to post any
surety or bond of any kind in connection with its performance of its obligations
under this Agreement.
SECTION 8.2. CERTAIN MATTERS AFFECTING THE TRUSTEE.
(a) Except as otherwise provided in Section 8.1:
(i) The Trustee may request and rely upon 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 by it to be genuine and to have been
signed or presented by the proper party or parties and the Trustee shall
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have no responsibility to ascertain or confirm the genuineness of any such
party or parties;
(ii) The Trustee may consult with 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 Opinion of Counsel;
(iii) (A) The Trustee shall be under no obligation to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; (B) the right of the
Trustee to perform any discretionary act enumerated in this Agreement shall
not be construed as a duty, and the Trustee shall not be answerable for other
than its negligence or willful misconduct in the performance of any such act;
provided, however, that subject to the foregoing clause (A), nothing
contained herein shall relieve the Trustee of the obligations, upon the
occurrence of an Event of Default (which has not been cured or waived) of
which a Responsible Officer of the Trustee has actual knowledge, to exercise
such of the rights and powers vested in it by this Agreement, and to use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs;
(iv) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least a majority (or such other percentage as is
specified herein) of the aggregate Voting Rights of any affected Class;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such action. The reasonable
expense of every such investigation shall be paid by the Master Servicer or
the Special Servicer if an Event of Default shall have occurred and be
continuing relating to the Master Servicer or the Special Servicer,
respectively, and otherwise by the Certificateholders requesting the
investigation; and
(vi) 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. The Trustee shall not be liable or responsible for the misconduct
or negligence of any of the Trustee's agents or attorneys appointed with due
care by the Trustee hereunder.
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(b) Following the Start-up Day, the Trustee shall not, except as expressly
required by any provision of this Agreement, accept any contribution of assets
to the Trust Fund unless the Trustee shall have received an Opinion of Counsel
(the costs of obtaining such opinion to be borne by the Person requesting such
contribution) to the effect that the inclusion of such assets in the Trust Fund
will not cause any of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC at any time that any Certificates
are outstanding or subject any of the Upper-Tier REMIC, the Middle-Tier REMIC or
the Lower-Tier REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(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
other 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.
The Trustee shall have no duty to conduct any affirmative investigation as
to the occurrence of any condition requiring the repurchase of any Mortgage Loan
pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes
of this Agreement (other than the document review set forth in Section 2.2).
SECTION 8.3. TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS.
The recitals contained herein and in the Certificates shall not be taken as
the statements of the Trustee, the Master Servicer or the Special Servicer and
the Trustee, the Special Servicer and the Master Servicer assume no
responsibility for their correctness. The Trustee, the Master Servicer and the
Special Servicer make no representations or warranties as to the validity or
sufficiency of this Agreement, of the Certificates, or any private placement
memorandum or prospectus used to offer the Certificates for sale or the
validity, enforceability or sufficiency of any Mortgage Loan or related
document. The Trustee shall at no time have any responsibility or liability for
or with respect to the legality, validity and enforceability of any Mortgage or
any Mortgage Loan, or the perfection and priority of any Mortgage or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Trust Fund or its ability to generate the payments to be
distributed to Certificateholders under this Agreement.
Without limiting the foregoing, the Trustee shall not be liable or
responsible for: the existence, condition and ownership of any Mortgaged
Property; the existence of any hazard or other insurance thereon (other than if
the Trustee shall assume the duties of the Master Servicer pursuant to Section
7.2) or the enforceability thereof; the existence of any Mortgage Loan or the
contents of the related Mortgage File on any computer or other record thereof
(other than if the Trustee shall assume the duties of the Master Servicer or the
Special Servicer pursuant to Section 7.2); the validity of the assignment of any
Mortgage Loan to the Trust Fund or of any intervening assignment; the
completeness of any Mortgage File (other than the verification of certain items
in connection with its document review pursuant to Section 2.2); the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Master Servicer or the Special Servicer pursuant to Section 7.2);
the compliance by the
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Depositor, the Master Servicer or the Special Servicer with any warranty or
representation made under this Agreement or in any related document or the
accuracy of any such warranty or representation prior to the Trustee's receipt
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, it being understood
that the Trustee only shall remain responsible for any Trust Fund property that
it may hold in its individual capacity; the acts or omissions of any of the
Depositor, the Master Servicer or the Special Servicer (other than if the
Trustee shall assume the duties of the Master Servicer or the Special Servicer
pursuant to Section 7.2) or any sub-servicer or any Borrower; any action of the
Master Servicer or the Special Servicer (other than if the Trustee shall assume
the duties of the Master Servicer or the Special Servicer pursuant to Section
7.2) or any sub-servicer taken in the name of the Trustee, except with respect
to the Trustee, to the extent such action is taken at the express written
direction of the Trustee; the failure of the Master Servicer or the Special
Servicer or any sub-servicer to act or perform any duties required of it on
behalf of the Trust Fund or the Trustee hereunder; or any action by or omission
of the Trustee taken at the instruction of the Master Servicer or the Special
Servicer (other than in each case if the Trustee shall assume the duties of the
Master Servicer or the Special Servicer pursuant to Section 7.2) unless the
taking of such action is not permitted by the express terms of this Agreement;
provided, however, that the foregoing shall not relieve the Trustee of its
obligation to perform its duties as specifically set forth in this Agreement.
The Trustee shall not be accountable for the use or application by the
Depositor, the Master Servicer or the Special Servicer of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor, the Master Servicer or the
Special Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Collection Account, or the Distribution Account by the Depositor, the
Master Servicer or the Special Servicer, other than in each case any funds held
by the Trustee. The Trustee (unless the Trustee shall have become the successor
master servicer) shall have no responsibility for (A) filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement, (B) maintaining any insurance, (C) paying
or discharging any tax, assessment, or other governmental charge or any lien or
encumbrance of any kind owing with respect to, assessed or levied against any
part of the Trust Fund, or (D) confirming or verifying the contents of any
reports or certificates of the Master Servicer delivered to the Trustee pursuant
to this Agreement believed by the Trustee to be genuine and to have been signed
or presented by the proper party or parties.
In making any calculation hereunder which includes as a component thereof
the payment or distribution of interest for a stated period at a stated rate "to
the extent permitted by applicable law," the Trustee shall assume that such
payment is so permitted unless a Responsible Officer of the Trustee has actual
knowledge, or receives an Opinion of Counsel (at the expense of the Person
asserting the impermissibility) to the effect, that such payment is not
permitted by applicable law.
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SECTION 8.4. TRUSTEE MAY OWN CERTIFICATES.
The Trustee in its individual capacity or any other capacity may become the
owner or pledgee of Certificates, and may deal with the Depositor, the Master
Servicer and the Special Servicer in banking transactions, with the same rights
it would have if it were not Trustee.
SECTION 8.5. PAYMENT OF TRUSTEE'S FEES AND EXPENSES; INDEMNIFICATION.
(a) The Trustee shall be paid the Trustee Fee from amounts on deposit in
the Distribution Account pursuant to Section 4.1.
(b) To the extent specifically permitted by Section 3.12(d) or other
provisions of this Agreement, the Trustee shall be paid or reimbursed from the
Trust Fund or, as applicable, the Master Servicer upon its request for expenses,
disbursements and advances incurred or made by the Trustee pursuant to and in
accordance with any of the provisions of this Agreement except any such expense,
disbursement or advance as may arise from its negligence or bad faith; provided,
however, that the Trustee shall not refuse to perform any of its duties
hereunder solely as a result of the failure to be paid the Trustee Fee and the
Trustee's expenses.
The Master Servicer and the Special Servicer covenant and agree to pay or
reimburse the Trustee for the reasonable expenses, disbursements and advances
incurred or made by the Trustee in connection with any transfer of the servicing
responsibilities of the Master Servicer or the Special Servicer, as applicable
hereunder, pursuant to or otherwise arising from the resignation or removal with
cause of the Master Servicer or the Special Servicer, as applicable, in
accordance with any of the provisions of this Agreement (and including the
reasonable fees and expenses and disbursements of its counsel and all other
persons not regularly in its employ), except any such expense, disbursement or
advance as may arise from the negligence or bad faith of the Trustee.
(c) Each of the Paying Agent, the Certificate Registrar, the Custodian, the
Master Servicer and the Special Servicer shall indemnify the Trustee and its
respective Affiliates and each of the directors, officers, employees and agents
of the Trustee, and its respective Affiliates (each, an "Indemnified Party"),
and hold each of them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the Indemnified
Party may sustain in connection with this Agreement related to such party's
respective willful misconduct, bad faith, fraud or negligence in the performance
of its respective duties hereunder or by reason of reckless disregard of its
respective obligations and duties hereunder (including in the case of the Master
Servicer or the Special Servicer, any agent of the Master Servicer or the
Special Servicer).
(d) The Trust Fund shall indemnify each Indemnified Party from, and hold it
harmless against, any and all losses, liabilities, damages, claims or expenses
(including reasonable attorneys' fees) arising in respect of this Agreement or
the Certificates, in each case to the extent, and only to the extent, such
payments are expressly reimbursable under this Agreement or are "unanticipated
expenses incurred by a REMIC" within the meaning of
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Treasury Regulations Section 1.860G-1(b)(3)(ii), other than (i) those resulting
from the negligence, fraud, bad faith or willful misconduct of the Trustee and
(ii) those as to which such Indemnified Party is entitled to indemnification
pursuant to Section 8.5(c). The term "unanticipated expenses incurred by a
REMIC" shall include any fees, expenses and disbursements of any separate
trustee or co-trustee appointed hereunder, only to the extent such fees,
expenses and disbursements were not reasonably anticipated as of the Closing
Date and the losses, liabilities, damages, claims or expenses (including
reasonable attorneys' fees) incurred or advanced by an Indemnified Party in
connection with any litigation arising out of this Agreement, including, without
limitation, under Section 2.3, Section 3.10, the third paragraph of Section
3.11, Section 8.11, Section 4.5, Section 5.1, and Section 7.1. The right of
reimbursement of the Indemnified Parties under this Section 8.5(d) shall be
senior to the rights of all Certificateholders.
(e) Notwithstanding anything herein to the contrary, this Section 8.5 shall
survive the termination or maturity of this Agreement or the resignation or
removal of the Trustee as regards rights accrued prior to such resignation or
removal and (with respect to any acts or omissions during their respective
tenures) the resignation, removal or termination of the Master Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar or the Custodian.
(f) This Section 8.5 shall be expressly construed to include, but not be
limited to, such indemnities, compensation, expenses, disbursements, advances,
losses, liabilities, damages and the like, as may pertain or relate to any
environmental law or environmental matter.
SECTION 8.6. ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of any state or the United States of
America, authorized under such laws to exercise corporate trust powers and to
accept the trust conferred under this Agreement, having a combined capital and
surplus of at least $50,000,000 and a rating on its unsecured long-term debt of
at least "AA-" from S&P and Aa3 from Moody's, unless each of the Rating Agencies
has confirmed in writing that a lower rating shall not result, in and of itself,
in a downgrading, withdrawal or qualification of the rating then assigned by
such Rating Agency to any Class of the Certificates and subject to supervision
or examination by federal or state authority and shall not be an Affiliate of
the Master Servicer or the Special Servicer (except during any period when the
Trustee has assumed the duties of the Master Servicer or the Special Servicer,
as applicable, pursuant to Section 7.2). If a corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
purposes of this Section the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In the event that the place of business
from which the Trustee administers the Trust Fund is a state or local
jurisdiction that imposes a tax on the Trust Fund or the net income of a REMIC
(other than a tax corresponding to a tax imposed under the REMIC Provisions) the
Trustee shall elect, at its sole discretion, either to (i) resign immediately in
the manner and with the effect specified in Section 8.7, (ii) pay such tax out
of the Trustee's own funds and continue as Trustee, or (iii) administer the
Trust Fund from a state and local
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jurisdiction that does not impose such a tax. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect specified
in Section 8.7.
SECTION 8.7. RESIGNATION AND REMOVAL OF THE TRUSTEE.
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor, the Master Servicer,
the Special Servicer and each Rating Agency. Upon such notice of resignation,
the Master Servicer shall promptly appoint a successor trustee (meeting the
requirements of Section 8.8), by written instrument, in triplicate, which
instrument shall be delivered to the Depositor, the resigning Trustee, and the
successor trustee. Notwithstanding the foregoing, if no successor trustee shall
have been so appointed and 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.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.6 and shall fail to resign after written request
therefor by the Depositor or Master Servicer, or if at any time the Trustee
shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or
a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor or the Master Servicer may remove the Trustee and shall promptly
appoint a successor trustee by written instrument, which shall be delivered to
the Trustee so removed and to the successor trustee.
The Holders of Certificates entitled to at least a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee
(meeting the requirements of Section 8.8) by written instrument or instruments,
in five originals, signed by such Holders or their attorneys-in-fact duly
authorized, one complete set of which instruments shall be delivered to the
Depositor, one complete set to the Master Servicer, one complete set to the
Special Servicer, one complete set to the Trustee so removed, and one complete
set to the successor trustee so appointed.
Any resignation or removal of the Trustee and appointment of a successor
trustee shall not become effective until acceptance of appointment by the
successor trustee as provided in Section 8.8.
SECTION 8.8. SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 8.7 shall execute,
acknowledge and deliver to the Depositor and to the predecessor trustee
instruments accepting its appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as Trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements
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held by it hereunder, and the Depositor and the predecessor trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties and obligations. No successor trustee
shall accept appointment as provided in this Section 8.8 unless at the time of
such acceptance such successor trustee shall be eligible under the provisions of
Section 8.6.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.8, 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.
SECTION 8.9. MERGER OR CONSOLIDATION OF TRUSTEE.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of Section
8.6, without the execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding.
SECTION 8.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act (at the expense of the Trustee) as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity, such title to the Trust Fund, or any part thereof, and, subject to the
other provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall no longer be in existence or shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
or in case an Event of Default shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. Except as required
by applicable law, the appointment of a co-trustee or separate trustee shall not
relieve the Trustee of its responsibilities hereunder. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.6 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.8 hereof.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether
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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 Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee solely
at the direction of the Trustee.
No trustee under this Agreement shall be personally liable by reason of any
act or omission of any other trustee under this Agreement. The Depositor and the
Trustee acting jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee, except that if the Depositor is no longer in
existence, or if the separate trustee or co-trustee is an employee of the
Trustee, the Trustee acting alone may accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Every such instrument shall be filed with the Trustee.
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. In no
event shall any such separate trustee or co-trustee be entitled to any provision
relating to the conduct of, affecting the liability of, or affording protection
to such separate trustee or co-trustee that imposes a standard of conduct less
stringent than that imposed on the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
Any separate trustee or co-trustee may, at any time, constitute the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts hereunder shall vest in and be exercised
by the Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
SECTION 8.11. AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent to execute and to
authenticate Certificates. The Authenticating Agent must be acceptable to the
Depositor and the Master Servicer and must be a corporation organized and doing
business under the laws of the United States of America or any state, having a
principal office and place of business in a state and city acceptable to the
Depositor and the Master Servicer, having a combined capital and surplus of at
least $15,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by federal or state authorities. The Trustee shall
serve as the initial Authenticating Agent and the Trustee hereby accepts such
appointment.
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Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall 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.
The Authenticating Agent may at any time resign by giving at least 30 days
advance written notice of resignation to the Trustee, the Depositor, the Special
Servicer and the Master Servicer. The Trustee may at any time terminate the
agency of the Authenticating Agent by giving written notice of termination to
the Authenticating Agent, the Depositor, the Special Servicer and the Master
Servicer. 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 this Section 8.11, the Trustee promptly shall
appoint a successor authenticating agent, which shall be acceptable to the
Master Servicer and the Depositor, and shall mail notice of such appointment to
all Certificateholders. 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 herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section
8.11.
The Authenticating Agent shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee. The Trustee shall
pay the Authenticating Agent reasonable compensation from its own funds.
SECTION 8.12. APPOINTMENT OF CUSTODIANS.
The Trustee may appoint one or more Custodians to hold all or a portion of
the Mortgage Files as agent for the Trustee. The Trustee agrees to comply with
the terms of each agreement entered into with such Custodian and to enforce the
terms and provisions thereof against the Custodian for the benefit of the
Certificateholders. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have a combined capital and
surplus of at least $10,000,000 maintain a fidelity bond and errors and
omissions policy that would meet the custodial requirements of prudent
institutional commercial mortgage loan custodians, and shall be qualified to do
business in the jurisdiction in which it holds any Mortgage File. The Trustee
shall pay the Custodian reasonable compensation from its own funds. The Trustee
shall serve as the initial Custodian.
SECTION 8.13 TRUSTEE COVENANT.
The Trustee hereby covenants, to its best knowledge, which may be based
upon information obtained from vendors who have responded to the Trustee's
supplier inquiries and/or from information obtained by the Trustee from sources
which the Trustee reasonably believes are reliable, that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by Trustee,
which Trustee has identified as being mission-critical to its business for
purposes of its operations and for purposes of compiling, reporting or
generating data required by
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this Agreement, will be capable of accurately performing calculations or other
processing with respect to dates after August 31, 1999 as a result of the
changing of the date from 1999 to 2000, including leap year calculations, when
used for the purpose for which it was intended, assuming that all other
products, including other software or hardware, when used in combination with
such software or hardware designed or purchased or licensed by the Trustee
properly exchange date data.
ARTICLE IX.
TERMINATION
SECTION 9.1. TERMINATION.
(a) The respective obligations and responsibilities of the Master Servicer,
the Special Servicer, the Depositor and the Trustee created hereby with respect
to the Certificates (other than the obligation to make certain payments and to
send certain notices to Certificateholders as hereinafter set forth) shall
terminate immediately following the occurrence of the last action required to be
taken by the Trustee pursuant to this Article IX on the Termination Date;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of twenty-one years from the death of the survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the United Kingdom, living on the date hereof.
(b) The Trust Fund, the Upper-Tier REMIC, the Middle-Tier REMIC and the
Lower-Tier REMIC shall be terminated and the assets of the Trust Fund shall be
sold or otherwise disposed of in connection therewith, only pursuant to a "plan
of complete liquidation" within the meaning of Code Section 860F(a)(4)(A)
providing for the actions contemplated by the provisions hereof pursuant to
which the applicable Notice of Termination is given and requiring that the Trust
Fund, the Upper-Tier REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC shall
terminate on a Distribution Date occurring not more than 90 days following the
date of adoption of the plan of complete liquidation. For purposes of this
Section 9.1(b), the Notice of Termination given pursuant to Section 9.1(c) shall
constitute the adoption of the plan of complete liquidation as of the date such
notice is given, which date shall be specified by the Trustee in the final
federal income tax returns of the Upper-Tier REMIC, the Middle-Tier REMIC and
the Lower-Tier REMIC.
(c) Any Holder of a Class R-III Certificate representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and the Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to at least the greater of:
(i) the sum of (A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the month preceding
such Distribution Date (less any Advances previously made on account of
principal); (B) the
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fair market value of all other property included in the Trust Fund as of the
last day of the month preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer as of a date not more
than 30 days prior to the last day of the month preceding such Distribution
Date; (C) all unpaid interest accrued on such principal balance of each such
Mortgage Loan (including for this purpose any Mortgage Loan as to which title
to the related Mortgaged Property has been acquired) at the Mortgage Rate to
the last day of the month preceding such Distribution Date (less any Advances
previously made on account of interest); (D) the aggregate amount of
unreimbursed Advances (with interest thereon at the Advance Rate) and unpaid
Servicing Compensation and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage Loans and all other
property acquired in respect of any Mortgage Loan in the Trust Fund, on the
last day of the month preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer as of a date not more
than 30 days prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage Rate and
disposition expenses.
(d) The Master Servicer may also effect such termination as provided above
if it first notifies the Holders of the Class R-III Certificates through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and such Holders do not terminate the Trust Fund as
described above within such 30 day period.
(e) The Depositor may also effect such termination as provided above if it
first notifies the Holders of the Class R-III Certificates through the Trustee
and the Special Servicer of its intention to do so in writing at least 30 days
prior to the Early Termination Notice Date and neither such Holders nor the
Master Servicer terminates the Trust Fund as described above within such 30 day
period.
(f) All costs and expenses incurred by any party to this Agreement or by
the Trust Fund in connection with the purchase of the Mortgage Loans and other
assets of the Trust Fund pursuant to this Section 9.1 shall be borne by the
party exercising its purchase rights hereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser pursuant
to Section 9.1(c).
(g) If the Trust Fund has not been previously terminated pursuant to
Sections 9.1(c), (d) or (e), the Trustee shall determine as soon as practicable
the Distribution Date on which the Trustee reasonably anticipates, based on
information with respect to the Mortgage Loans previously provided to it, that
the final distribution will be made (i) to the Holders of outstanding Regular
Certificates, and to the Trustee in respect of the Lower-Tier Regular Interests
and Middle-Tier Regular Interests notwithstanding that such distribution may be
insufficient to distribute in full the Certificate Balance of each Certificate,
Middle-Tier Regular Interest or Lower-Tier Regular Interest, together with
amounts required to be distributed on such Distribution Date pursuant to Section
4.1(a) or 4.1(b) or (ii) if no such Classes of Certificates are then
outstanding, to the Holders of the Class R-III Certificates of any amount
remaining in the Collection Account, to the Holders of the Class R-II
Certificates of any amounts remaining in the
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Middle-Tier Distribution Account and to the Holders of the Class R-I
Certificates of any amount remaining in the Distribution Account, in any such
case, following the later to occur of (A) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund or (B) the
liquidation or disposition pursuant to Section 3.18 of the last asset held by
the Trust Fund.
(h) Notice of any termination of the Trust Fund pursuant to this Section
9.1 shall be mailed by the Trustee to affected Certificateholders (with a copy
to the Master Servicer and each Rating Agency) at their addresses shown in the
Certificate Registrar as soon as practicable after the Trustee shall have
received, given or been deemed to have received a Notice of Termination but in
any event not more than thirty days, and not less than ten days, prior to the
Anticipated Termination Date. The notice mailed by the Trustee to affected
Certificateholders shall:
(i) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of Certificates of the
Classes specified therein;
(ii) specify the amount of any such final distribution, if known; and
(iii) state that the final distribution to Certificateholders will be made
only upon presentation and surrender of Certificates at the office of the
Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for
any reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(i) Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to this Section 9.1 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have
been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds in trust and of contacting Certificateholders shall be
paid out of such funds. If within two years after the second notice, any such
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Master Servicer all amounts distributable to the Holders
thereof, at which time the obligations of the Trustee to such Holders with
respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender
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its Certificate(s) for final payment thereof in accordance with this Section
9.1. Such funds held by the Master Servicer shall not be invested.
SECTION 9.2. ADDITIONAL TERMINATION REQUIREMENTS.
In the event that the Holder of a Class R-III Certificate representing
greater than a 50% Percentage Interest in such Class, the Master Servicer or the
Depositor exercises its purchase option as provided in Section 9.1(c), the Trust
Fund shall be terminated in accordance with the following additional
requirements unless the Trustee has received an Opinion of Counsel or other
evidence to the effect that the failure to comply with such requirements (i)
will not cause the termination of the Trust Fund to fail to constitute a
"qualified liquidation" of each of the Upper-Tier REMIC, the Middle-Tier REMIC
and the Lower-Tier REMIC within the meaning of Code Section 860F(a)(4)(A) and
(ii) will not subject any of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC to tax or cause either the Upper-Tier REMIC, the Middle-Tier
REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(a) The notice given by the holder of a Class R-III Certificate
representing greater than a 50% Percentage Interest in such Class under Section
9.1 shall provide that such notice constitutes the adoption of a plan of
complete liquidation of the Trust Fund as of the date of such notice (or, if
earlier, the date on which the first such notice is mailed to the Trustee and
the Master Servicer). The Trustee shall also specify such date in a statement
attached to the final tax returns of each of the Upper-Tier REMIC, the
Middle-Tier REMIC and the Lower-Tier REMIC; and
(b) At or after the time of adoption of such a plan of complete liquidation
and at or prior to the final Distribution Date, the Trustee shall sell all of
the assets of the Trust Fund to the holder of such Class R-III Certificates, the
Master Servicer or the Depositor for cash at the purchase price specified in
Section 9.1 and shall distribute such cash in the manner specified in Section
9.1.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. COUNTERPARTS.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
SECTION 10.2. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
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No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement
or the Mortgage Loans, unless, with respect to this Agreement, such Holder
previously shall have given to the Trustee a written notice of default and of
the continuance thereof, as hereinbefore provided, and unless also the Holders
of Certificates representing at least 25% of the aggregate Voting Rights
allocated to each affected Class of Certificates shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 30 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
of any Class shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Certificates of such Class. 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 10.3. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES) AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 10.4. NOTICES.
All demands, notices and communications hereunder shall be in
writing, shall be deemed to have been given upon receipt (or, in the case of
notice by telecopy, upon confirmation of receipt) as follows:
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If to the Trustee, to:
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001-2697
Attention: Capital Markets Fiduciary Services (CMBS)
Facsimile: (212) 946-7317
With copies to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Michael Gambro, Esq.
Telecopy No.: (212) 504-6666
If to the Depositor, to:
Prudential Securities Secured Financing Corporation
One New York Plaza
New York, New York 10292-2018
Attention: Peter Riemenshneider
Telecopy No.: (212) 778-7818
With copies to:
Latham & Watkins
885 Third Avenue
New York, New York 10022
Attention: Kevin C. Blauch, Esq.
Telecopy No.: (212) 751-4864
If to the Master Servicer, to:
National Realty Funding L.C.
911 Main Street, Suite 1400
Kansas City, Missouri 64105
Attention: E. J. Burke
Telecopy No.: (816) 221-8848
With copies to:
Polsinelli, White, Vardeman & Shalton
Plaza Steppes Building
700 West 47th Street, Suite 1000
Kansas City, Missouri 64112
Attention: Daniel J. Flanigan, Esq.
Telecopy No.: (816) 753-1536
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If to the Special Servicer, to:
National Realty Funding L.C.
911 Main Street, Suite 1400
Kansas City, Missouri 64105
Attention: E. J. Burke
Telecopy No.: (816) 221-8848
With copies to:
Polsinelli, White, Vardeman & Shalton
Plaza Steppes Building
700 West 47th Street, Suite 1000
Kansas City, Missouri 64112
Attention: Daniel J. Flanigan, Esq.
Telecopy No.: (816) 753-1536
If to the Transferor, to:
Prudential Securities Credit Corp.
One New York Plaza
New York, New York 10292
Attention: Clay Lebhar
Telecopy No.: (212) 214-1000
With copies to:
Latham & Watkins
885 Third Avenue
New York, New York 10022
Attention: Kevin C. Blauch, Esq.
Telecopy No.: (212) 751-4864
If to the Mortgage Loan Sellers, to:
Greenwich Capital Financial Products, Inc.
600 Steamboat Road
Greenwich, CT 06830
With copies to:
Sidley & Austin
875 Third Avenue
New York, New York 10022
Attention: George Petrow
Telecopy No. 906-2021
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National Realty Finance L.C.
911 Main Street, Suite 1400
Kansas City, Missouri 64105
Attention: E.J. Burke
Telecopy No.: (816) 221-8848
With copies to:
Polsinelli, White, Vardeman & Shalton
Plaza Steppes, Building 700
West 47th Street, Suite 1000
Kansas City, Missouri 64112
Attention: Daniel J. Flanigan, Esq.
Telecopy No.: (816) 753-1536
and
Bridger Commercial Realty Finance LLC
100 Shoreline Highway
Suites 295 & 125
Mill Valley, CA 94941
With copies to:
Steefel, Levitt & Weiss
1 Embarcadero Center, 30th Floor
San Francisco, CA 94111
Attention: Clayton Gantz
Telecopy No.: (415) 788-2019
If to any Certificateholder, to the address set forth in the Certificate
Register, or, in the case of the parties to this Agreement, to such other
address as such party shall specify by written notice to the other parties
hereto.
SECTION 10.5. 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, to the
extent permitted by applicable law, 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.
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SECTION 10.6. NOTICE TO THE DEPOSITOR AND EACH RATING AGENCY.
(a) The Trustee shall use its reasonable best efforts to promptly provide
written notice to the Depositor and each Rating Agency with respect to each of
the following of which a Responsible Officer of the Trustee has actual
knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the merger, consolidation, resignation or termination of the Master
Servicer, Special Servicer or Trustee;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.3(d) or 2.3(e);
(v) the final payment to any Class of Certificateholders; and
(vi) each report to Certificateholders described in Section 4.2.
(b) The Master Servicer shall promptly furnish to each Rating Agency copies
of the following:
(i) each of its annual statements as to compliance described in Section
3.14;
(ii) each of its annual independent public accountants' servicing reports
described in Section 3.15; and
(iii) annual reports of each Borrower with respect to the net operating
income and occupancy rates required to be delivered by the related Mortgage
and actually received by the Master Servicer pursuant thereto to the extent
consistent with applicable law and the related Mortgage Loan Documents.
(c) The Special Servicer, shall furnish each Rating Agency with such
information with respect to any Specially Serviced Mortgage Loan as such Rating
Agency shall request and which the Special Servicer can obtain to the extent
consistent with applicable law and the related Mortgage Loan Documents.
(d) Notices to each Rating Agency shall be addressed as follows:
Standard & Poor's Ratings Services
55 Water Street
New York, New York 10041
Attention: Commercial Mortgage Surveillance Manager
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Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Commercial Mortgage Monitoring Group
Telecopy No.: (212) 553-1350
or in each case to such other address as any Rating Agency shall specify by
written notice to the parties hereto.
SECTION 10.7. AMENDMENT.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Special Servicer and the Trustee, without the consent of
any of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be inconsistent with any
other provisions herein or therein, (iii) to amend any provision hereof to the
extent necessary or desirable to maintain the rating or ratings assigned to each
of the Classes of Regular Certificates by each Rating Agency, or (iv) to make
any other provisions with respect to matters or questions arising under this
Agreement, which shall not be inconsistent with the provisions of this Agreement
and will not result in the downgrading, withdrawal or qualification of the
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing and, in all cases, which, as
evidenced by an Opinion of Counsel at the expense of the party (other than the
Trustee, unless such amendment modifies or otherwise relates solely to the
obligations, duties or rights of the Trustee) requesting such amendment, shall
not adversely affect in any material respect the interests of any
Certificateholder.
This Agreement may also be amended from time to time by the Depositor, the
Master Servicer, the Special Servicer and the Trustee with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66 2/3% of the aggregate Voting Rights allocated to each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, amounts which are required to be distributed on any Certificate
without the consent of each affected Certificateholder;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or inaction
under this Agreement, without the consent of the Holders of all
Certificates then outstanding; or
(iii) alter the Servicing Standard set forth in Section 3.1 or
the obligations of the Master Servicer or the Trustee to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Voting Rights of the Class or
Classes affected thereby.
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Further, the Depositor, the Master Servicer, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders, may amend this Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Trust REMICs as three separate REMICs, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
In the event that neither the Depositor nor the successor thereto, if any,
is in existence, any amendment under this Section 10.7 shall be effective with
the consent in writing of the Trustee, the Master Servicer, the Special
Servicer, and, to the extent required by this Section, the Certificateholders
and each Rating Agency.
Promptly after the execution of any amendment, the Master Servicer shall
furnish written notification of the substance of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 10.7 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
method of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe; provided, however, that such method
shall always be by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no amendment
shall be made to this Agreement unless the Master Servicer and the Trustee shall
have received an Opinion of Counsel, at the expense of the party requesting such
amendment (or, if such amendment is required by any Rating Agency to maintain
the rating issued by it or requested by the Trustee for any purpose described in
clause (i) or (ii) of the first sentence of this Section, then at the expense of
the Trust Fund), to the effect that such amendment will not cause any of the
Upper-Tier REMIC, the Middle-Tier REMIC or Lower-Tier REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding or cause a tax to
be imposed on the Trust Fund under the REMIC Provisions (other than a tax at the
highest marginal corporate tax rate on net income from foreclosure property).
Prior to the execution of any amendment to this Agreement, the Trustee, the
Special Servicer and the Master Servicer shall be entitled to receive and rely
conclusively upon an Opinion of Counsel, at the expense of the party requesting
such amendment (or, if such amendment is required by any Rating Agency to
maintain the rating issued by it or requested by the Trustee for any purpose
described in clause (i), (ii) or (iii) (which do not modify or otherwise relate
solely to the obligations, duties or rights of the Trustee) of the first
sentence of this Section, then at the expense of the Trust Fund) stating that
the execution of such amendment is authorized or permitted by this Agreement.
The Trustee may, but shall not be obligated to, enter into any
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such amendment which affects the Trustee's own rights, duties or immunities
under this Agreement.
SECTION 10.8. CONFIRMATION OF INTENT.
It is the express and specific intent of the parties hereto that the
conveyance of the Trust Fund (including the Mortgage Loans) by the Depositor to
the Trustee on behalf of Certificateholders as contemplated by this Agreement
and the sale by the Depositor of the Certificates be, and be treated for all
purposes as, a true, complete and absolute sale by the Depositor of the
undivided portion of the beneficial interest in the Trust Fund represented by
the Certificates. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Trust Fund 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 Trust Fund is held to
continue to be property of the Depositor then (a) this Agreement shall also be
deemed to be a security agreement under applicable law; (b) the transfer of the
Trust Fund provided for herein shall be deemed to be a grant by the Depositor to
the Trustee on behalf of Certificateholders of a first priority security
interest in all of the Depositor's right, title and interest in and to the Trust
Fund and all amounts payable to the holders of the Mortgage Loans in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Account and the Distribution Account, whether in the
form of cash, instruments, securities or other property; (c) the possession by
the Trustee (or the Custodian on its behalf) of Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest pursuant to Section 9-305 of the Missouri and
New York Uniform Commercial Codes; and (d) notifications to Persons holding such
property, and acknowledgments, receipts or confirmations from Persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. Any assignment of the interest of the Trustee pursuant to any
provision hereof shall also be deemed to be an assignment of any security
interest created hereby.
The Depositor shall, and upon the request of the Master Servicer, the
Trustee shall, to the extent consistent with this Agreement (and at the expense
of the Trust Fund), take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement. It is the intent of the parties that such a security
interest would be effective whether any of the Certificates are sold, pledged or
assigned.
SECTION 10.9. 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
173
<PAGE>
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.
174
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer and the Trustee have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first above
written.
PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION, as Depositor
By:_______________________________
Name:
Title:
NATIONAL REALTY FUNDING L.C.,
as Master Servicer
By:_______________________________
Name:
Title:
NATIONAL REALTY FUNDING L.C.,
as Special Servicer
By:_______________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as Trustee, Custodian, Certificate
Registrar and Paying Agent
By:_______________________________
Name:
Title:
175
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___th day of ______________________, before me appeared
__________________________ to me personally known, who being by me duly sworn
did say that he/she is a ________________________ of PRUDENTIAL SECURITIES
SECURED FINANCING CORPORATION, a Delaware corporation and that he signed his
name thereto under authority of the board of directors of said corporation and
on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
________________________________
NOTARY PUBLIC in and for said
County and State
My Commission expires:
(stamp)
(seal)
176
<PAGE>
STATE OF MISSOURI )
) ss.:
COUNTY OF )
On this ___th day of ____________________________, before me appeared
____________________, to me personally known, who being by me duly sworn did say
that he/she is a __________________________ of National Realty Funding L.C., a
Missouri limited liability company, and that the foregoing instrument was signed
on behalf of said company by authority of its board of directors, and said
__________________ acknowledged said instrument to be the free act and deed of
said limited liability company.
________________________________
NOTARY PUBLIC in and for said
County and State
My Commission expires:
(stamp)
(seal)
177
<PAGE>
STATE OF MISSOURI )
) ss.:
COUNTY OF )
On this ___th day of ____________________________, before me appeared
____________________, to me personally known, who being by me duly sworn did say
that he/she is a __________________________ of National Realty Funding L.C., a
Missouri limited liability company, and that the foregoing instrument was signed
on behalf of said company by authority of its board of directors, and said
__________________ acknowledged said instrument to be the free act and deed of
said limited liability company.
WITNESS my hand and seal hereto affixed the day and year first above
written.
________________________________
NOTARY PUBLIC in and for said
County and State
My Commission expires:
(stamp)
(seal)
178
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___th day of __________________________, before me, the
undersigned, a Notary Public in and for the State of New York, duly commissioned
and sworn, personally appeared _____________________, to me known who, by me
duly sworn, did depose and acknowledge before me and say that he/she resides
at_______________; that he/she is the ___________________ of The Chase Manhattan
Bank, a nationally chartered bank, the corporation described in and that
executed the foregoing instrument; and that he/she signed his/her name thereto
under authority of the board of directors of said corporation and on behalf of
such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
________________________________
NOTARY PUBLIC in and for said
County and State
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
____________________________
Name:
Address:
179
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATES
THIS CLASS A-1 CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO THE CERTIFICATE REGISTRAR FOR THE CERTIFICATES FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
A-1-1
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS A-1
Initial Pass-Through Rate: 6.955%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Certificate Scheduled Final Distribution Date:
Balance of the Class A-1 Certificates: June 15, 2008
$229,000,000
CUSIP: 74436JFA0 Initial Certificate Balance of this
Certificate: $200,000,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-1 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-2, Class A-EC1, Class A-EC2, 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
(together with the Class A-1 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income.
A-1-2
<PAGE>
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Prepayment Premiums, Yield Maintenance Charges and Excess Appraisal Reduction
Collections) then distributable to the Class A-1 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class A-1 Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class A-1
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class A-1 Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the aggregate
Certificate Balance or Notional Balance, as applicable, of which is at least
$25,000, or otherwise (b) by check mailed to such Certificateholder. The final
distribution on this Certificate shall be made in like manner upon presentation
and surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
A-1-3
<PAGE>
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any
A-1-4
<PAGE>
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein, (iii) to amend any provision thereof to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Regular Certificates by each Rating Agency, or (iv) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in the downgrading,
withdrawal or qualification of the rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in writing
and, which, as evidenced by an Opinion of Counsel at the expense of the party
(other than the Trustee, unless such amendment modifies or otherwise relates
solely to the obligations, duties or rights of the Trustee) requesting such
amendment, shall not adversely affect in any material respect the interests of
any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given
A-1-5
<PAGE>
to the Trustee and the Master Servicer, which notice the Trustee is required to
forward to Certificateholders in the manner set forth in the Pooling and
Servicing Agreement, to purchase all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund, and
thereby effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate
Scheduled Principal Balance of the Mortgage Loans remaining in the Trust Fund is
less than 1% of the aggregate Scheduled Principal Balance of the Mortgage Loans
as of the Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-1-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1
Certificate to be duly executed.
Dated: _____________________
THE CHASE MANHATTAN BANK, not in its individual
capacity but solely as Trustee
By:________________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class A-1 Certificate referred to in the Pooling
and Servicing Agreement.
Dated: _____________________
THE CHASE MANHATTAN BANK, not in its individual
capacity but solely as Authenticating Agent
By: ________________________________________
Authorized Officer
A-1-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto _______________________________________________________
____________________________(please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class A-1 Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1
Certificate of the entire Percentage Interest represented by the within Class
A-1 Certificates to the above-named Assignee(s) and to deliver such Class A-1
Certificate to the following address:
__________________________________________
__________________________________________
Date: _________________ ________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
A-1-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
_______ for the account of ___________________________________________________
account number ______________________ .
This information is provided by ___________________________ the Assignee(s)
named above, or ______________ as its (their) agent.
By: __________________________
______________________________
[Please print or type name(s)]
______________________________
Title
______________________________
Taxpayer Identification Number
A-1-9
<PAGE>
THIS CLASS A-1 CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO THE CERTIFICATE REGISTRAR FOR THE CERTIFICATES FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
A-1-1
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS A-1
Initial Pass-Through Rate: 6.955%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Certificate Scheduled Final Distribution Date:
Balance of the Class A-1 Certificates: June 15, 2008
$229,000,000
CUSIP: 74436JFA0 Initial Certificate Balance of this
Certificate: $29,000,000
No.: 2
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-1 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-2, Class A-EC1, Class A-EC2, 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
(together with the Class A-1 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income.
A-1-2
<PAGE>
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Prepayment Premiums, Yield Maintenance Charges and Excess Appraisal Reduction
Collections) then distributable to the Class A-1 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class A-1 Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class A-1
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class A-1 Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the aggregate
Certificate Balance or Notional Balance, as applicable, of which is at least
$25,000, or otherwise (b) by check mailed to such Certificateholder. The final
distribution on this Certificate shall be made in like manner upon presentation
and surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
A-1-3
<PAGE>
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any
A-1-4
<PAGE>
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein, (iii) to amend any provision thereof to the extent necessary
or desirable to maintain the rating or ratings assigned to each of the Classes
of Regular Certificates by each Rating Agency, or (iv) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in the downgrading,
withdrawal or qualification of the rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in writing
and, which, as evidenced by an Opinion of Counsel at the expense of the party
(other than the Trustee, unless such amendment modifies or otherwise relates
solely to the obligations, duties or rights of the Trustee) requesting such
amendment, shall not adversely affect in any material respect the interests of
any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given
A-1-5
<PAGE>
to the Trustee and the Master Servicer, which notice the Trustee is required to
forward to Certificateholders in the manner set forth in the Pooling and
Servicing Agreement, to purchase all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund, and
thereby effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate
Scheduled Principal Balance of the Mortgage Loans remaining in the Trust Fund is
less than 1% of the aggregate Scheduled Principal Balance of the Mortgage Loans
as of the Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-1-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1
Certificate to be duly executed.
Dated: _____________________
THE CHASE MANHATTAN BANK, not in its individual
capacity but solely as Trustee
By:________________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class A-1 Certificate referred to in the Pooling
and Servicing Agreement.
Dated: _____________________
THE CHASE MANHATTAN BANK, not in its individual
capacity but solely as Authenticating Agent
By: ________________________________________
Authorized Officer
A-1-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto _________________________________________________________
__________________________ (please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class A-1 Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1
Certificate of the entire Percentage Interest represented by the within Class
A-1 Certificates to the above-named Assignee(s) and to deliver such Class A-1
Certificate to the following address:
_____________________________________
_____________________________________
Date: _________________________ ________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
A-1-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
______________________________________ for the account of ____________________
_________________________ account number ________________________________.
This information is provided by _____________________________ the Assignee(s)
named above, or ______________________________ as its (their) agent.
By: _______________________________
___________________________________
[Please print or type name(s)]
___________________________________
Title
___________________________________
Taxpayer Identification Number
A-1-9
<PAGE>
THIS CLASS A-2 CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS
AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO THE CERTIFICATE REGISTRAR FOR THE CERTIFICATES FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
A-2-1
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS A-2
Initial Pass-Through Rate: 7.193%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Certificate Scheduled Final Distribution Date:
Balance of the Class A-2 Certificates: April 15, 2009
$396,880,000
CUSIP: 74436JFB8 Initial Certificate Balance of this
Certificate: $200,000,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-2 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-EC1, Class A-EC2, 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
(together with the Class A-2 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-2-2
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Prepayment Premiums, Yield Maintenance Charges and Excess Appraisal Reduction
Collections) then distributable to the Class A-2 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class A-2 Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class A-2
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class A-2 Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
A-2-3
<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
A-2-4
<PAGE>
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided,
A-2-5
<PAGE>
however, that such action, as evidenced by an opinion of counsel, is necessary
or helpful to maintain such qualification or to prevent the imposition of any
such taxes, and would not adversely affect in any material respect the interest
of any Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-2-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-2
Certificate to be duly executed.
Dated: ___________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: _______________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class A-2 Certificate referred to in the Pooling
and Servicing Agreement.
Dated: ___________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _______________________________________
Authorized Officer
A-2-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto _______________________________________________________
_____________________________________________________________________________
_________________________________ (please print or typewrite name(s) and
address(es), including postal zip code(s) of assignee(s)) ("Assignee(s)")
the entire Percentage Interest represented by the within Class A-2 Certificate
and hereby authorize(s) the registration of transfer of such interest to
Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-2
Certificate of the entire Percentage Interest represented by the within Class
A-2 Certificates to the above-named Assignee(s) and to deliver such Class A-2
Certificate to the following address:
_____________________________________________
_____________________________________________
Date: _____________________________ _____________________________________
Signature by or on behalf of Assignor(s)
_____________________________________
Taxpayer Identification Number
A-2-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ______________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
_____________________________________________________________________________
__________________________________________________________ for the account of
____________________________________________________________ account number
________________________.
This information is provided by _______________________________ the Assignee(s)
named above, or ___________________________________ as its (their) agent.
By: __________________________________
______________________________________
[Please print or type name(s)]
______________________________________
Title
_____________________________________
Taxpayer Identification Number
A-2-9
<PAGE>
THIS CLASS A-2 CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS
AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO THE CERTIFICATE REGISTRAR FOR THE CERTIFICATES FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
A-2-1
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS A-2
Initial Pass-Through Rate: 7.193%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Certificate Scheduled Final Distribution Date:
Balance of the Class A-2 Certificates: April 15, 2009
$396,880,000
CUSIP: 74436JFB8 Initial Certificate Balance of this
Certificate: $196,880,000
No.: 2
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-2 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-EC1, Class A-EC2, 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
(together with the Class A-2 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-2-2
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Prepayment Premiums, Yield Maintenance Charges and Excess Appraisal Reduction
Collections) then distributable to the Class A-2 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class A-2 Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class A-2
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class A-2 Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
A-2-3
<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
A-2-4
<PAGE>
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided,
A-2-5
<PAGE>
however, that such action, as evidenced by an opinion of counsel, is necessary
or helpful to maintain such qualification or to prevent the imposition of any
such taxes, and would not adversely affect in any material respect the interest
of any Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-2-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-2
Certificate to be duly executed.
Dated: ___________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: __________________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class A-2 Certificate referred to in the Pooling
and Servicing Agreement.
Dated: ___________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Authenticating Agent
By: ___________________________________________
Authorized Officer
A-2-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
_____________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class A-2 Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-2
Certificate of the entire Percentage Interest represented by the within Class
A-2 Certificates to the above-named Assignee(s) and to deliver such Class A-2
Certificate to the following address:
_______________________________________________
_______________________________________________
Date: ________________________ _____________________________________________
Signature by or on behalf of Assignor(s)
_____________________________________________
Taxpayer Identification Number
A-2-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
_____________________________________________________________________________
________________________ for the account of ________________________________
__________________ account number ______________________________________.
This information is provided by ________________________ the Assignee(s) named
above, or _________________________ as its (their) agent.
By: ____________________________________
________________________________________
[Please print or type name(s)]
________________________________________
Title
________________________________________
Taxpayer Identification Number
A-2-9
<PAGE>
THIS CLASS A-EC1 CERTIFICATE DOES NOT REPRESENT AN OBLIGATION
OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS IN RESPECT OF THE CERTIFICATE BALANCES OF
OTHER CLASSES OF CERTIFICATES WHICH ARE THE BASIS FOR THE CLASS A-EC1 NOTIONAL
BALANCE ARE PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CLASS A-EC1 NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE
LESS THAN THE INITIAL CLASS A-EC1 NOTIONAL BALANCE SET FORTH BELOW.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO THE CERTIFICATE REGISTRAR FOR THE CERTIFICATES FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
THE CLASS A-EC1 CERTIFICATES ARE INTEREST ONLY CERTIFICATES
AND WILL BE ENTITLED ONLY TO DISTRIBUTIONS OF INTEREST ACCRUED ON THE CLASS
A-EC1 NOTIONAL BALANCE AT THE APPLICABLE PASS-THROUGH RATE, AND CERTAIN
PREPAYMENT PREMIUMS AND YIELD MAINTENANCE CHARGES AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
A-3-1
<PAGE>
"1933 ACT"), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY
PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT
AND OTHER APPLICABLE LAWS AND ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE 1933
ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB")
PURCHASING FOR ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF A QIB,
WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (2) TO AN INSTITUTION
THAT IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND
OF NO EFFECT.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THIS CERTIFICATE IS ISSUED ON JULY 22, 1999. BASED ON ITS
ISSUE PRICE OF __________% OF THE INITIAL CLASS A-EC1 NOTIONAL BALANCE,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ALL DISTRIBUTIONS OF INTEREST HEREON, THIS CERTIFICATE IS ISSUED WITH ORIGINAL
ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE
PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT
ASSUMPTION (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM DATED JULY 22, 1999
WITH RESPECT TO THE OFFERING OF THE CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL CLASS A-EC1
NOTIONAL BALANCE IS APPROXIMATELY _________%; (II) THE ANNUAL YIELD OF THIS
CERTIFICATE TO MATURITY, COMPOUNDED MONTHLY, IS APPROXIMATELY ________%; AND
(III) THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD (JULY, 1999) AS A
PERCENTAGE OF THE INITIAL CLASS A-EC1 NOTIONAL BALANCE, CALCULATED USING THE
METHOD PRESCRIBED
A-3-2
<PAGE>
IN SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID REGULATIONS (AS
DEFINED IN THE PROSPECTUS DATED__________ __, 1999), IS APPROXIMATELY ______%.
A-3-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS A-EC1
Initial Pass-Through Rate: 0.518%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Class A-EC1 Notional Scheduled Final Distribution Date:
Balance: N/A
$869,289,765
CUSIP: 74436JFH5 Initial Percentage Interest Evidenced
Hereby:
[50%] ($869,289,765)
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-EC1 Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of commercial Mortgage Loans
secured by commercial and multifamily properties and held in trust by the
Trustee and serviced by the Master Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement dated as of July 1, 1999 (the "Pooling and Servicing Agreement"), by
and among Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC2, 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 (together
with the Class A-EC1 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with
A-3-4
<PAGE>
the treatment of, this Certificate in accordance with the preceding sentence for
purposes of federal income taxes, state and local income and franchise taxes and
other taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any interest and any Prepayment
Premiums, Yield Maintenance Charges or Excess Appraisal Reduction Collections
then distributable to the Class A-EC1 Certificates for such Distribution Date,
all as more fully described in the Pooling and Servicing Agreement. This
Certificate is limited in right of payment to, among other things, certain
collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class A-EC1 Certificates during
each Interest Accrual Period (as defined below) at a rate equal to the Class
A-EC1 Pass-Through Rate on the outstanding Class A-EC1 Notional Balance. All
calculations of interest on the Class A-EC1 Certificates will be made on the
basis of a 360-day year consisting of twelve 30-day months. The "Interest
Accrual Period" with respect to any Distribution Date is the calendar month
preceding the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business
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<PAGE>
Days prior to the related Record Date and is the registered owner of
Certificates the aggregate Certificate Balance or Notional Balance, as
applicable, of which is at least $25,000, or otherwise (b) by check mailed to
such Certificateholder. The final distribution on this Certificate shall be made
in like manner upon presentation and surrender of this Certificate at the
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding Notional
balance of the same Class in authorized denominations will be executed by the
Trustee or the Authenticating Agent and authenticated by the Authenticating
Agent and delivered by the Certificate Registrar to the designated transferee or
transferees.
The Class A-EC1 Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an institutional investor that the Initial
Investor reasonably believes is a QIB purchasing for its own account or a person
purchasing for the account of a QIB, whom
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<PAGE>
the Initial Investor has informed, in each case, that the reoffer, resale,
pledge or other transfer is being made in reliance on Rule 144A, (B) to certain
institutional "accredited investors" within the meaning of Rule
501(a)(1),(2),(3) or (7) of Regulation D under the Securities Act or (C)
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and applicable state securities
laws.
Each prospective transferee of a Class A-EC1 Certificate will
be required to deliver to the Depositor, the Certificate Registrar and the
Trustee a transferee representation letter, substantially in the form set forth
in the Pooling and Servicing Agreement referred to herein, affirming facts
substantiating that the foregoing transfer restrictions have been satisfied. Any
transfer failing to meet the requirements as set forth above shall be void and
of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in
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<PAGE>
any manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall: (i) reduce in any manner the
amount of, or delay the timing of, payments received on Mortgage Loans which are
required to be distributed on any Certificate without the consent of each
affected Certificateholder; (ii) change the percentages of Voting Rights of
Holders of Certificates which are required to consent to any action or inaction
under the Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates then outstanding; or (ii) alter the servicing standard set
forth in the Pooling and Servicing Agreement or the obligations of the Master
Servicer or the Trustee to make a P&I Advance or Property Advance without the
consent of the Holders of all Certificates representing all of the Voting Rights
of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii)
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<PAGE>
the sale of assets of the Trust Fund after the Certificate Balances and Notional
Balances of all the Certificates (other than the Class R-I, Class R-II and Class
R-III Certificates) have been reduced to zero under circumstances set forth in
the Pooling and Servicing Agreement. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the Court of St. James'
living on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
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<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-EC1
Certificate to be duly executed.
Dated: ___________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: _____________________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class A-EC1 Certificate referred to in the Pooling
and Servicing Agreement.
Dated: ___________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: _________________________________________________
Authorized Officer
A-3-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
_____________________________________________________________________________
__________________________ (please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class A-EC1 Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-EC1
Certificate of the entire Percentage Interest represented by the within Class
A-EC1 Certificates to the above-named Assignee(s) and to deliver such Class
A-EC1 Certificate to the following address:
_____________________________________________
_____________________________________________
Date: ____________________________ ___________________________________________
Signature by or on behalf of Assignor(s)
___________________________________________
Taxpayer Identification Number
A-3-11
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
________________________ for the account of __________________________________
______________________ account number ______________________________________.
This information is provided by ________________________ the Assignee(s) named
above, or _________________________________ as its (their) agent.
By: ____________________________________
________________________________________
[Please print or type name(s)]
_______________________________________
Title
_______________________________________
Taxpayer Identification Number
A-3-12
<PAGE>
THIS CLASS A-EC2 CERTIFICATE DOES NOT REPRESENT AN OBLIGATION
OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS IN RESPECT OF THE CERTIFICATE BALANCES OF
OTHER CLASSES OF CERTIFICATES WHICH ARE THE BASIS FOR THE CLASS A-EC2 NOTIONAL
BALANCE ARE PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CLASS A-EC2 NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE
LESS THAN THE INITIAL CLASS A-EC2 NOTIONAL BALANCE SET FORTH BELOW.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO THE CERTIFICATE REGISTRAR FOR THE CERTIFICATES FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
THE CLASS A-EC2 CERTIFICATES ARE INTEREST ONLY CERTIFICATES
AND WILL BE ENTITLED ONLY TO DISTRIBUTIONS OF INTEREST ACCRUED ON THE CLASS
A-EC2 NOTIONAL BALANCE AT THE APPLICABLE PASS-THROUGH RATE, AND CERTAIN
PREPAYMENT PREMIUMS AND YIELD MAINTENANCE CHARGES AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
A-4-1
<PAGE>
"1933 ACT"), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY
PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT
AND OTHER APPLICABLE LAWS AND ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE 1933
ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB")
PURCHASING FOR ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF A QIB,
WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (2) TO AN INSTITUTION
THAT IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND
OF NO EFFECT.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THIS CERTIFICATE IS ISSUED ON JULY 22, 1999. BASED ON ITS
ISSUE PRICE OF __________% OF THE INITIAL CLASS A-EC2 NOTIONAL BALANCE,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ALL DISTRIBUTIONS OF INTEREST HEREON, THIS CERTIFICATE IS ISSUED WITH ORIGINAL
ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE
PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT
ASSUMPTION (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM DATED JULY __, 1999
WITH RESPECT TO THE OFFERING OF THE CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL CLASS A-EC2
NOTIONAL BALANCE IS APPROXIMATELY _________%; (II) THE ANNUAL YIELD OF THIS
CERTIFICATE TO MATURITY, COMPOUNDED MONTHLY, IS APPROXIMATELY ________%; AND
(III) THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD (JULY, 1999) AS A
PERCENTAGE OF THE INITIAL CLASS A-EC2 NOTIONAL BALANCE, CALCULATED USING THE
METHOD PRESCRIBED
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<PAGE>
IN SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE
PROSPECTUS DATED__________ __, 1999), IS APPROXIMATELY ______%.
A-4-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS A-EC2
Initial Pass-Through Rate: 0.550%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Class A-EC2 Notional Scheduled Final Distribution Date:
Balance: N/A
$97,798,765
CUSIP: 74436JFU6 Initial Percentage Interest Evidenced
Hereby:
[50%] ($97,798,765)
No.: __
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-EC2 Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of commercial Mortgage Loans
secured by commercial and multifamily properties and held in trust by the
Trustee and serviced by the Master Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement dated as of July 1, 1999 (the "Pooling and Servicing Agreement"), by
and among Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, 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 (together
with the Class A-EC2 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-4-4
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any interest and any Prepayment
Premiums, Yield Maintenance Charges or Excess Appraisal Reduction Collections
then distributable to the Class A-EC2 Certificates for such Distribution Date,
all as more fully described in the Pooling and Servicing Agreement. This
Certificate is limited in right of payment to, among other things, certain
collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class A-EC2 Certificates during
each Interest Accrual Period (as defined below) at a rate equal to the Class
A-EC2 Pass-Through Rate on the outstanding Class A-EC2 Notional Balance. All
calculations of interest on the Class A-EC2 Certificates will be made on the
basis of a 360-day year consisting of twelve 30-day months. The "Interest
Accrual Period" with respect to any Distribution Date is the calendar month
preceding the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
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<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding Notional
balance of the same Class in authorized denominations will be executed by the
Trustee or the Authenticating Agent and authenticated by the Authenticating
Agent and delivered by the Certificate Registrar to the designated transferee or
transferees.
The Class A-EC2 Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an institutional investor that the Initial
Investor reasonably believes is a QIB purchasing for its own account or a person
purchasing for the account of a QIB, whom the Initial Investor has informed, in
each case, that the reoffer, resale, pledge or other
A-4-6
<PAGE>
transfer is being made in reliance on Rule 144A, (B) to certain institutional
"accredited investors" within the meaning of Rule 501(a)(1),(2),(3) or (7) of
Regulation D under the Securities Act or (C) pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the Securities
Act and applicable state securities laws.
Each prospective transferee of a Class A-EC2 Certificate will
be required to deliver to the Depositor, the Certificate Registrar and the
Trustee a transferee representation letter, substantially in the form set forth
in the Pooling and Servicing Agreement referred to herein, affirming facts
substantiating that the foregoing transfer restrictions have been satisfied. Any
transfer failing to meet the requirements as set forth above shall be void and
of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement
A-4-7
<PAGE>
or of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall: (i) reduce in any manner the amount of,
or delay the timing of, payments received on Mortgage Loans which are required
to be distributed on any Certificate without the consent of each affected
Certificateholder; (ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of all
Certificates then outstanding; or (ii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the obligations of the Master Servicer or
the Trustee to make a P&I Advance or Property Advance without the consent of the
Holders of all Certificates representing all of the Voting Rights of the Class
or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances
A-4-8
<PAGE>
of all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-4-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-EC2
Certificate to be duly executed.
Dated: ___________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: ____________________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class A-EC2 Certificate referred to in the Pooling
and Servicing Agreement.
Dated: ___________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: ____________________________________________
Authorized Officer
A-4-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
_____________________________________________________________________________
_____________________________________ (please print or typewrite name(s) and
address(es), including postal zip code(s) of assignee(s)) ("Assignee(s)") the
entire Percentage Interest represented by the within Class A-EC2 Certificate
and hereby authorize(s) the registration of transfer of such interest to
Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-EC2
Certificate of the entire Percentage Interest represented by the within Class
A-EC2 Certificates to the above-named Assignee(s) and to deliver such Class
A-EC2 Certificate to the following address:
____________________________________
____________________________________
Date: ______________________________ ________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
A-4-11
<PAGE>
THIS CLASS B CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO THE CERTIFICATE REGISTRAR FOR THE CERTIFICATES FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT PLAN ASSETS BY REASON OF A
BENEFIT PLAN'S INVESTMENT IN THE ENTITY. ANY TRANSFER FAILING TO MEET THE
REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND OF NO EFFECT.
A-5-1
<PAGE>
THE CLASS B CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
A-5-2
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS B
Initial Pass-Through Rate: 7.518%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Certificate Scheduled Final Distribution Date:
Balance of the Class B Certificates: April 15, 2009
$41,293,000
CUSIP:74436JFC6 Initial Certificate Balance of this
Certificate: $41,293,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class B Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
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
(together with the Class B Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-5-3
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class B
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class B Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class B
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class B Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
A-5-4
<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class B Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or
A-5-5
<PAGE>
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code ("Similar Law") (each, a "benefit plan"), or (b) an entity,
including an insurance company separate account or an insurance company general
account if the assets in any such accounts constitute "plan assets" for purposes
of Regulation Section 2510.3-101 of ERISA, whose underlying assets include
benefit plan assets by reason of a benefit plan's investment in the entity. Any
transfer failing to meet the requirements as set forth above shall be void and
of no effect.
If definitive Class B Certificates are issued, each
prospective transferee thereof will be required to deliver to the Depositor, the
Certificate Registrar and the Trustee a transferee representation letter,
substantially in the form set forth in the Pooling and Servicing Agreement
referred to herein, affirming facts substantiating that the foregoing transfer
restrictions have been satisfied. Any transfer failing to meet the requirements
as set forth above shall be void and of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less
A-5-6
<PAGE>
than 66-2/3% of the aggregate Voting Rights allocated to each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall: (i) reduce
in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of each affected Certificateholder; (ii) change the percentages of
Voting Rights of Holders of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing Agreement, without the
consent of the Holders of all Certificates then outstanding; or (ii) alter the
servicing standard set forth in the Pooling and Servicing Agreement or the
obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of
A-5-7
<PAGE>
foreclosure with respect to the Mortgage Loans and the remittance to the
Certificateholders of all funds due under the Pooling and Servicing Agreement;
or (iii) the sale of assets of the Trust Fund after the Certificate Balances and
Notional Balances of all the Certificates (other than the Class R-I, Class R-II
and Class R-III Certificates) have been reduced to zero under circumstances set
forth in the Pooling and Servicing Agreement. In no event, however, will the
trust created by the Pooling and Servicing Agreement continue beyond the
expiration of 21 years from the death of the last surviving descendant(s) of
Joseph P. Kennedy, the late ambassador of the United States to the Court of St.
James' living on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-5-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B
Certificate to be duly executed.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: ___________________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class B Certificate referred to in the Pooling and
Servicing Agreement.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: __________________________________________________
Authorized Officer
A-5-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto _________________________________________________________
______________________________________________________________________________
_____________________________________ (please print or typewrite name(s) and
address(es), including postal zip code(s) of assignee(s)) ("Assignee(s)") the
entire Percentage Interest represented by the within Class B Certificate and
hereby authorize(s) the registration of transfer of such interest to
Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B
Certificate of the entire Percentage Interest represented by the within Class B
Certificates to the above-named Assignee(s) and to deliver such Class B
Certificate to the following address:
______________________________
______________________________
Date: ___________________________ _____________________________________________
Signature by or on behalf of Assignor(s)
_____________________________________________
Taxpayer Identification Number
A-5-10
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
_______________________________________________________________________________
____________________________________ for the account of _______________________
____________________________ account number _____________________________.
This information is provided by ____________________ the Assignee(s) named
above, or as its (their) agent.
By: ___________________________________
_______________________________________
[Please print or type name(s)]
_______________________________________
Title
_______________________________________
Taxpayer Identification Number
A-5-11
<PAGE>
THIS CLASS C CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO THE CERTIFICATE REGISTRAR FOR THE CERTIFICATES FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT PLAN ASSETS BY REASON OF A
BENEFIT PLAN'S INVESTMENT IN THE ENTITY. ANY TRANSFER FAILING TO MEET THE
REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND OF NO EFFECT.
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<PAGE>
THE CLASS C CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
A-6-2
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS C
Initial Pass-Through Rate: 7.715%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Certificate Scheduled Final Distribution Date:
Balance of the Class C Certificates: May 15, 2009
$45,639,00
CUSIP 74436JFD4 Initial Certificate
Balance of this Certificate: $45,639,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class C Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
Class B, 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
(together with the Class C Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-6-3
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class C
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate
agrees to look solely to the assets of the Trust Fund as provided in the Pooling
and Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class C Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class C
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class C Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
A-6-4
<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class C Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or
A-6-5
<PAGE>
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code ("Similar Law") (each, a "benefit plan"), or (b) an entity,
including an insurance company separate account or an insurance company general
account if the assets in any such accounts constitute "plan assets" for purposes
of Regulation Section 2510.3-101 of ERISA, whose underlying assets include
benefit plan assets by reason of a benefit plan's investment in the entity.
If definitive Class C Certificates are issued, each
prospective transferee thereof will be required to deliver to the Depositor, the
Certificate Registrar and the Trustee a transferee representation letter,
substantially in the form set forth in the Pooling and Servicing Agreement
referred to herein, affirming facts substantiating that the foregoing transfer
restrictions have been satisfied. Any transfer failing to meet the requirements
as set forth above shall be void and of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates
A-6-6
<PAGE>
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall: (i) reduce
in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of each affected Certificateholder; (ii) change the percentages of
Voting Rights of Holders of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing Agreement, without the
consent of the Holders of all Certificates then outstanding; or (ii) alter the
servicing standard set forth in the Pooling and Servicing Agreement or the
obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the
A-6-7
<PAGE>
Certificateholders of all funds due under the Pooling and Servicing Agreement;
or (iii) the sale of assets of the Trust Fund after the Certificate Balances and
Notional Balances of all the Certificates (other than the Class R-I, Class R-II
and Class R-III Certificates) have been reduced to zero under circumstances set
forth in the Pooling and Servicing Agreement. In no event, however, will the
trust created by the Pooling and Servicing Agreement continue beyond the
expiration of 21 years from the death of the last surviving descendant(s) of
Joseph P. Kennedy, the late ambassador of the United States to the Court of St.
James' living on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-6-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class C
Certificate to be duly executed.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: ________________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class C Certificate referred to in the Pooling and
Servicing Agreement.
Dated: _____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Authenticating Agent
By: ________________________________________
Authorized Officer
A-6-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
_____________________________________________________________________________
__________________________(please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class C Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class C
Certificate of the entire Percentage Interest represented by the within Class C
Certificates to the above-named Assignee(s) and to deliver such Class C
Certificate to the following address:
____________________________________________
____________________________________________
Date: _____________________________ ___________________________________________
Signature by or on behalf of Assignor(s)
___________________________________________
Taxpayer Identification Number
A-6-10
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
________________________ for the account of __________________________________
____________________ account number ______________________________________.
This information is provided by ____________________ the Assignee(s) named
above, or _____________________________ as its (their) agent.
By: ______________________________
__________________________________
[Please print or type name(s)]
___________________________________
Title
___________________________________
Taxpayer Identification Number
A-6-11
<PAGE>
THIS CLASS D CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO THE CERTIFICATE REGISTRAR FOR THE CERTIFICATES FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT PLAN ASSETS BY REASON OF A
BENEFIT PLAN'S INVESTMENT IN THE ENTITY. ANY TRANSFER FAILING TO MEET THE
REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND OF NO EFFECT.
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<PAGE>
THE CLASS D CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
A-7-2
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS D
Initial Pass-Through Rate: 7.741%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Class Certificate Scheduled Final Distribution Date:
Balance of the Class D Certificates: June 15, 2009
$13,040,000
CUSIP: 74436UJFE2 Initial Certificate
Balance of this Certificate: $13,040,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class D Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
Class B, Class C, 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
(together with the Class D Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-7-3
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August , 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class D
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class D Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class D
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class D Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
A-7-4
<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class D Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or
A-7-5
<PAGE>
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code ("Similar Law") (each, a "benefit plan"), or (b) an entity,
including an insurance company separate account or an insurance company general
account if the assets in any such accounts constitute "plan assets" for purposes
of Regulation Section 2510.3-101 of ERISA, whose underlying assets include
benefit plan assets by reason of a benefit plan's investment in the entity.
If definitive Class D Certificates are issued, each
prospective transferee thereof will be required to deliver to the Depositor, the
Certificate Registrar and the Trustee a transferee representation letter,
substantially in the form set forth in the Pooling and Servicing Agreement
referred to herein, affirming facts substantiating that the foregoing transfer
restrictions have been satisfied. Any transfer failing to meet the requirements
as set forth above shall be void and of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates
A-7-6
<PAGE>
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall: (i) reduce
in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of each affected Certificateholder; (ii) change the percentages of
Voting Rights of Holders of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing Agreement, without the
consent of the Holders of all Certificates then outstanding; or (ii) alter the
servicing standard set forth in the Pooling and Servicing Agreement or the
obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the
A-7-7
<PAGE>
Certificateholders of all funds due under the Pooling and Servicing Agreement;
or (iii) the sale of assets of the Trust Fund after the Certificate Balances and
Notional Balances of all the Certificates (other than the Class R-I, Class R-II
and Class R-III Certificates) have been reduced to zero under circumstances set
forth in the Pooling and Servicing Agreement. In no event, however, will the
trust created by the Pooling and Servicing Agreement continue beyond the
expiration of 21 years from the death of the last surviving descendant(s) of
Joseph P. Kennedy, the late ambassador of the United States to the Court of St.
James' living on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-7-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class D
Certificate to be duly executed.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: ______________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class D Certificate referred to in the Pooling and
Servicing Agreement.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _____________________________________
Authorized Officer
A-7-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto _________________________________________________________
______________________________________________________________________________
__________________________ (please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class D Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class D
Certificate of the entire Percentage Interest represented by the within Class D
Certificates to the above-named Assignee(s) and to deliver such Class D
Certificate to the following address:
___________________________________________
___________________________________________
Date: _______________________ ________________________________________________
Signature by or on behalf of Assignor(s)
________________________________________________
Taxpayer Identification Number
A-7-10
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
_______________________________________________________________________________
___________________________________________ for the account of ________________
_______________________________ account number ___________________________.
This information is provided by _______________________________ the Assignee(s)
named above, or ___________________________ as its (their) agent.
By: ____________________________________
________________________________________
[Please print or type name(s)]
_________________________________________
Title
_________________________________________
Taxpayer Identification Number
A-7-11
<PAGE>
THIS CLASS E CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO THE CERTIFICATE REGISTRAR FOR THE CERTIFICATES FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT PLAN ASSETS BY REASON OF A
BENEFIT PLAN'S INVESTMENT IN THE ENTITY. ANY TRANSFER FAILING TO MEET THE
REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND OF NO EFFECT.
A-8-1
<PAGE>
THE CLASS E CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
A-8-2
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS E
Initial Pass-Through Rate: 7.741%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Class Certificate Scheduled Final Distribution Date:
Balance of the Class D Certificates: June 15, 2009
$30,426,000
CUSIP: 74436JFF9 Initial Certificate
Balance of this Certificate: $30,426,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class D Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
Class B, Class C, Class D, 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
(together with the Class D Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-8-3
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August , 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class E
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class E Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class E
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class E Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
A-8-4
<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class E Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or
A-8-5
<PAGE>
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code ("Similar Law") (each, a "benefit plan"), or (b) an entity,
including an insurance company separate account or an insurance company general
account if the assets in any such accounts constitute "plan assets" for purposes
of Regulation Section 2510.3-101 of ERISA, whose underlying assets include
benefit plan assets by reason of a benefit plan's investment in the entity.
If definitive Class E Certificates are issued, each
prospective transferee thereof will be required to deliver to the Depositor, the
Certificate Registrar and the Trustee a transferee representation letter,
substantially in the form set forth in the Pooling and Servicing Agreement
referred to herein, affirming facts substantiating that the foregoing transfer
restrictions have been satisfied. Any transfer failing to meet the requirements
as set forth above shall be void and of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates
A-8-6
<PAGE>
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall: (i) reduce
in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of each affected Certificateholder; (ii) change the percentages of
Voting Rights of Holders of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing Agreement, without the
consent of the Holders of all Certificates then outstanding; or (ii) alter the
servicing standard set forth in the Pooling and Servicing Agreement or the
obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the
A-8-7
<PAGE>
Certificateholders of all funds due under the Pooling and Servicing Agreement;
or (iii) the sale of assets of the Trust Fund after the Certificate Balances and
Notional Balances of all the Certificates (other than the Class R-I, Class R-II
and Class R-III Certificates) have been reduced to zero under circumstances set
forth in the Pooling and Servicing Agreement. In no event, however, will the
trust created by the Pooling and Servicing Agreement continue beyond the
expiration of 21 years from the death of the last surviving descendant(s) of
Joseph P. Kennedy, the late ambassador of the United States to the Court of St.
James' living on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-8-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class E
Certificate to be duly executed.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: _______________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class E Certificate referred to in the Pooling and
Servicing Agreement.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: ________________________________________
Authorized Officer
A-8-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
_____________________________________________________________________________
__________________________(please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class E Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class E
Certificate of the entire Percentage Interest represented by the within Class E
Certificates to the above-named Assignee(s) and to deliver such Class E
Certificate to the following address:
_________________________________________
_________________________________________
Date: ________________________________ ________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
A-8-10
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
______________________________________________________________________________
for the account of ____________________________________________________________
account number ______________________________________.
This information is provided by ____________________________ the Assignee(s)
named above, or ____________________________ as its (their) agent.
By: _____________________________
__________________________________
[Please print or type name(s)]
__________________________________
Title
__________________________________
Taxpayer Identification Number
A-8-11
<PAGE>
THIS CLASS F CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO THE CERTIFICATE REGISTRAR FOR THE CERTIFICATES FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT PLAN ASSETS BY REASON OF A
BENEFIT PLAN'S INVESTMENT IN THE ENTITY. ANY TRANSFER FAILING TO MEET THE
REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND OF NO EFFECT.
A-9-1
<PAGE>
THE CLASS F CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
A-9-2
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS F
Initial Pass-Through Rate: 7.741%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Class Certificate Scheduled Final Distribution Date:
Balance of the Class D Certificates: June 15, 2010
$15,213,000
CUSIP: 74436JFG7 Initial Certificate
Balance of this Certificate: $15,213,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class D Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
Class B, Class C, Class D, Class E, 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
(together with the Class D Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-9-3
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August , 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class F
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class F Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class F
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class F Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
A-9-4
<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class F Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or
A-9-5
<PAGE>
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code ("Similar Law") (each, a "benefit plan"), or (b) an entity,
including an insurance company separate account or an insurance company general
account if the assets in any such accounts constitute "plan assets" for purposes
of Regulation Section 2510.3-101 of ERISA, whose underlying assets include
benefit plan assets by reason of a benefit plan's investment in the entity.
If definitive Class F Certificates are issued, each
prospective transferee thereof will be required to deliver to the Depositor, the
Certificate Registrar and the Trustee a transferee representation letter,
substantially in the form set forth in the Pooling and Servicing Agreement
referred to herein, affirming facts substantiating that the foregoing transfer
restrictions have been satisfied. Any transfer failing to meet the requirements
as set forth above shall be void and of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates
A-9-6
<PAGE>
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall: (i) reduce
in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of each affected Certificateholder; (ii) change the percentages of
Voting Rights of Holders of Certificates which are required to consent to any
action or inaction under the Pooling and Servicing Agreement, without the
consent of the Holders of all Certificates then outstanding; or (ii) alter the
servicing standard set forth in the Pooling and Servicing Agreement or the
obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the
A-9-7
<PAGE>
Certificateholders of all funds due under the Pooling and Servicing Agreement;
or (iii) the sale of assets of the Trust Fund after the Certificate Balances and
Notional Balances of all the Certificates (other than the Class R-I, Class R-II
and Class R-III Certificates) have been reduced to zero under circumstances set
forth in the Pooling and Servicing Agreement. In no event, however, will the
trust created by the Pooling and Servicing Agreement continue beyond the
expiration of 21 years from the death of the last surviving descendant(s) of
Joseph P. Kennedy, the late ambassador of the United States to the Court of St.
James' living on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-9-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class F
Certificate to be duly executed.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: _______________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class F Certificate referred to in the Pooling and
Servicing Agreement.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: _________________________________________
Authorized Officer
A-9-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
_____________________________________________________________________________
__________________________(please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class F Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class F
Certificate of the entire Percentage Interest represented by the within Class F
Certificates to the above-named Assignee(s) and to deliver such Class F
Certificate to the following address:
______________________________________
______________________________________
Date: _________________________ _______________________________________________
Signature by or on behalf of Assignor(s)
_______________________________________________
Taxpayer Identification Number
A-9-10
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
account number ______________________________________.
This information is provided by ________________________ the Assignee(s) named
above, or ______________________________ as its (their) agent.
By: _____________________________________
_________________________________________
[Please print or type name(s)]
__________________________________________
Title
__________________________________________
Taxpayer Identification Number
A-9-11
<PAGE>
THIS CLASS G CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT
A-10-1
<PAGE>
PLAN ASSETS BY REASON OF A BENEFIT PLAN'S INVESTMENT IN THE ENTITY.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND
OF NO EFFECT.
THE CLASS G CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THIS CERTIFICATE IS ISSUED ON JULY 28, 1999. THE INITIAL PER
ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS _____%. BASED ON ITS ISSUE PRICE
OF ___________%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH
ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS
CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE
PREPAYMENT ASSUMPTION (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM DATED JULY
__, 1999 WITH RESPECT TO THE OFFERING OF THE CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY __________%; (II) THE ANNUAL YIELD
OF THIS CERTIFICATE TO MATURITY, COMPOUNDED MONTHLY, IS APPROXIMATELY ________%;
AND (III) THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD (JULY, 1999)
AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED
USING THE METHOD PRESCRIBED IN
A-10-2
<PAGE>
SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE
PROSPECTUS DATED ____________, 1999), IS APPROXIMATELY _______%.
A-10-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS G
Initial Pass-Through Rate: 6.755%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Certificate Scheduled Final Distribution Date:
Balance of the Class G Certificates: May 15, 2011
$15,213,000
CUSIP: 74436JFJ1 Initial Certificate
Balance of this Certificate: $15,213,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class G Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
Class B, Class C, Class D, Class E, Class F, 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
(together with the Class G Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-10-4
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class G
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class G Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class G
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class G Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
A-10-5
<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class G Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an institutional investor that the Initial
Investor reasonably believes is a QIB purchasing for its own account or a person
purchasing for the account of a QIB, whom the Initial Investor has
A-10-6
<PAGE>
informed, in each case, that the reoffer, resale, pledge or other transfer is
being made in reliance on Rule 144A, (B) to certain institutional "accredited
investors" within the meaning of Rule 501(a)(1),(2),(3) or (7) of Regulation D
under the Securities Act or (C) pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
and applicable state securities laws.
The Class G Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "benefit plan"), or (b) an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "plan assets" for purposes of Regulation Section
2510.3-101 of ERISA, whose underlying assets include benefit plan assets by
reason of a benefit plan's investment in the entity.
Each prospective transferee of a Class G Certificate will be
required to deliver to the Depositor, the Certificate Registrar and the Trustee
a transferee representation letter, substantially in the form set forth in the
Pooling and Servicing Agreement referred to herein, affirming facts
substantiating that the foregoing transfer restrictions have been satisfied. Any
transfer failing to meet the requirements as set forth above shall be void and
of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not
A-10-7
<PAGE>
result in the downgrading, withdrawal or qualification of the rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing and, which, as evidenced by an Opinion of Counsel at
the expense of the party (other than the Trustee, unless such amendment modifies
or otherwise relates solely to the obligations, duties or rights of the Trustee)
requesting such amendment, shall not adversely affect in any material respect
the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on
A-10-8
<PAGE>
any Distribution Date on which the aggregate Scheduled Principal Balance of the
Mortgage Loans remaining in the Trust Fund is less than 1% of the aggregate
Scheduled Principal Balance of the Mortgage Loans as of the Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-10-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class G
Certificate to be duly executed.
Dated: _____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: ______________________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class G Certificate referred to in the Pooling and
Servicing Agreement.
Dated: _____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: _____________________________________________
Authorized Officer
A-10-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
___________________________(please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class G Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class G
Certificate of the entire Percentage Interest represented by the within Class G
Certificates to the above-named Assignee(s) and to deliver such Class G
Certificate to the following address:
______________________________________
______________________________________
Date: ____________________________ ___________________________________________
Signature by or on behalf of Assignor(s)
__________________________________________
Taxpayer Identification Number
A-10-11
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
account number ______________________________________.
This information is provided by ________________________________the Assignee(s)
named above, or ____________________________ as its (their) agent.
By: _______________________________
___________________________________
[Please print or type name(s)]
___________________________________
Title
___________________________________
Taxpayer Identification Number
A-10-12
<PAGE>
THIS CLASS H CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT
A-11-1
<PAGE>
PLAN ASSETS BY REASON OF A BENEFIT PLAN'S INVESTMENT IN THE ENTITY.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND
OF NO EFFECT.
THE CLASS H CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THIS CERTIFICATE IS ISSUED ON JULY 28, 1999. THE INITIAL PER
ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS ________%. BASED ON ITS ISSUE
PRICE OF __________%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE
AT MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED
WITH ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS
CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE
PREPAYMENT ASSUMPTION (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM JULY __,
1999 WITH RESPECT TO THE OFFERING OF THE CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY __________%; (II) THE ANNUAL YIELD
OF THIS CERTIFICATE TO MATURITY, COMPOUNDED MONTHLY, IS APPROXIMATELY
_________%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD
(JULY, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN
A-11-2
<PAGE>
SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE
PROSPECTUS DATED ______________, 1999), IS APPROXIMATELY ________%.
A-11-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS H
Initial Pass-Through Rate: 6.755%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Certificate Scheduled Final Distribution Date:
Balance of the Class H Certificates: August 15, 2001
$19,559,000
CUSIP: 74436JFK8 Initial Certificate Balance of this
Certificate: $19,559,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class H Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
Class B, Class C, Class D, Class E, Class F, Class G, Class J, Class K, Class L,
Class M, Class N, Class O, Class R-I, Class R-II and Class R-III Certificates
(together with the Class H Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-11-4
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class H
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class H Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class H
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class H Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
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<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class H Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an institutional investor that the Initial
Investor reasonably believes is a QIB purchasing for its own account or a person
purchasing for the account of a QIB, whom the Initial Investor has
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<PAGE>
informed, in each case, that the reoffer, resale, pledge or other transfer is
being made in reliance on Rule 144A, (B) to certain institutional "accredited
investors" within the meaning of Rule 501(a)(1),(2),(3) or (7) of Regulation D
under the Securities Act or (C) pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
and applicable state securities laws.
The Class H Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "benefit plan"), or (b) an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "plan assets" for purposes of Regulation Section
2510.3-101 of ERISA, whose underlying assets include benefit plan assets by
reason of a benefit plan's investment in the entity.
Each prospective transferee of a Class H Certificate will be
required to deliver to the Depositor, the Certificate Registrar and the Trustee
a transferee representation letter, substantially in the form set forth in the
Pooling and Servicing Agreement referred to herein, affirming facts
substantiating that the foregoing transfer restrictions have been satisfied. Any
transfer failing to meet the requirements as set forth above shall be void and
of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not
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<PAGE>
result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on
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<PAGE>
any Distribution Date on which the aggregate Scheduled Principal Balance of the
Mortgage Loans remaining in the Trust Fund is less than 1% of the aggregate
Scheduled Principal Balance of the Mortgage Loans as of the Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-11-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class H
Certificate to be duly executed.
Dated: _______________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: __________________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class H Certificate referred to in the Pooling and
Servicing Agreement.
Dated: _______________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: ________________________________________
Authorized Officer
A-11-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto _________________________________________________________
___________________________(please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class H Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class H
Certificate of the entire Percentage Interest represented by the within Class H
Certificates to the above-named Assignee(s) and to deliver such Class H
Certificate to the following address:
_________________________________________
_________________________________________
Date: ______________________________ __________________________________________
Signature by or on behalf of Assignor(s)
_________________________________________
Taxpayer Identification Number
A-11-11
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
_______________________________________________________________________________
for the account of ____________________________________________________________
account number ______________________________________.
This information is provided by _______________________________ the Assignee(s)
named above, or __________________________________ as its (their) agent.
By: ____________________________
________________________________
[Please print or type name(s)]
________________________________
Title
________________________________
Taxpayer Identification Number
A-11-12
<PAGE>
THIS CLASS J CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT
A-12-1
<PAGE>
PLAN ASSETS BY REASON OF A BENEFIT PLAN'S INVESTMENT IN THE ENTITY.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND
OF NO EFFECT.
THE CLASS J CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THIS CERTIFICATE IS ISSUED ON JULY 28, 1999. THE INITIAL PER
ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS _______%. BASED ON ITS ISSUE PRICE
OF _____________%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH
ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS
CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE
PREPAYMENT ASSUMPTION (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM DATED JULY
__, 1999 WITH RESPECT TO THE OFFERING OF THE CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY _________%; (II) THE ANNUAL YIELD
OF THIS CERTIFICATE TO MATURITY, COMPOUNDED MONTHLY, IS APPROXIMATELY
__________%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD
(JULY, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN
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<PAGE>
SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE
PROSPECTUS DATED ____________, 1999), IS APPROXIMATELY ________%.
A-12-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS J
Initial Pass-Through Rate: 6.755%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Certificate Scheduled Final Distribution Date:
Balance of the Class J Certificates: August 15, 2011
$6,520,000
CUSIP: 74436JFL6 Initial Certificate Balance of this
Certificate: $6,520,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class J Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class K, Class L,
Class M, Class N, Class O, Class R-I, Class R-II and Class R-III Certificates
(together with the Class J Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-12-4
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class J
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class J Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class J
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class J Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
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<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class J Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an institutional investor that the Initial
Investor reasonably believes is a QIB purchasing for its own account or a person
purchasing for the account of a QIB, whom the Initial Investor has
A-12-6
<PAGE>
informed, in each case, that the reoffer, resale, pledge or other transfer is
being made in reliance on Rule 144A, (B) to certain institutional "accredited
investors" within the meaning of Rule 501(a)(1),(2),(3) or (7) of Regulation D
under the Securities Act or (C) pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
and applicable state securities laws.
The Class J Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "benefit plan"), or (b) an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "plan assets" for purposes of Regulation Section
2510.3-101 of ERISA, whose underlying assets include benefit plan assets by
reason of a benefit plan's investment in the entity.
Each prospective transferee of a Class J Certificate will be
required to deliver to the Depositor, the Certificate Registrar and the Trustee
a transferee representation letter, substantially in the form set forth in the
Pooling and Servicing Agreement referred to herein, affirming facts
substantiating that the foregoing transfer restrictions have been satisfied. Any
transfer failing to meet the requirements as set forth above shall be void and
of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not
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<PAGE>
result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on
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<PAGE>
any Distribution Date on which the aggregate Scheduled Principal Balance of the
Mortgage Loans remaining in the Trust Fund is less than 1% of the aggregate
Scheduled Principal Balance of the Mortgage Loans as of the Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-12-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class J
Certificate to be duly executed.
Dated: ______________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: ______________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class J Certificate referred to in the Pooling and
Servicing Agreement.
Dated: ______________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: ______________________________________
Authorized Officer
A-12-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
___________________________(please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class J Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class J
Certificate of the entire Percentage Interest represented by the within Class J
Certificates to the above-named Assignee(s) and to deliver such Class J
Certificate to the following address:
_________________________________________________
_________________________________________________
Date: __________________________ _____________________________________________
Signature by or on behalf of Assignor(s)
_____________________________________________
Taxpayer Identification Number
A-12-11
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
account number ____________________________________.
This information is provided by _______________________________ the Assignee(s)
named above, or _________________________ as its (their) agent.
By: _____________________________
_________________________________
[Please print or type name(s)]
_________________________________
Title
_________________________________
Taxpayer Identification Number
A-12-12
<PAGE>
THIS CLASS K CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT
A-13-1
<PAGE>
PLAN ASSETS BY REASON OF A BENEFIT PLAN'S INVESTMENT IN THE ENTITY.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND
OF NO EFFECT.
THE CLASS K CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THIS CERTIFICATE IS ISSUED ON JULY 28, 1999. THE INITIAL PER
ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS ______%. BASED ON ITS ISSUE PRICE
OF ___________%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH
ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS
CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE
PREPAYMENT ASSUMPTION (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM DATED JULY
__, 1999 WITH RESPECT TO THE OFFERING OF THE CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY ___________%; (II) THE ANNUAL YIELD
OF THIS CERTIFICATE TO MATURITY, COMPOUNDED MONTHLY, IS APPROXIMATELY
_________%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD
(JULY, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN
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<PAGE>
SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE
PROSPECTUS DATED ______________, 1999), IS APPROXIMATELY ______%.
A-13-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS K
Initial Pass-Through Rate: 6.755%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Certificate Scheduled Final Distribution Date:
Balance of the Class K Certificates: June 15, 2013
$6,520,000
CUSIP: 74436JFM4 Initial Certificate Balance of this
Certificate: $6,520,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class K Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class L,
Class M, Class N, Class O, Class R-I, Class R-II and Class R-III Certificates
(together with the Class K Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-13-4
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class K
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
Interest will accrue on the Class K Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class K
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class K Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
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<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class K Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an institutional investor that the Initial
Investor reasonably believes is a QIB purchasing for its own account or a person
purchasing for the account of a QIB, whom the Initial Investor has
A-13-6
<PAGE>
informed, in each case, that the reoffer, resale, pledge or other transfer is
being made in reliance on Rule 144A, (B) to certain institutional "accredited
investors" within the meaning of Rule 501(a)(1),(2),(3) or (7) of Regulation D
under the Securities Act or (C) pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
and applicable state securities laws.
The Class K Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "benefit plan"), or (b) an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "plan assets" for purposes of Regulation Section
2510.3-101 of ERISA, whose underlying assets include benefit plan assets by
reason of a benefit plan's investment in the entity.
Each prospective transferee of a Class K Certificate will be
required to deliver to the Depositor, the Certificate Registrar and the Trustee
a transferee representation letter, substantially in the form set forth in the
Pooling and Servicing Agreement referred to herein, affirming facts
substantiating that the foregoing transfer restrictions have been satisfied. Any
transfer failing to meet the requirements as set forth above shall be void and
of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not
A-13-7
<PAGE>
result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on
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<PAGE>
any Distribution Date on which the aggregate Scheduled Principal Balance of the
Mortgage Loans remaining in the Trust Fund is less than 1% of the aggregate
Scheduled Principal Balance of the Mortgage Loans as of the Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
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<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class K
Certificate to be duly executed.
Dated: ______________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: ______________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class K Certificate referred to in the Pooling and
Servicing Agreement.
Dated: ______________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: ________________________________
Authorized Officer
A-13-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
___________________________(please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class K Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class K
Certificate of the entire Percentage Interest represented by the within Class K
Certificates to the above-named Assignee(s) and to deliver such Class K
Certificate to the following address:
___________________________________________
___________________________________________
Date: ____________________ ___________________________________________________
Signature by or on behalf of Assignor(s)
___________________________________________________
Taxpayer Identification Number
A-13-11
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
account number ______________________________________________________.
This information is provided by ________________________________the Assignee(s)
named above, or _______________________ as its (their) agent.
By: _______________________________
___________________________________
[Please print or type name(s)]
___________________________________
Title
___________________________________
Taxpayer Identification Number
A-13-12
<PAGE>
THIS CLASS L CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT
A-14-1
<PAGE>
PLAN ASSETS BY REASON OF A BENEFIT PLAN'S INVESTMENT IN THE ENTITY.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND
OF NO EFFECT.
THE CLASS L CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THIS CERTIFICATE IS ISSUED ON JULY 28, 1999. THE INITIAL PER
ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS _______%. BASED ON ITS ISSUE PRICE
OF ___________%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH
ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS
CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE
PREPAYMENT ASSUMPTION (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM DATED JULY
__, 1999 WITH RESPECT TO THE OFFERING OF THE CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY ____________%; (II) THE ANNUAL
YIELD OF THIS CERTIFICATE TO MATURITY, COMPOUNDED MONTHLY, IS APPROXIMATELY
________%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD
(JULY, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J),
EXAMPLE 3 OF THE OID
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<PAGE>
REGULATIONS (AS DEFINED IN THE PROSPECTUS DATED ___________, 1999), IS
APPROXIMATELY ________%.
A-14-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS L
Initial Pass-Through Rate: 6.755%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Certificate Scheduled Final Distribution Date:
Balance of the Class L Certificates: April 15, 2014
$17,386,000
CUSIP: 74436JFN2 Initial Certificate Balance of this
Certificate: $17,3866,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class L Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class M, Class N, Class O, Class R-I, Class R-II and Class R-III Certificates
(together with the Class L Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes
A-14-4
<PAGE>
of federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class L
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling Servicing Agreement.
Interest will accrue on the Class L Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class L
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class L Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the
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<PAGE>
aggregate Certificate Balance or Notional Balance, as applicable, of which is at
least $25,000, or otherwise (b) by check mailed to such Certificateholder. The
final distribution on this Certificate shall be made in like manner upon
presentation and surrender of this Certificate at the location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class L Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an institutional investor that the Initial
Investor reasonably believes is a QIB purchasing for its own account or a person
purchasing for the account of a QIB, whom the Initial Investor has
A-14-6
<PAGE>
informed, in each case, that the reoffer, resale, pledge or other transfer is
being made in reliance on Rule 144A, (B) to certain institutional "accredited
investors" within the meaning of Rule 501(a)(1),(2),(3) or (7) of Regulation D
under the Securities Act or (C) pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
and applicable state securities laws.
The Class L Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "benefit plan"), or (b) an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "plan assets" for purposes of Regulation Section
2510.3-101 of ERISA, whose underlying assets include benefit plan assets by
reason of a benefit plan's investment in the entity.
Each prospective transferee of a Class L Certificate will be
required to deliver to the Depositor, the Certificate Registrar and the Trustee
a transferee representation letter, substantially in the form set forth in the
Pooling and Servicing Agreement referred to herein, affirming facts
substantiating that the foregoing transfer restrictions have been satisfied. Any
transfer failing to meet the requirements as set forth above shall be void and
of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not
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<PAGE>
result in the downgrading, withdrawal or qualification of the rating or ratings
then assigned to any outstanding Class of Certificates, as confirmed by each
Rating Agency in writing and, which, as evidenced by an Opinion of Counsel at
the expense of the party (other than the Trustee, unless such amendment modifies
or otherwise relates solely to the obligations, duties or rights of the Trustee)
requesting such amendment, shall not adversely affect in any material respect
the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on
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<PAGE>
any Distribution Date on which the aggregate Scheduled Principal Balance of the
Mortgage Loans remaining in the Trust Fund is less than 1% of the aggregate
Scheduled Principal Balance of the Mortgage Loans as of the Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
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<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class L
Certificate to be duly executed.
Dated: ___________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: _______________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class L Certificate referred to in the Pooling and
Servicing Agreement.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: _______________________________________
Authorized Officer
A-14-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto _________________________________________________________
____________________________________(please print or typewrite name(s) and
address(es), including postal zip code(s) of assignee(s)) ("Assignee(s)") the
entire Percentage Interest represented by the within Class L Certificate and
hereby authorize(s) the registration of transfer of such interest to
Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class L
Certificate of the entire Percentage Interest represented by the within Class L
Certificates to the above-named Assignee(s) and to deliver such Class L
Certificate to the following address:
_____________________________________
_____________________________________
Date: ________________________ ________________________________________________
Signature by or on behalf of Assignor(s)
________________________________________________
Taxpayer Identification Number
A-14-11
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
_____________________________________________________________________________
_____________________________________________________________________________
for the account of __________________________________________________________
account number ____________________________.
This information is provided by _______________________________ the Assignee(s)
named above, or ________________________________ as its (their) agent.
By: ____________________________
________________________________
[Please print or type name(s)]
________________________________
Title
________________________________
Taxpayer Identification Number
A-14-12
<PAGE>
THIS CLASS M CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE
A-15-1
<PAGE>
BENEFIT PLAN ASSETS BY REASON OF A BENEFIT PLAN'S INVESTMENT IN THE ENTITY.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND
OF NO EFFECT.
THE CLASS M CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THIS CERTIFICATE IS ISSUED ON JULY 28, 1999. THE INITIAL PER
ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS _______%. BASED ON ITS ISSUE PRICE
OF ____________%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH
ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS
CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE
PREPAYMENT ASSUMPTION (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM JULY __,
1999 WITH RESPECT TO THE OFFERING OF THE CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY ___________%; (II) THE ANNUAL YIELD
OF THIS CERTIFICATE TO MATURITY, COMPOUNDED MONTHLY, IS APPROXIMATELY
_________%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD
(JULY, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN
A-15-2
<PAGE>
SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE
PROSPECTUS DATED_____________, 1999), IS APPROXIMATELY _______%.
A-15-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS M
Initial Pass-Through Rate: 6.755%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Class Certificate Scheduled Final Distribution Date:
Balance of the Class M Certificates: May 15, 2015
$4,347,000
CUSIP: 74436JFP7 Initial Class Certificate Balance of this
Certificate: $4,347,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class M Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class N, Class O, Class R-I, Class R-II and Class R-III Certificates
(together with the Class M Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with
A-15-4
<PAGE>
the treatment of, this Certificate in accordance with the preceding sentence for
purposes of federal income taxes, state and local income and franchise taxes and
other taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class M
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling Servicing Agreement.
Interest will accrue on the Class M Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class M
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class M Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business
A-15-5
<PAGE>
Days prior to the related Record Date and is the registered owner of
Certificates the aggregate Certificate Balance or Notional Balance, as
applicable, of which is at least $25,000, or otherwise (b) by check mailed to
such Certificateholder. The final distribution on this Certificate shall be made
in like manner upon presentation and surrender of this Certificate at the
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class M Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an institutional investor that the Initial
Investor reasonably believes is a QIB purchasing for its
A-15-6
<PAGE>
own account or a person purchasing for the account of a QIB, whom the Initial
Investor has informed, in each case, that the reoffer, resale, pledge or other
transfer is being made in reliance on Rule 144A, (B) to certain institutional
"accredited investors" within the meaning of Rule 501(a)(1),(2),(3) or (7) of
Regulation D under the Securities Act or (C) pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the Securities
Act and applicable state securities laws.
The Class M Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "benefit plan"), or (b) an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "plan assets" for purposes of Regulation Section
2510.3-101 of ERISA, whose underlying assets include benefit plan assets by
reason of a benefit plan's investment in the entity.
Each prospective transferee of a Class M Certificate will be
required to deliver to the Depositor, the Certificate Registrar and the Trustee
a transferee representation letter, substantially in the form set forth in the
Pooling and Servicing Agreement referred to herein, affirming facts
substantiating that the foregoing transfer restrictions have been satisfied. Any
transfer failing to meet the requirements as set forth above shall be void and
of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
A-15-7
<PAGE>
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
A-15-8
<PAGE>
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-15-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class M
Certificate to be duly executed.
Dated: _____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: ______________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class M Certificate referred to in the Pooling and
Servicing Agreement.
Dated: ______________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: ________________________________
Authorized Officer
A-15-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto _________________________________________________________
___________________________(please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class M Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class M
Certificate of the entire Percentage Interest represented by the within Class M
Certificates to the above-named Assignee(s) and to deliver such Class M
Certificate to the following address:
_____________________________________
_____________________________________
Date: ___________________________ _____________________________________________
Signature by or on behalf of Assignor(s)
____________________________________________
Taxpayer Identification Number
A-15-11
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ______________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
account number _____________________.
This information is provided by _______________________________ the Assignee(s)
named above, or ________________________________ as its (their) agent.
By: _________________________________________
_____________________________________________
[Please print or type name(s)]
____________________________________________
Title
______________________________________________
Taxpayer Identification Number
A-15-12
<PAGE>
THIS CLASS N CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE
A-16-1
<PAGE>
BENEFIT PLAN ASSETS BY REASON OF A BENEFIT PLAN'S INVESTMENT IN THE ENTITY.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND
OF NO EFFECT.
THE CLASS N CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
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(A)(1) AND 860D OF THE CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THIS CERTIFICATE IS ISSUED ON JULY 28, 1999. THE INITIAL PER
ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS _______%. BASED ON ITS ISSUE PRICE
OF ____________%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH
ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS
CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE
PREPAYMENT ASSUMPTION (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM JULY __,
1999 WITH RESPECT TO THE OFFERING OF THE CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY ___________%; (II) THE ANNUAL YIELD
OF THIS CERTIFICATE TO MATURITY, COMPOUNDED MONTHLY, IS APPROXIMATELY
_________%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD
(JULY, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN
A-16-2
<PAGE>
SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE
PROSPECTUS DATED_____________, 1999), IS APPROXIMATELY _______%.
A-16-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS N
Initial Pass-Through Rate: 6.755%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Class Certificate Scheduled Final Distribution Date:
Balance of the Class M Certificates: May 15, 2017
$8,693,000
CUSIP: 74436JFQ5 Initial Class Certificate Balance of this
Certificate: $8,693,000
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class M Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class O, Class R-I, Class R-II and Class R-III Certificates
(together with the Class M Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and to
take no action inconsistent with
A-16-4
<PAGE>
the treatment of, this Certificate in accordance with the preceding sentence for
purposes of federal income taxes, state and local income and franchise taxes and
other taxes imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class N
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling Servicing Agreement.
Interest will accrue on the Class N Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class N
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class M Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business
A-16-5
<PAGE>
Days prior to the related Record Date and is the registered owner of
Certificates the aggregate Certificate Balance or Notional Balance, as
applicable, of which is at least $25,000, or otherwise (b) by check mailed to
such Certificateholder. The final distribution on this Certificate shall be made
in like manner upon presentation and surrender of this Certificate at the
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class N Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an institutional investor that the Initial
Investor reasonably believes is a QIB purchasing for its
A-16-6
<PAGE>
own account or a person purchasing for the account of a QIB, whom the Initial
Investor has informed, in each case, that the reoffer, resale, pledge or other
transfer is being made in reliance on Rule 144A, (B) to certain institutional
"accredited investors" within the meaning of Rule 501(a)(1),(2),(3) or (7) of
Regulation D under the Securities Act or (C) pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the Securities
Act and applicable state securities laws.
The Class N Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "benefit plan"), or (b) an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "plan assets" for purposes of Regulation Section
2510.3-101 of ERISA, whose underlying assets include benefit plan assets by
reason of a benefit plan's investment in the entity.
Each prospective transferee of a Class N Certificate will be
required to deliver to the Depositor, the Certificate Registrar and the Trustee
a transferee representation letter, substantially in the form set forth in the
Pooling and Servicing Agreement referred to herein, affirming facts
substantiating that the foregoing transfer restrictions have been satisfied. Any
transfer failing to meet the requirements as set forth above shall be void and
of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
A-16-7
<PAGE>
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
A-16-8
<PAGE>
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-16-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class N
Certificate to be duly executed.
Dated: _____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: _________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class N Certificate referred to in the Pooling and
Servicing Agreement.
Dated: ______________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: _________________________________
Authorized Officer
A-16-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto __________________________________________________________
_______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class N Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class N
Certificate of the entire Percentage Interest represented by the within Class N
Certificates to the above-named Assignee(s) and to deliver such Class N
Certificate to the following address:
___________________________________________
___________________________________________
Date: ___________________________ _____________________________________________
Signature by or on behalf of Assignor(s)
_____________________________________________
Taxpayer Identification Number
A-16-11
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
for the account of ____________________________________________________________
account number _______________________________.
This information is provided by _______________________________ the Assignee(s)
named above, or ________________________________ as its (their) agent.
By: ____________________________
_________________________________
[Please print or type name(s)]
_________________________________
Title
_________________________________
Taxpayer Identification Number
A-16-12
<PAGE>
THIS CLASS O CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE
A-17-1
<PAGE>
BENEFIT PLAN ASSETS BY REASON OF A BENEFIT PLAN'S INVESTMENT IN THE ENTITY.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND
OF NO EFFECT.
THE CLASS O CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS AN INVESTMENT UNIT COMPRISED OF (1) A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(A)(1) AND 860D OF THE CODE AND (2) A GRANTOR TRUST INTEREST
REPRESENTING BENEFICIAL OWNERSHIP OF THE RIGHTS TO EXCESS INTEREST AND DEFAULT
INTEREST, AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THIS CERTIFICATE IS ISSUED ON JULY 28, 1999. THE INITIAL PER
ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS _______%. BASED ON ITS ISSUE PRICE
OF ____________%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH
ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS
CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE
PREPAYMENT ASSUMPTION (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM JULY __,
1999 WITH RESPECT TO THE OFFERING OF THE CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY ___________%; (II) THE ANNUAL YIELD
OF THIS CERTIFICATE TO MATURITY, COMPOUNDED MONTHLY, IS
A-17-2
<PAGE>
APPROXIMATELY
_________%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD
(JULY, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J),
EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE PROSPECTUS
DATED_____________, 1999), IS APPROXIMATELY _______%.
A-17-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS O
Initial Pass-Through Rate: 6.755%
First Distribution Date: Cut-off Date: July 1, 1999
August 17, 1999
Aggregate Initial Class Certificate Scheduled Final Distribution Date:
Balance of the Class M Certificates: September 15, 2023
$19,560,765
CUSIP: 74436JFR3 Initial Class Certificate Balance of this
Certificate: $19,560,765
No.: 1
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class M Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of commercial Mortgage Loans secured
by commercial and multifamily properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling and Servicing Agreement dated
as of July 1, 1999 (the "Pooling and Servicing Agreement"), by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. This
Certificate does not purport to summarize the Pooling and Servicing Agreement,
and reference is made to the Pooling and Servicing Agreement for the interests,
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
The Holder of this Certificate, by virtue of the acceptance
hereof, assents to the terms, provisions and conditions of the Pooling and
Servicing Agreement and is bound thereby. Also issued under the Pooling and
Servicing Agreement are the Class A-1, Class A-2, Class A-EC1, Class A-EC2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class R-I, Class R-II and Class R-III Certificates
(together with the Class M Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate (except to the extent it represents the Class
O Grantor Trust Interest) is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance
A-17-4
<PAGE>
hereof, agrees to treat, and to take no action inconsistent with the treatment
of, this Certificate in accordance with the preceding sentence for purposes of
federal income taxes, state and local income and franchise taxes and other taxes
imposed on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class O
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling Servicing Agreement.
Interest will accrue on the Class O Certificates during each
Interest Accrual Period (as defined below) at a rate equal to the Class M
Pass-Through Rate on the outstanding Certificate Balance hereof. All
calculations of interest on the Class M Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. The "Interest Accrual
Period" with respect to any Distribution Date is the calendar month preceding
the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such
A-17-5
<PAGE>
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date and is the registered owner
of Certificates the aggregate Certificate Balance or Notional Balance, as
applicable, of which is at least $25,000, or otherwise (b) by check mailed to
such Certificateholder. The final distribution on this Certificate shall be made
in like manner upon presentation and surrender of this Certificate at the
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class O Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an
A-17-6
<PAGE>
institutional investor that the Initial Investor reasonably believes is a QIB
purchasing for its own account or a person purchasing for the account of a QIB,
whom the Initial Investor has informed, in each case, that the reoffer, resale,
pledge or other transfer is being made in reliance on Rule 144A, (B) to certain
institutional "accredited investors" within the meaning of Rule
501(a)(1),(2),(3) or (7) of Regulation D under the Securities Act or (C)
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and applicable state securities
laws.
The Class O Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "benefit plan"), or (b) an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "plan assets" for purposes of Regulation Section
2510.3-101 of ERISA, whose underlying assets include benefit plan assets by
reason of a benefit plan's investment in the entity.
Each prospective transferee of a Class O Certificate will be
required to deliver to the Depositor, the Certificate Registrar and the Trustee
a transferee representation letter, substantially in the form set forth in the
Pooling and Servicing Agreement referred to herein, affirming facts
substantiating that the foregoing transfer restrictions have been satisfied. Any
transfer failing to meet the requirements as set forth above shall be void and
of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or
A-17-7
<PAGE>
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or the Trustee to make a P&I Advance or
Property Advance without the consent of the Holders of all Certificates
representing all of the Voting Rights of the Class or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
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<PAGE>
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf 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.
A-17-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class O
Certificate to be duly executed.
Dated: _____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: ___________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class O Certificate referred to in the Pooling and
Servicing Agreement.
Dated: ______________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Authenticating Agent
By: ________________________________________
Authorized Officer
A-17-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto __________________________________________________________
_______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class O Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class O
Certificate of the entire Percentage Interest represented by the within Class O
Certificates to the above-named Assignee(s) and to deliver such Class O
Certificate to the following address:
- -------------------------------------------
- -------------------------------------------
Date: ___________________________ _____________________________________________
Signature by or on behalf of Assignor(s)
_____________________________________________
Taxpayer Identification Number
A-17-11
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
_______________________________________________ for the account of
____________________________________________________________ account number
_______________________________.
This information is provided by _______________________________ the Assignee(s)
named above, or ________________________________ as its (their) agent.
By: ____________________________
_________________________________
[Please print or type name(s)]
_________________________________
Title
_________________________________
Taxpayer Identification Number
A-17-12
<PAGE>
THIS CLASS R-I CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF
OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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. A
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET
FORTH IN SECTION 5.2(J) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE
REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT
THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH
TERM IS DEFINED IN CODE SECTION 860E(E)(5), OR AN AGENT (INCLUDING A BROKER,
NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE
A PERMITTED TRANSFEREE (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN), (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME
DUE AND INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND
(C) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY
BECOME DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER
PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE
RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL
INTEREST," AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(C), TRANSFERS OF
THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS
DEEMED TO HAVE AGREED TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE
UPPER-TIER REMIC AND TO THE APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND
AGENT FOR THE TAX MATTERS PERSON OR AS OTHERWISE PROVIDED IN THE
A-18-1
<PAGE>
POOLING AND SERVICING AGREEMENT TO PERFORM THE FUNCTIONS OF A "TAX MATTERS
PARTNER" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT PLAN ASSETS BY REASON OF A
BENEFIT PLAN'S INVESTMENT IN THE ENTITY.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER
A-18-2
<PAGE>
FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND
OF NO EFFECT.
THE CLASS R-I CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE
CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
A-18-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS R-I
CUSIP: 74436JFT9 Percentage Interest: 100%
This certifies that _________________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in the Trust
Fund. The Class R-I Certificateholder is not entitled to interest or principal
distributions. The Class R-I Certificateholder will be entitled to receive the
proceeds of the remaining assets of the Upper-Tier REMIC, if any, on the
Scheduled Final Distribution Date for the 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 Certificates to zero. It is not anticipated that there will be
any assets remaining in the Upper-Tier REMIC, the Middle-Tier REMIC, the
Lower-Tier REMIC or Trust Fund on the Final Scheduled Distribution Date
following the distributions on the Regular Certificates.
The Trust Fund, described more fully below, consists primarily of a
pool of commercial Mortgage Loans secured by commercial and multifamily
properties and held in trust by the Trustee and serviced by the Master Servicer.
The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement dated as of July 1, 1999 (the "Pooling
and Servicing Agreement"), by and among Prudential Securities Secured Financing
Corporation, as depositor (the "Depositor"), National Realty Funding L.C., as
master servicer (the "Master Servicer") and special servicer (the "Special
Servicer"), and The Chase Manhattan Bank, as trustee (the "Trustee").
Capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement. This Certificate does not purport to summarize
the Pooling and Servicing Agreement, and reference is made to the Pooling and
Servicing Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
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 Internal Revenue Code of 1986, as amended
(the "Code"). Each Holder of this Certificate, by acceptance hereof, agrees to
treat, and to take no action inconsistent with the treatment of, this
Certificate in accordance with the preceding sentence for purposes of federal
income taxes, state and local income and franchise taxes and other taxes imposed
on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
A-18-4
<PAGE>
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class R-I
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the aggregate
Certificate Balance or Notional Balance, as applicable, of which is at least
$25,000, or otherwise (b) by check mailed to such Certificateholder. The final
distribution on this Certificate shall be made in like manner upon presentation
and surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent
A-18-5
<PAGE>
shall pay to the Master Servicer all amounts distributable to the
Holders thereof, at which time the obligations of the Trustee to such Holders
with respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class R-I Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an institutional investor that the Initial
Investor reasonably believes is a QIB purchasing for its own account or a person
purchasing for the account of a QIB, whom the Initial Investor has informed, in
each case, that the reoffer, resale, pledge or other transfer is being made in
reliance on Rule 144A, (B) to certain institutional "accredited investors"
within the meaning of Rule 501(a)(1),(2),(3) or (7) of Regulation D under the
Securities Act or (C) pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and applicable
state securities laws.
The Class R-I Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "benefit plan"), or (b) an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "plan assets" for purposes of Regulation Section
2510.3-101 of ERISA, whose underlying assets include benefit plan assets by
reason of a benefit plan's investment in the entity.
Each prospective transferee of a Class R-I Certificate will be
required to deliver to the Depositor, the Certificate Registrar and the Trustee
a transferee representation letter, substantially in the form set forth in the
Pooling and Servicing
A-18-6
<PAGE>
Agreement referred to herein, affirming facts substantiating that the foregoing
transfer restrictions have been satisfied. Any transfer failing to meet the
requirements as set forth above shall be void and of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or
A-18-7
<PAGE>
the Trustee to make a P&I Advance or Property Advance without the consent of the
Holders of all Certificates representing all of the Voting Rights of the Class
or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
A-18-8
<PAGE>
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf 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.
A-18-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class R-I
Certificate to be duly executed.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Trustee
By: _________________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class R-I Certificate referred to in the Pooling
and Servicing Agreement.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _________________________________________
Authorized Officer
A-18-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto __________________________________________________________
_______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class R-I Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class R-I
Certificate of the entire Percentage Interest represented by the within
Class R-I Certificates to the above-named Assignee(s) and to deliver such
Class R-I Certificate to the following address:
___________________________________________
___________________________________________
Date: ___________________________ _____________________________________________
Signature by or on behalf of Assignor(s)
_____________________________________________
Taxpayer Identification Number
A-18-11
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
_______________________________________________________________________________
for the account of ____________________________________________________________
account number _______________________________.
This information is provided by _______________________________ the Assignee(s)
named above, or ________________________________ as its (their) agent.
By: ____________________________
_________________________________
[Please print or type name(s)]
_________________________________
Title
_________________________________
Taxpayer Identification Number
A-18-12
<PAGE>
THIS CLASS R-II CERTIFICATE DOES NOT REPRESENT AN OBLIGATION
OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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. A
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET
FORTH IN SECTION 5.2(J) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE
REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT
THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH
TERM IS DEFINED IN CODE SECTION 860E(E)(5), OR AN AGENT (INCLUDING A BROKER,
NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE
A PERMITTED TRANSFEREE (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN), (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME
DUE AND INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND
(C) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY
BECOME DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER
PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE
RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL
INTEREST," AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(C), TRANSFERS OF
THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS
DEEMED TO HAVE AGREED TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE
MIDDLE-TIER REMIC AND TO THE APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND
AGENT FOR THE TAX MATTERS PERSON OR AS OTHERWISE PROVIDED IN THE
A-19-1
<PAGE>
POOLING AND SERVICING AGREEMENT TO PERFORM THE FUNCTIONS OF A "TAX MATTERS
PARTNER" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT PLAN ASSETS BY REASON OF A
BENEFIT PLAN'S INVESTMENT IN THE ENTITY.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER
A-19-2
<PAGE>
FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND OF NO
EFFECT.
THE CLASS R-II CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE
CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
A-19-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS R-II
CUSIP: 74436JFT9 Percentage Interest: 100%
This certifies that _________________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in the Trust
Fund. The Class R-II Certificateholder is not entitled to interest or principal
distributions. The Class R-II Certificateholder will be entitled to receive the
proceeds of the remaining assets of the Middle-Tier REMIC, if any, on the
Scheduled Final Distribution Date for the 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 Certificates to zero. It is not anticipated that there will be
any assets remaining in the Upper-Tier REMIC, the Middle-Tier REMIC, the
Lower-Tier REMIC or Trust Fund on the Final Scheduled Distribution Date
following the distributions on the Regular Certificates.
The Trust Fund, described more fully below, consists primarily of a
pool of commercial Mortgage Loans secured by commercial and multifamily
properties and held in trust by the Trustee and serviced by the Master Servicer.
The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement dated as of July 1, 1999 (the "Pooling
and Servicing Agreement"), by and among Prudential Securities Secured Financing
Corporation, as depositor (the "Depositor"), National Realty Funding L.C., as
master servicer (the "Master Servicer") and special servicer (the "Special
Servicer"), and The Chase Manhattan Bank, as trustee (the "Trustee").
Capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement. This Certificate does not purport to summarize
the Pooling and Servicing Agreement, and reference is made to the Pooling and
Servicing Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
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 Internal Revenue Code of 1986, as amended
(the "Code"). Each Holder of this Certificate, by acceptance hereof, agrees to
treat, and to take no action inconsistent with the treatment of, this
Certificate in accordance with the preceding sentence for purposes of federal
income taxes, state and local income and franchise taxes and other taxes imposed
on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
A-19-4
<PAGE>
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class R-II
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Holder hereof by its acceptance of this Certificate agrees
to look solely to the assets of the Trust Fund as provided in the Pooling and
Servicing Agreement for payment hereunder and that the Trustee, in its
individual capacity, is not personally liable to the Holder hereof for any
amounts payable under this Certificate and the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the aggregate
Certificate Balance or Notional Balance, as applicable, of which is at least
$25,000, or otherwise (b) by check mailed to such Certificateholder. The final
distribution on this Certificate shall be made in like manner upon presentation
and surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If
A-19-5
<PAGE>
within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Master Servicer may, directly or through an
agent, take appropriate steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Master Servicer all amounts distributable to the Holders
thereof, at which time the obligations of the Trustee to such Holders with
respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class R-II Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an institutional investor that the Initial
Investor reasonably believes is a QIB purchasing for its own account or a person
purchasing for the account of a QIB, whom the Initial Investor has informed, in
each case, that the reoffer, resale, pledge or other transfer is being made in
reliance on Rule 144A, (B) to certain institutional "accredited investors"
within the meaning of Rule 501(a)(1),(2),(3) or (7) of Regulation D under the
Securities Act or (C) pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and applicable
state securities laws.
The Class R-II Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "benefit plan"), or (b) an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "plan assets" for purposes of Regulation Section
2510.3-101 of
A-19-6
<PAGE>
ERISA, whose underlying assets include benefit plan assets by reason of a
benefit plan's investment in the entity.
Each prospective transferee of a Class R-II Certificate will
be required to deliver to the Depositor, the Certificate Registrar and the
Trustee a transferee representation letter, substantially in the form set forth
in the Pooling and Servicing Agreement referred to herein, affirming facts
substantiating that the foregoing transfer restrictions have been satisfied. Any
transfer failing to meet the requirements as set forth above shall be void and
of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the
A-19-7
<PAGE>
timing of, payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of each affected
Certificateholder; (ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of all
Certificates then outstanding; or (ii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the obligations of the Master Servicer or
the Trustee to make a P&I Advance or Property Advance without the consent of the
Holders of all Certificates representing all of the Voting Rights of the Class
or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing
A-19-8
<PAGE>
Agreement. In no event, however, will the trust created by the Pooling and
Servicing Agreement continue beyond the expiration of 21 years from the death of
the last surviving descendant(s) of Joseph P. Kennedy, the late ambassador of
the United States to the Court of St. James' living on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf 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.
A-19-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class R-II
Certificate to be duly executed.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but
solely as Trustee
By: __________________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class R-II Certificate referred to in the Pooling
and Servicing Agreement.
Dated: _____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity butsolely as
Authenticating Agent
By: __________________________________________
Authorized Officer
A-19-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto __________________________________________________________
_______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class R-II Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class R-II
Certificate of the entire Percentage Interest represented by the within
Class R-II Certificates to the above-named Assignee(s) and to deliver such
Class R-II Certificate to the following address:
___________________________________________
___________________________________________
Date: ___________________________ _____________________________________________
Signature by or on behalf of Assignor(s)
_____________________________________________
Taxpayer Identification Number
A-19-11
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ____________________________________________________________
account number _______________________________.
This information is provided by _______________________________ the Assignee(s)
named above, or ________________________________ as its (their) agent.
By: ____________________________
_________________________________
[Please print or type name(s)]
_________________________________
Title
_________________________________
Taxpayer Identification Number
A-19-12
<PAGE>
THIS CLASS R-III CERTIFICATE DOES NOT REPRESENT AN OBLIGATION
OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MORTGAGE LOAN SELLERS, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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. A
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET
FORTH IN SECTION 5.2(J) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE
REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT
THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH
TERM IS DEFINED IN CODE SECTION 860E(E)(5), OR AN AGENT (INCLUDING A BROKER,
NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE
A PERMITTED TRANSFEREE (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN), (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME
DUE AND INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND
(C) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY
BECOME DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER
PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE
RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL
INTEREST," AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(C), TRANSFERS OF
THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS
DEEMED TO HAVE AGREED TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE
LOWER-TIER REMIC AND TO THE APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND
AGENT FOR THE TAX MATTERS PERSON OR AS OTHERWISE PROVIDED IN THE
A-20-1
<PAGE>
POOLING AND SERVICING AGREEMENT TO PERFORM THE FUNCTIONS OF A "TAX MATTERS
PARTNER" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE PURCHASED
BY A TRANSFEREE THAT IS (A) AN EMPLOYEE BENEFIT PLAN TRUST OR ACCOUNT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF ERISA
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH,
A "BENEFIT PLAN"), OR (B) AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY SUCH
ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION 2510.3-101
OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT PLAN ASSETS BY REASON OF A
BENEFIT PLAN'S INVESTMENT IN THE ENTITY.
EACH PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE WILL BE
REQUIRED TO DELIVER TO THE DEPOSITOR, THE CERTIFICATE REGISTRAR AND THE TRUSTEE
A TRANSFEREE REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, AFFIRMING FACTS
SUBSTANTIATING THAT THE FOREGOING TRANSFER RESTRICTIONS HAVE BEEN SATISFIED. ANY
TRANSFER
A-20-2
<PAGE>
FAILING TO MEET THE REQUIREMENTS AS SET FORTH ABOVE SHALL BE VOID AND OF NO
EFFECT.
THE CLASS R-III CERTIFICATES ARE SUBORDINATED IN RESPECT OF
DISTRIBUTIONS OF INTEREST AND PRINCIPAL TO CERTAIN OTHER CLASSES OF
CERTIFICATES.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(1) AND 860D OF THE
CODE.
THIS SECURITY IS NOT A "MORTGAGE RELATED SECURITY" FOR
PURPOSES OF THE SECONDARY MORTGAGE MARKET ENHANCEMENT ACT ("SMMEA").
A-20-3
<PAGE>
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2, CLASS R-III
CUSIP:____________ Percentage Interest: 100%
This certifies that _________________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in the Trust
Fund. The Class R-III Certificateholder is not entitled to interest or principal
distributions. The Class R-III Certificateholder will be entitled to receive the
proceeds of the remaining assets of the Lower-Tier REMIC, if any, on the
Scheduled Final Distribution Date for the 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 Certificates to zero. It is not anticipated that there will be
any assets remaining in the Upper-Tier REMIC, the Middle-Tier REMIC, the
Lower-Tier REMIC or Trust Fund on the Final Scheduled Distribution Date
following the distributions on the Regular Certificates.
The Trust Fund, described more fully below, consists primarily of a
pool of commercial Mortgage Loans secured by commercial and multifamily
properties and held in trust by the Trustee and serviced by the Master Servicer.
The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement dated as of July 1, 1999 (the "Pooling
and Servicing Agreement"), by and among Prudential Securities Secured Financing
Corporation, as depositor (the "Depositor"), National Realty Funding L.C., as
master servicer (the "Master Servicer") and special servicer (the "Special
Servicer"), and The Chase Manhattan Bank, as trustee (the "Trustee").
Capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement. This Certificate does not purport to summarize
the Pooling and Servicing Agreement, and reference is made to the Pooling and
Servicing Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
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 Internal Revenue Code of 1986, as amended
(the "Code"). Each Holder of this Certificate, by acceptance hereof, agrees to
treat, and to take no action inconsistent with the treatment of, this
Certificate in accordance with the preceding sentence for purposes of federal
income taxes, state and local income and franchise taxes and other taxes imposed
on or measured by income.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
A-20-4
<PAGE>
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the fifteenth day of
each month, or if such fifteenth day is not a Business Day, the Business Day
immediately following such fifteenth day, commencing in August, 1999, provided
that no Distribution Date will fall on a date that is fewer than 4 Business Days
following the related Determination Date (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate after taking into
account transfers and exchanges occurring prior to the related Record Date) of
that portion of the aggregate amount of any principal and interest (including
Excess Appraisal Reduction Collections) then distributable to the Class R-III
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. This Certificate is limited in right of payment
to, among other things, certain collections and recoveries in respect of the
Mortgage Loans, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs. Such distributions will be made (a)
by wire transfer in immediately available funds to the account specified by the
Certificateholder at a bank or other entity located in the United States having
appropriate facilities therefor, if such Certificateholder provides the Trustee
with wiring instructions no less than five Business Days prior to the related
Record Date and is the registered owner of Certificates the aggregate
Certificate Balance or Notional Balance, as applicable, of which is at least
$25,000, or otherwise (b) by check mailed to such Certificateholder. The final
distribution on this Certificate shall be made in like manner upon presentation
and surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.1 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Master Servicer shall
mail a second notice to the remaining Certificateholders, at their addresses
shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Master Servicer may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent
A-20-5
<PAGE>
shall pay to the Master Servicer all amounts distributable to the Holders
thereof, at which time the obligations of the Trustee to such Holders with
respect to such amounts shall terminate, and the Master Servicer shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with Section 9.1 of the Pooling and Servicing
Agreement. Such funds held by the Master Servicer shall not be invested.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the corporate trust office of the Certificate
Registrar or at the office of any transfer agent. The Certificate Registrar
shall require that this Certificate be duly endorsed by, or accompanied by a
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. Thereupon, one or more new Certificates of a like outstanding
Certificate Balance or Notional balance of the same Class in authorized
denominations will be executed by the Trustee or the Authenticating Agent and
authenticated by the Authenticating Agent and delivered by the Certificate
Registrar to the designated transferee or transferees.
The Class R-III Certificates have not been and will not be
registered under the 1933 Act or any state or foreign securities law and may not
be reoffered, resold, pledged or otherwise transferred except (A) pursuant to
Rule 144A under the 1933 Act to an institutional investor that the Initial
Investor reasonably believes is a QIB purchasing for its own account or a person
purchasing for the account of a QIB, whom the Initial Investor has informed, in
each case, that the reoffer, resale, pledge or other transfer is being made in
reliance on Rule 144A, (B) to certain institutional "accredited investors"
within the meaning of Rule 501(a)(1),(2),(3) or (7) of Regulation D under the
Securities Act or (C) pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and applicable
state securities laws.
The Class R-III Certificates or interests therein may not be
purchased by a transferee that is (a) an employee benefit plan trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in Section 3(32)
of ERISA subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "benefit plan"), or (b) an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "plan assets" for purposes of Regulation Section
2510.3-101 of ERISA, whose underlying assets include benefit plan assets by
reason of a benefit plan's investment in the entity.
Each prospective transferee of a Class R-III Certificate will
be required to deliver to the Depositor, the Certificate Registrar and the
Trustee a transferee representation letter, substantially in the form set forth
in the Pooling and Servicing
A-20-6
<PAGE>
Agreement referred to herein, affirming facts substantiating that the foregoing
transfer restrictions have been satisfied. Any transfer failing to meet the
requirements as set forth above shall be void and of no effect.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, any Paying Agent, and any agent of any of them may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and none of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange of this Certificate referred to in Section 5.2 of the Pooling and
Servicing Agreement, except that the Certificate Registrar may require payment
by each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein, (iii) to amend any provision
thereof to the extent necessary or desirable to maintain the rating or ratings
assigned to each of the Classes of Regular Certificates by each Rating Agency,
or (iv) to make any other provisions with respect to matters or questions
arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in the downgrading, withdrawal or qualification of the rating or
ratings then assigned to any outstanding Class of Certificates, as confirmed by
each Rating Agency in writing and, which, as evidenced by an Opinion of Counsel
at the expense of the party (other than the Trustee, unless such amendment
modifies or otherwise relates solely to the obligations, duties or rights of the
Trustee) requesting such amendment, shall not adversely affect in any material
respect the interests of any Certificateholder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the aggregate Voting Rights
allocated to each Class of Certificates affected by the amendment for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of each affected Certificateholder; (ii) change
the percentages of Voting Rights of Holders of Certificates which are required
to consent to any action or inaction under the Pooling and Servicing Agreement,
without the consent of the Holders of all Certificates then outstanding; or (ii)
alter the servicing standard set forth in the Pooling and Servicing Agreement or
the obligations of the Master Servicer or
A-20-7
<PAGE>
the Trustee to make a P&I Advance or Property Advance without the consent of the
Holders of all Certificates representing all of the Voting Rights of the Class
or Classes affected thereby.
Further, the Depositor, the Master Servicer, the Special
Servicer and the Trustee, at any time and from time to time, without the consent
of the Certificateholders, may amend the Pooling and Servicing Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust REMICs as three separate
REMICs, or to prevent the imposition of any additional material state or local
taxes, at all times that any Certificates are outstanding; provided, however,
that such action, as evidenced by an opinion of counsel, is necessary or helpful
to maintain such qualification or to prevent the imposition of any such taxes,
and would not adversely affect in any material respect the interest of any
Certificateholder.
No amendment shall cause any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, as
evidenced by an opinion of counsel.
The Master Servicer, the Special Servicer, the Depositor or
the Holders of the Class R-III Certificates representing greater than a 50%
Percentage Interest of the Class R-III Certificates will have the option, in
that order, upon 30 days' prior Notice of Termination given to the Trustee and
the Master Servicer, which notice the Trustee is required to forward to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement, to purchase all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans remaining in the Trust Fund is less than
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the purchase of the Mortgage
Loans and properties acquired in respect thereof by the Master Servicer, the
Special Servicer, the Depositor or the Holders of the Class R-III Certificates
as described above; (ii) the later of (a) the distribution to Certificateholders
of final payment with respect to the Mortgage Loans or (b) the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the Mortgage Loans and the remittance to the Certificateholders of
all funds due under the Pooling and Servicing Agreement; or (iii) the sale of
assets of the Trust Fund after the Certificate Balances and Notional Balances of
all the Certificates (other than the Class R-I, Class R-II and Class R-III
Certificates) have been reduced to zero under circumstances set forth in the
Pooling and Servicing Agreement. In no event, however, will the trust created by
the Pooling and Servicing Agreement continue beyond the expiration of 21 years
from the death of the last surviving descendant(s) of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James' living on the
date hereof.
A-20-8
<PAGE>
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf 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.
A-20-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class R-III
Certificate to be duly executed.
Dated: ____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but
solely as Trustee
By: __________________________________________
Authorized Officer
Certificate of Authentication
- -----------------------------
This is the Class R-III Certificate referred to in the Pooling
and Servicing Agreement.
Dated: _____________________
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Authenticating Agent
By: __________________________________________
Authorized Officer
A-20-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto __________________________________________________________
_______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class R-III Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class R-III
Certificate of the entire Percentage Interest represented by the within Class
R-III Certificates to the above-named Assignee(s) and to deliver such Class
R-III Certificate to the following address:
___________________________________________
___________________________________________
Date: ___________________________ _____________________________________________
Signature by or on behalf of Assignor(s)
_____________________________________________
Taxpayer Identification Number
A-20-11
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ____________________________________________________________
account number _______________________________.
This information is provided by _______________________________ the Assignee(s)
named above, or ________________________________ as its (their) agent.
By: ____________________________
_________________________________
[Please print or type name(s)]
_________________________________
Title
_________________________________
Taxpayer Identification Number
A-20-12
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Distributions, if be made by wire transfer in immediately available funds to
______________________________________________________________________________
for the account of ____________________________________________________________
account number _______________________________.
This information is provided by _______________________________ the Assignee(s)
named above, or ________________________________ as its (their) agent.
By: ____________________________
_________________________________
[Please print or type name(s)]
_________________________________
Title
_________________________________
Taxpayer Identification Number
A-20-13
<PAGE>
EXHIBIT B
<TABLE>
<CAPTION>
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CONTROL LOAN LOAN
NUMBER NUMBER CONTRIBUTOR PROPERTY NAME
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<S> <C> <C> <C>
6 BRIDGER VARIOUS
6.10 215990028 Bridger 1376 Bordeaux
6.20 215990053 Bridger 1380 Bordeaux
25 300980020 Bridger Southwind Mobile Home Estates
26 610980009 Bridger K-Mart Rogers
36 415990042 Bridger Alameda Technology Center
105 400980013 Bridger Heritage Estates / Flamingo Shores
118 202980008 Bridger 2801 Red Dog Drive
121 400980010 Bridger Royal View Gardens
125 410990037 Bridger Hen-Ridge Apartments
128 400980015 BRIDGER COMFORT INN/KNIGHTS INN ROLL-UP
128.10 400980015A Bridger Comfort Inn
128.20 400980015B Bridger Knights Inn
142 60598007 Bridger 1682 Novato Blvd.
146 400990040 Bridger Bonneville Gardens
153 600980001 Bridger 901 E Street
164 410990035 Bridger Sandra Court Apartments
174 400980016 Bridger Twin Valley Estates
177 201980005 Bridger 131 So. Maple Ave.
178 100980011 Bridger 4140 Lockbourne
183 202980006 Bridger Southern Station
185 202990026 Bridger West Haven
188 210990027 Bridger Valley View
203 410990036 Bridger Leverington Court Apartments
204 400980014 Bridger Oak Bend MHP
1 03-0810828 GREENWICH CROWN HOTELS
1.10 03-0810828A Greenwich Atlanta Holiday Inn- Downtown
1.20 03-0810828B Greenwich Holiday Inn
1.30 03-0810828C Greenwich Holiday Inn Holidome
1.40 03-0810828D Greenwich Asheville Comfort Suites
1.50 03-0810828E Greenwich Holiday Inn Executive Park
1.60 03-0810828F Greenwich Wyndham Garden
1.70 03-0810828G Greenwich Beaver Falls Holiday Inn
1.80 03-0810828H Greenwich Courtyard by Marriott
1.90 03-0810828I Greenwich East Comfort Inn
1.91 03-0810828J Greenwich Wyndham Garden
1.92 03-0810828K Greenwich Johnstown Holiday Inn
1.93 03-0810828L Greenwich Holiday Inn Express
1.94 03-0810828M Greenwich Pottstown Comfort Inn
1.95 03-0810828N Greenwich Holiday Inn Holidome
1.96 03-0810828O Greenwich Rock Hill Holiday Inn
2 03-0810141 Greenwich Bridgepointe Shopping Center
3 03-0810618 Greenwich 122 Fifth Avenue
9 03-0810140 Greenwich Ventana Vista Apartments
10 03-0810054 Greenwich Park Plaza Shopping Center
13 03-0810102 Greenwich Boulder Run Shopping Center
14 03-0221360 Greenwich West 49th Street
15 03-0810072 Greenwich Brenden Theatres
16 03-0810052 Greenwich The Pavillions at Mesa
17 03-0221361 Greenwich Desert Star Apartments
19 9811010012 Greenwich North Valley Medical Plaza
21 03-0221428 Greenwich Boardwalk @ Anderson Springs
23 03-0810596 Greenwich Pembrooke Square Medical Center
27 03-0810056 Greenwich Park Fair Mall
29 03-0810110 Greenwich Buckhead Exchange
30 03-0810122 Greenwich Pascack Plaza
31 03-0810037 Greenwich Days Inn Hotel
34 03081090008 Greenwich Hampton Inn - Sea Tac
35 03-0221351 Greenwich Devir Street Apartments
37 9811010011 Greenwich Clocktower Apartments Phase I
38 03-0221371 Greenwich Best Western Cascadia Inn
39 03-0810108 Greenwich Global Plaza West
40 03-0810597 Greenwich Ponce de Leon Care Center
41 03-0221420 Greenwich 1000 Henry Street
42 03-0810082 Greenwich 55 Post Road West
43 03-0221331 Greenwich Greenway Terrace
45 03-0221336 Greenwich Bayside Willows Apartments
46 03-0221448 Greenwich Westgate Plaza
49 03-0810061 GREENWICH APPLE CREEK MHP / SELF STORAGE AND ORCHARD LAKE MHP (ROLL-UP
49.10 03-0810061A Greenwich Apple Creek Mobile Home Park / Self Storage
49.20 03-0810061B Greenwich First Security Self Storage
49.30 03-0810061C Greenwich Orchard Lake Mobile Home Park
51 03-0221365 Greenwich Westpointe II Apartments
52 03-0810086 Greenwich CB/Buckhead - Roswell
53 03-0810078 Greenwich Park Green Apartments
54 03-0221366 Greenwich Bridle Path Apartments
56 03-0221357 Greenwich Hawaii Market Shopping Center
60 03-0221330 Greenwich La Fuente Inn
61 03-0221356 Greenwich Pueblo Hills Shopping Center
62 03-0810112 Greenwich The Park Belvedere
64 03-0810584 Greenwich Lee Park Plaza
65 03-0810565 Greenwich Hood River Care Center
66 03-0810566 Greenwich 221 Route 4 East
68 03-0810139 Greenwich Essex Warehouse
69 03-0810610 Greenwich Freeman Decorating Company
70 03-0810608 Greenwich Doctors Hospital of West Covina
71 9902010038 Greenwich Beven Street Warehouse
72 03-0810093 Greenwich Crescenta Valley Mini Storage
73 03-0221367 Greenwich Stonebridge Health Center
74 03-0221338 Greenwich Wagner Heights Nursing and Rehabilitation Center
75 03-0221340 Greenwich 22 East 67th Street
76 03-0810611 Greenwich Flemington Arms Apartments
78 03-0221349 Greenwich Shrewsbury Crossing Assisted Living Facility
80 03-0221355 Greenwich Gillette Nursing Home
81 03-0221427 Greenwich Sierra Apartments
82 03-0221432 Greenwich 6845 Deerpath Building
83 03-0810113 Greenwich Palace Plaza Shopping Center
84 03-0221362 Greenwich Sunplace Apartments
85 03-0810071 Greenwich Meadow Wood Crown Plaza
86 03-0221358 Greenwich Oakbridge Retail Center
87 03-0221353 Greenwich Gateway Plaza Shopping Center
102 03-0810014 Greenwich English Gardens Apartments
103 03-0810030 Greenwich Pembroke Place North Shopping Center
104 03-0221434 Greenwich The Northgate Office Building
108 9811010009 Greenwich Napoleon Medical Office Building
110 03-0221332 Greenwich Rancho San Diego Self Storage
113 03-0221423 Greenwich Jamaica Avenue Building
119 03-0221363 Greenwich Forest Brooke Apartments
120 9811010015 Greenwich Pleasant Village Shopping Center
122 9811010010 Greenwich Raymour & Flanigan Center
123 03-0221424 Greenwich Capital City Plaza
124 9812010027 Greenwich Quality Inn and Suites - Aberdeen
126 03-0221426 Greenwich Graham Center
130 03-0221350 Greenwich Village Shops at Chandler
133 03-0810590 Greenwich 12th and Monroe Shops and 1204 Newton St. NE
134 03-0810073 Greenwich Sierra Apartments
137 03-0810571 Greenwich Colonial Square Apartments
138 03-0221421 Greenwich Elks Plaza Shopping Center
139 9903020001 Greenwich Days Inn - Arlington
140 03-0810080 Greenwich Seth I Apartments
143 03-0810602 Greenwich Lindenwald Plaza Shopping Center
144 03-0221435 Greenwich T.I.G. Industrial Building
148 03-0810106 Greenwich Cypress Gardens Mobile Home Park
151 940906389 Greenwich Park Meadows Apartments
154 9811010014 Greenwich Princeton Woods Shopping Center
155 03-0810606 Greenwich 1212 Hancock Street
158 03-0221425 Greenwich Hilltop Willow Branch Apartments
159 03-0810090 Greenwich D'Agostino Supermarket
162 03-0221352 Greenwich Tooele Main Street Shops
163 03-0810083 Greenwich CB/Buckhead - Alpharetta
166 03-0810605 Greenwich Westheimer Center
168 03-0810111 Greenwich 3900 Richmond Avenue
170 03-0810587 Greenwich Raintree Office Building
171 03-0810576 Greenwich 1770 Post Road Associates
172 03-0810081 Greenwich CVS Store
173 03-0810130 Greenwich Allentown Self Storage
175 03-0221359 Greenwich 636 Eighth Avenue
180 03-0810614 Greenwich Magnolia Center Office Building
181 03-0810089 Greenwich CB/Buckhead - Duluth
182 03-0810612 Greenwich Willows Apartments
184 940907032 Greenwich 3951 Vestal Parkway East
186 03-0221369 Greenwich Milton Square Shopping Center
189 03-0221327 Greenwich 282-299 Grand Street
192 03-0810084 Greenwich CB/Buckhead - Fulton
196 03-0810593 Greenwich 2600-2602 Jefferson Street
198 03-0221333 Greenwich Alamo Self Storage
200 03-0810087 Greenwich CB/Buckhead - Marietta
201 03-0810064 Greenwich Diamond Plaza
205 03-0810560 Greenwich L'Abri Apartments
209 03-0810557 Greenwich Rambler Mobile Home Park
210 03-0810555 Greenwich Howard Johnson
213 03-0810613 Greenwich Best Western Jed Prouty Motor Inn
215 03-0810619 Greenwich Trade Fair Supermarket
222 03-0221328 Greenwich Sternberg Apartments
223 940907356 Greenwich Hillcrest Apartments
224 03-0810575 Greenwich 235 Glenville Road
226 03-0810594 Greenwich Commerce Park Office / Warehouse
227 03-0810615 Greenwich Bel-Air Mobile Home Park
228 03-0810533 Greenwich Parkchester Apartments
229 03-0810588 Greenwich Bandera Landing
232 03-0810578 Greenwich 1215 NE 23rd Street
233 03-0810572 Greenwich Cypress Villas Apartments
234 03-0810579 Greenwich Neico Investments, LLC
5 GL981131 KeyBank Emery/Busch Industrial Building
18 KEYBANK VARIOUS
18.10 4164695 KeyBank Pine Lake Apartments
18.20 4164709 KeyBank Terrace Trace Apartments
18.30 4164733 KeyBank Jupiter Cove Apartments I
18.40 4164814 KeyBank Rivers End I Apartments
18.50 4164831 KeyBank Cypress Apartments
18.60 GL991009 KeyBank Jupiter Cove III
22 KEYBANK VARIOUS
22.10 6218 KeyBank Princeton Court Apartments
22.20 6219 KeyBank Elmtree Park Apartments
22.30 6220 KeyBank Meadowood Apartments
22.40 6221 KeyBank Rosewood Commons Apartments
22.50 6223 KeyBank Acadia Court Apartments
24 GL981134 KeyBank Laguna Properties Building
28 KEYBANK VARIOUS
28.10 6029 KeyBank Pine Terrace I & II Apartments
28.20 6033 KeyBank Sanford Court Apartments
28.30 6034 KeyBank Applewood I & II Apartments
44 4794 KeyBank Rolla Center
48 4163141 KeyBank Cheyenne Mountain Shopping Center
79 4163231 KeyBank Clearwater Commons
90 4161904 KeyBank Westbay Assisted Living Residence
116 RM991008 KeyBank Westwinds Mobile Home Park
129 4163257 KEYBANK KEYSTONE WAY SHOPPES / CVS PHARMACY / TACO BELL
129.10 4163257A KeyBank Sears Hardware / Keystone Way Shoppes
129.20 4163257B KeyBank CVS Pharmacy / Taco Bell
131 4164873 KeyBank Meldon Place Apartments
136 4163583 KeyBank Cambridge Plaza
149 4161548 KeyBank Jamestown Apartments
152 4165039 KeyBank Carmel Self Storage
161 6222 KeyBank Heathmore II Apartments
167 4164954 KeyBank Winthrop Court Apartments
169 4162366 KeyBank Middlefield Mobile Home Park
190 4161327 KeyBank Issaquah Building
191 4163281 KeyBank Quail Street Commons
195 6032 KeyBank Palm Side Apartments
206 6217 KeyBank Willowood East Apartments
211 4163176 KeyBank Big 5 Sporting Goods - KlamathFalls
212 4161262 KeyBank Big 5 Sporting Goods - Bullhead City
214 6031 KeyBank Winter Woods II Apartments
216 4162480 KeyBank Fulton East Shopping Center
218 4163214 KeyBank Park Plaza Shopping Center
221 4162471 KeyBank Jason Commercial Building
231 SM991004 KeyBank Mt. Orange Mobile Home Park
4 6519 NRF Dudley Farms Plaza
7 NRF VARIOUS
7.10 5201 NRF Festival at Pasadena
7.20 6098 NRF Festival at Pasadena Pad Building
8 6423 NRF Palouse Empire Mall
11 4088 NRF Shadowridge Heights Apartments
12 5410 NRF Bayside Office Center
20 5554 NRF 4250 Veterans Highway
32 5468 NRF BeautiControl Office
33 6761 NRF REXBURG STUDENT HOUSING
33.10 6761A NRF Autumn Winds Apartments
33.20 6761B NRF Somerset Apartments
33.30 6761C NRF Brookside Village Apartments
47 1109 NRF Riverfront Apartments
50 5397 NRF Kennedy Square
55 3770 NRF Heritage Court Apartments
57 5462 NRF Santa Fe Place Apartments
58 2261 NRF Iron Mountain Building
59 1853 NRF Shore Center Shopping Center
63 4058 NRF The Hesser Center
67 6571 NRF Lochwood III Apartments
77 NRF VARIOUS
77.10 5623 NRF Colonial Park Apartments
77.20 5625 NRF Jackson Trace Apartments
77.30 5624 NRF Fox Valley Apartments
88 NRF VARIOUS
88.10 5435 NRF Eagle Trace Apartments
88.20 5434 NRF Ashbury Court Apartments
89 6415 NRF Office Depot Tallahassee
100 5900 NRF Yerington Plaza
101 6348 NRF CAPTEC FRANCHISE CAPITAL PARTNERS, L.P. IV
101.10 6348A NRF Arby's Restaurant
101.20 6348B NRF Taco Bell Restaurant
101.30 6348C NRF Taco Bell Restaurant
101.40 6348D NRF Tony Roma's Restaurant
101.50 6348E NRF Del Taco Restaurant
101.60 6348F NRF Winger's Restaurant
106 3604 NRF HIGHLAND HALL/GOLFVIEW MANOR
106.10 3604A NRF Highland Hall
106.20 3604B NRF Golfview Manor
107 6588 NRF Walgreens Drug Store
109 6071 NRF Teakwood Village Apartments
111 6091 NRF Eden Roc Apartments & Americana Apartments A & B
112 5603 NRF Olathe Duplexes
114 5551 NRF Queen Anne's Gate V Apartments
115 6416 NRF Office Depot Ormond Beach
117 5267 NRF South Arcade Retail Building
127 5369 NRF Branford Industrial Complex
132 6884 NRF Monticello Village Apartments
135 4740 NRF Stassney Square Shopping Center
141 3222 NRF Post Polaris Business Center
145 6243 NRF Holly Shopping Center
147 6347 NRF CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III
147.10 6347A NRF Jack-in-the-Box
147.20 6347B NRF Taco Bell Restaurant
147.30 6347C NRF Tony Roma's Restaurant
150 6834 NRF Sorrento Mesa Office Plaza
156 6914 NRF Winans Home Center
157 5090 NRF Pacific Breeze Apartments
160 4810 NRF Southbridge Crossing
165 5655 NRF 450 & 440 Waverly Avenue
176 5942 NRF Land O' Lakes Village Apartments
179 4591 NRF The Colton Block
187 6096 NRF Kristie Manor Apartments
193 5780 NRF Paradise Pointe
194 4410 NRF Boardwalk Boutiques
197 5965 NRF CE-FAIR Apartments
199 5992 NRF 39 Forest Avenue
207 5729 NRF 200-231 Harrison Avenue
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
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PROPERTY PROPERTY PROPERTY
PROPERTY ADDRESS CITY STATE ZIP CODE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
VARIOUS SUNNYVALE CALIFORNIA 94089
1376 Bordeaux Sunnyvale California 94089
1380 Bordeaux Sunnyvale California 94089
7300 Luther Drive Sacramento California 95823
2115 West Walnut Avenue Rogers Arkansas 72756
1255 - 1275 Harbor Bay Parkway Alameda California 94502
3275 U.S. Highway 92 Winter Haven Florida 33881
2801 Red Dog Drive Knoxville Tennessee 37914
1351 East Pepper Drive El Cajon California 92021
205-15 Rock Street Philadelphia Pennsylvania 19128
VARIOUS VARIOUS VARIOUS VARIOUS
333 S.E. First Avenue Florida City Florida 33034
1223 N.E. First Avenue Florida City Florida 33034
1682 Novato Blvd. Novato California 94947
705 South Redwood Rd. Salt Lake City Utah 84104
901 E. Street San Rafael California 94901
7014-24 Ridge Ave. Philadelphia Pennsylvania 19128
241 Lovers Lane Charlestown New Hampshire 03603
131 S. Maple Ave. S. San Francisco California 94080
4140 Lockbourne Road Columbus Ohio 43207
306 W. Depot Ave. Knoxville Tennessee 37917
3661 West Haven Center Knoxville Tennessee 37921
700 North Reed St. Sedro Woolley Washington 98284
631 Leverington Ave. Philadelphia Pennsylvania 19128
14818 Shark St. Hudson Florida 34667
VARIOUS VARIOUS VARIOUS VARIOUS
101 International Drive Atlanta Georgia 30303
100 South George Street Cumberland Maryland 21502
5400 Holiday Drive Frederick Maryland 21703
890 Brevard Road Asheville North Carolina 28806
8520 University Executive Park Drive Charlotte North Carolina 28262
4620 South Miami Boulevard Durham North Carolina 27703
7195 Eastwood Drive Beaver Falls Pennsylvania 15010
3327 Street Road Bensalem Pennsylvania 19020
4021 Union Deposit Road Harrisburg Pennsylvania 17109
765 Eisenhower Boulevard Harrisburg Pennsylvania 17111
250 Market Street Johnstown Pennsylvania 15901
1440 Scalp Avenue Johnstown Pennsylvania 15904
99 Robinson Street Pottstown Pennsylvania 19464
2000 Loucks Road York Pennsylvania 17404
2640 North Cherry Hill Rock Hill South Carolina 29730
2200 - 3020 Bridgepointe Parkway San Mateo California 94404
122 Fifth Avenue New York New York 10011
5051 North Sabino Canyon Road Tucson Arizona 85750
26705, 26741, 26841, 26851, 26611 and 26601 Aliso Creek Road Aliso Viejo California 92656
325-327 Franklin Avenue Wyckoff New Jersey 07481
308, 310, 318 - 332, 340 West 49th Street New York New York 10020
Davis Street at I-80 Vacaville California 95688
1837 - 1955 West Guadalupe Road Mesa Arizona 85202
1106 West Bell Road Phoenix Arizona 85023
3811 East Bell Road Phoenix Arizona 85032
SEC Dobson and Ray Roads Chandler Arizona 85224
11355 Pembrooke Square Waldorf Maryland 20603
100 Euclid Avenue Des Moines Iowa 50309
3167 Peachtree Road NE Atlanta Georgia 30305
1-23 Perlman Drive Spring Valley New York 10977
8350 Edes Avenue Oakland California 94621
19445 Pacific Highway South SeaTac Washington 98188
66, 92 and 108 Devir Street Malden Massachusetts 02148
Two Clocktower Place Nashua New Hampshire 03060
2800 Pacific Avenue Everett Washington 98201
3645 - 3675 South Durango Drive Las Vegas Nevada 89117
1999 Old Moultrie Road St. Augustine Florida 32086
1000 Henry Street Kailua-Kona Hawaii 96740
55 Post Road West Westport Connecticut 06880
15400 - 15472 North 99th Avenue Sun City Arizona 85351
530 Sunnyview Drive Pinole California 94564
North side of Route 30 East Whiteland Twp. Pennsylvania 19355
VARIOUS VARIOUS VARIOUS VARIOUS
2189 East Ohio Pike Amelia Ohio 45102
2189 East Ohio Pike Amelia Ohio 45102
969 State Route 28 Milford Ohio 45150
6465 West Lane Stockton California 95210
5395 Roswell Road Atlanta Georgia 30342
8100 Bellaire Houston Texas 77036
1619 Bridle Path Drive Stockton California 95207
120 East Valley Boulevard San Gabriel California 91776
1513 East 16th Street Yuma Arizona 85365
2221, 2233 and 2269 Rampart Boulevard Las Vegas Nevada 89128
101 - 115 West 79th Street New York New York 10024
520-540 Bergen Boulevard Palisades Park New Jersey 07650
729 Henderson Road Hood River Oregon 97031
211 Route 4 East Paramus New Jersey 07652
5702 Corporate Drive St. Joseph Missouri 64507
1000 Elmwood Park Boulevard Harahan Louisiana 70123
725 South Orange Avenue West Covina California 91790
6040 Beven Street Jefferson Parish Louisiana 70123
4441 Cloud Avenue La Crescenta California 91214
11125 Circle Drive Austin Texas 78736
9289 Branstetter Place Stockton California 95209
22 East 67th Street New York New York 10021
81-95 North Main Street Flemington New Jersey 08822
311 West Main Street Shrewsbury Massachusetts 01545
3310 Elm Road NE Warren Ohio 44483
150 - 220 Trantor Place Staten Island New York 10302
6845 Deerpath Road Elkridge Maryland 21227
2350 and 2450 Montebello Sq. Dr. Colorado Springs Colorado 80909
1950 North 43rd Avenue Phoenix Arizona 85035
1575 Delucci Lane Reno Nevada 89502
7944 Tree Lane Madison Wisconsin 53717
24933 Santa Clara Street Hayward California 94544
15031 West 138th Olathe Kansas 66061
8913-9091 Taft Street Pembroke Pines Florida 33024
950 Northgate Drive San Rafael California 94903
2633 Napoleon Avenue New Orleans Louisiana 70115
10499 Austin Drive Spring Valley California 91978
163-05 and 163-17 Jamaica Avenue Queens New York 11432
107 Forest Brooke Way Delaware Ohio 43015
6700 Santa Rita Road Pleasanton California 94588
110 - 120 South West End Boulevard Quakertown Pennsylvania 18951
3401 Hartzdale Drive Camp Hill Pennsylvania 17011
793 West Bel Air Avenue Aberdeen Maryland 21001
771-785 Anderson Drive, 815-825 Franciscan Drive San Rafael California 94901
820 West Warner Road Chandler Arizona 85224
3500 - 3520 12th Street NE and 1204 Newton Street NE Washington District of Columbia 20017
7475 Stockton Boulevard Sacramento California 95823
1440-91 West Rich Street Columbus Ohio 43223
169 - 187 West Merrick Road Freeport New York 11520
1195 North Watson Road Arlington Texas 76011
417 Margaret Plattsburgh New York 12901
4025 Pleasant Avenue (US 127) Hamilton Ohio 45015
8491 Rhonda Drive Canton Township Michigan 48188
4650 East Lake Mead Boulevard Las Vegas Nevada 89115
851-976 Mount Werner Circle Colorado Springs Colorado 80903
17064 Jefferson Davis Highway Dumfries Virginia 22026
1212 Hancock Street Quincy Massachusetts 02109
2200 Rivers Street San Pablo California 94806
257 West 17th Street New York New York 10011
752-788 Main Street Tooele Utah 84074
3800 Mansell Road Alpharetta Georgia 30022
5661 Westheimer Houston Texas 77056
3900 Richmond Avenue Staten Island New York 10312
25 North Spruce Street Colorado Springs Colorado 80905
1770 - 1776 Boston Post Road Milford Connecticut 06460
4345 South Cobb Drive Smyrna Georgia 30080
1700 South 4th Street Allentown Pennsylvania 18103
636 Eighth Avenue New York New York 10018
3214 West McGraw Street Seattle Washington 98199
3850 Pleasant Hill Road Duluth Georgia 30136
1661 Fifth Street Elko Nevada 89801
3951 Vestal Parkway East Vestal New York 13850
701-727 South Janesville Street Milton Wisconsin 53563
282, 284, 286, 290 and 299 Grand Street New York New York 10002
3650 Habersham Road Atlanta Georgia 30305
2600 - 2602 Jefferson Street Wilmington Delaware 19802
5666 Carpinteria Avenue Carpinteria California 93013
37 Johnson Ferry Road Marietta Georgia 30067
2000 W. 79th St. Chicago Illinois 60620
703 and 707 South West 16th Street Loveland Colorado 80537
9225 East Main Street Mesa Arizona 85207
5171 Brecksville Road Richfield Ohio 44286
52-54 Main Street Bucksport Maine 04416
30-08 30th Avenue Astoria New York 11102
65 Sherman Street Portland Maine 04101
1105 Ronstan Drive Killeen Texas 76542
235 Glenville Road Greenwich Connecticut 06831
7102-7176 Oaklawn Drive San Antonio Texas 78229
2201 Leonard Road Bryan Texas 77801
430 West 7th Street Plainfield New Jersey 07060
8015 Bandera Landing San Antonio Texas 28250
1215 NE 23rd Street Pompano Beach Florida 33064
220 SW 8th Street Pompano Beach Florida 33060
3095 Sterling Circle Boulder Colorado 80301
12 Celina Avenue Nashua New Hampshire 03063
VARIOUS VARIOUS FLORIDA VARIOUS
1924 Pine Loch Terrace Tampa Florida 33613
9135 Talina Lane Tampa Florida 33637
17873-A Thelma Avenue Jupiter Florida 33458
5520 Collins Road Jacksonville Florida 32244
6200 Cypress Point Drive Panama City Beach Florida 32408
17937 Thelma Avenue Jupiter Florida 33458
VARIOUS VARIOUS INDIANA VARIOUS
103 Princeton Court Evansville Indiana 47715
11023 Elmtree Park Drive Indianapolis Indiana 46229
8611 Meadowood Drive Newburgh Indiana 47630
5586 Rosewood Commons Drive Indianapolis Indiana 46254
3008 Acadia Court Bloomington Indiana 47401
5005 East Philadelphia Street Ontario California 91761
VARIOUS VARIOUS FLORIDA VARIOUS
322 South Burkett Avenue Callaway Florida 32404
3291 South Sanford Avenue Sanford Florida 32773
101 East New Hampshire Avenue DeLand Florida 32724
901 & 1003 South Bishop Avenue Rolla Missouri 65401
1670 E. Cheyenne Mountain Boulevard Colorado Springs Colorado 80906
4519 East 82nd Street Indianapolis Indiana 46250
4920 Viceroy Court Cape Coral Florida 33904
505 Williams Street Cheyenne Wyoming 82007
VARIOUS VARIOUS VARIOUS VARIOUS
1122-1168 Keystone Way Carmel Indiana 46032
1391 & 1421 South Rangeline Road Carmel Indiana 46032
1736 C Brownstone Blvd. Toledo Ohio 43614
51 South Champion Street Youngstown Ohio 44503
1347-1394 Bluff Avenue Grandview Heights Ohio 43212
3750 Bauer Drive West Carmel Indiana 46032
5984 Heathmore Drive Indianapolis Indiana 46227
720 Ridgeview Drive Frankfort Kentucky 40601
15871 Swine Creek Road Middlefield Township Ohio 44062
6010 - 221st Place Southeast Issaquah Washington 98027
938 Quail Street Lakewood Colorado 80215
210 Interchange Drive Palm Bay Florida 32907
3787 Willowood Drive Indianapolis Indiana 46236
3500 Washburn Way Klamath Falls Oregon 97603
1835 Highway 95 Bullhead City Arizona 86442
15300 West Colonial Drive Winter Garden Florida 34787
2039 - 2109 Locust Street, S.E. Canal Fulton Ohio 44614
2807-2829 Lower Wetumpka Road Montgomery Alabama 36110
601 South Jason St. Denver Colorado 80223
Mt. Orange Rd. Slate Hill New York 10973
100-228 RHL Boulevard South Charleston West Virginia 25309
8135 RITCHIE HIGHWAY PASADENA MARYLAND 21122
8135 Ritchie Highway Pasadena Maryland 21122
8135 Ritchie Highway Pasadena Maryland 21122
1850 W. Pullman Road (Highway #8) Moscow Idaho 83843
1510 South Melrose Drive Vista California 92083
150 Mount Vernon Street Boston Massachusetts 02125
4250 Veterans Memorial Highway Holbrook New York 11741
2121 Midway Road Carrollton Texas 75006
VARIOUS VARIOUS VARIOUS VARIOUS
160 West 5th South Rexburg Idaho 83440
480 South 100 West Rexburg Idaho 83440
487 South 3rd West Rexburg Idaho 83440
726 First Avenue North Nashville Tennessee 37201
4950 West Kennedy Boulevard Tampa Florida 33609
335 & 336 Center Road Vernon Connecticut 06066
350 North Festival Drive El Paso Texas 79912
6935 Flanders Drive San Diego California 92121
22304-22400 Lake Shore Blvd. Euclid Ohio 44123
1,25, & 77 Sundial Avenue Manchester New Hampshire 03103
1437 Slate Run Road New Albany Indiana 47150
VARIOUS VARIOUS ALABAMA VARIOUS
4600 Sprague Avenue Anniston Alabama 36206
500 Whites Gap Road Jacksonville Alabama 36265
5112 McClellan Boulevard Anniston Alabama 36206
VARIOUS WICHITA KANSAS VARIOUS
925 West 29th Street South Wichita Kansas 67217
1940 South Woodlawn Wichita Kansas 67218
3151 Capital Circle N. E. Tallahassee Florida 32303
176 West Goldfield Avenue Yerington Nevada 89447
VARIOUS VARIOUS VARIOUS VARIOUS
4740 Cemetery Road Hilliard Ohio 43026
32270 Van Dyke Avenue Warren Michigan 48093
67556 Main Street Richmond Michigan 48062
775 Vista Ridge Mall Drive Lewisville Texas 75067
3624 California Avenue Bakersfield California 93309
2336 East Baseline Road Mesa Arizona 85204
VARIOUS VARIOUS VARIOUS VARIOUS
239 West Pittsburgh Road New Castle Pennsylvania 16101
616 Golf Course Road Aliquippa Pennsylvania 15001
32732 Michigan Avenue Wayne Michigan 48184
515 Gardere Lane Baton Rouge Louisiana 70820
1128 Victor St. / 233 & 252 River Street East Lansing Michigan 48823
913 Jan Mar Olathe Kansas 66062
88 & 102 Queen Anne's Court Weymouth Massachusetts 02189
405 West Granada Boulevard Ormand Beach Florida 32174
1401-1419 First Avenue & 92-96Union Street Seattle Washington 98101
12109-12115 Branford Street Sun Valley California 91352
606 East Redbud Drive Stillwater Oklahoma 74075
512 W. Stassney Lane Austin Texas 78745
6330 Polaris Avenue Las Vegas Nevada 89118
104 - 224 Holly Street Nampa Idaho 83651
VARIOUS VARIOUS VARIOUS VARIOUS
3750 Meridian Street South Puyallup Washington 98373
45590 Gratiot Avenue Macomb Michigan 48042
4521 Southside Boulevard Jacksonville Florida 32216
5230 Carroll Canyon Road San Diego California 92121
1770 Hwy 395 Minden Nevada 89423
2850 Adrian Street San Diego California 92110
Indiana Street & Highway 67 Mooresville Indiana 46158
450 & 440 Waverly Avenue Patchogue New York 11772
21101 Voyager Boulevard Land O' Lakes Florida 34639
558-596 Main Street, 2-4 Austin Street & 8-10 Austin Street Worcester Massachusetts 01608
4814 Kristie Drive Del City Oklahoma 73115
118 Colony Drive Jefferson City Tennessee 37760
938-982 Maple Road Amherst New York 14221
14140-14168 Cedar Road University Heights Ohio 44121
39 Forest Avenue Portland Maine 04104
200-231 Harrison Avenue Boston Massachusetts 02111
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
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ORIGINAL
PROPERTY PRINCIPAL
TYPE BORROWER NAME BALANCE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
INDUSTRIAL BORDEAUX PARTNERS LLC 11,700,000
Industrial Bordeaux Partners LLC 4,748,000
Industrial Bordeaux Partners, LLC 6,952,000
Manufactured Housing Carol E. Williams, Kimberly Layne Williams and Dale A. Will 6,850,000
Retail-Single Tenant K-GO, LLC 6,500,000
Office Gloria S. Y. Gee, as Successor Trustee 5,700,000
Manufactured Housing Corrigan Group Two, L.C. 3,150,000
Industrial Red Dog Drive LLC 2,800,000
Manufactured Housing Royal View Gardens, Inc. 2,685,000
Multifamily Henridge Properties, L.P. 2,575,000
HOTEL - LIMITED SERVICE PARLON CORPORATION 2,485,000
Hotel - Limited Service Parlon Corporation 1,883,000
Hotel - Limited Service Parlon Corporation 602,000
Office Asia Fountain Group, Inc. 2,200,000
Manufactured Housing The Vanderhout Family Limited Partnership 2,000,000
Office Arthur Franklin Bridge Testamentary Trust 1,900,000
Multifamily Sandra Court Properties, L.P. 1,560,000
Manufactured Housing Narje, LLC 1,480,000
Industrial W. Roberts Pedrick and Melanie M. Pedrick 1,450,000
Industrial 4140 Lockbourne Limited 1,450,000
Office Southern Station Partnership, Ltd. 1,400,000
Retail-Unanchored West Haven Acquisition, LLC 1,350,000
Manufactured Housing Valley View III 1,300,000
Multifamily Leverington Properties, L.P. 1,056,000
Manufactured Housing Corrigan Group, L.C. 1,050,000
HOTEL - FULL SERVICE CROWN AMERICAN ASSOCIATES AND MARYLAND MOTEL MANAGEMENT, INC $69,450,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 12,500,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 3,400,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 7,200,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 2,700,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 7,600,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 7,500,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 3,900,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 6,500,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 3,250,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 975,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 1,200,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 750,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 5,100,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 4,975,000
Hotel - Full Service Crown American Associates and Maryland Motel Management, Inc 1,900,000
Retail-Anchored Bridgepointe LLC 39,000,000
Office 122 Fifth Associates 27,150,000
Multifamily Ventana Vista Investors Limited Partnership 11,377,000
Retail-Unanchored Leaseback of California II, LLC 11,000,000
Retail-Anchored Munico Associates 10,440,000
Multifamily 310 W 49 St. Assoc. LP and Haga Realty 10,000,000
Retail-Single Tenant Vintage Ranch Properties, L.P. 9,400,000
Retail-Unanchored Mesa Pavilion Associates, LLC 9,200,000
Multifamily Bigelow Arizona Limited Liability Company 8,850,000
Office Phoenix North Star, Ltd. 8,500,000
Retail-Anchored Raydob, L.L.C. 8,240,000
Office Charles County Resources Investors 6,750,000
Retail-Anchored HPM Investments, Inc. 6,500,000
Retail-Unanchored Krinsky-Finkel, LLC 5,925,000
Mixed Use Pascack Industries, Inc. 5,850,000
Hotel - Limited Service Brilliance Investment, LLC 5,865,000
Hotel - Limited Service Airport Investment Company, Inc. 5,800,000
Multifamily Malden Park Place Company, LLC 5,780,000
Multifamily Nashua Plaza Housing Associates Limited Partnership 5,680,000
Hotel - Limited Service AMA Holdings, LLC, SEA Holdings, LLC, DGH Holdings, LLC and 5,500,000
Retail-Unanchored Durango-Twain L.L.C. 5,400,000
Nursing Home, Skilled Healthcare Properties of St. Augustine, Inc. 5,400,000
Mixed Use A.R.B.P., LLC 5,250,000
Office Westmark Industries, LLC 5,200,000
Retail-Anchored Greenway Terrace LLC 5,200,000
Multifamily Bayside Willows, Inc. 5,030,000
Retail-Anchored Westgate Plaza LP 5,000,000
MANUFACTURED HOUSING A/C, INC. 4,885,000
Manufactured Housing A/C, Inc. 2,442,500
Self-Storage A/C, Inc. 557,736
Manufactured Housing A/C, Inc. 1,884,764
Multifamily Westpointe Limited Partnership 4,820,000
Mixed Use Realmark VII, L.P. 4,800,000
Multifamily 8100 Bellaire Corporation 4,700,000
Multifamily Bridle Path Place Limited Partnership 4,590,000
Retail-Unanchored Hawaii Property, Inc. 4,500,000
Hotel - Limited Service PLJV, LLC 4,300,000
Retail-Shadow Anchored Patton Rampart, LLC 4,330,000
Retail-Unanchored Park Belvedere LLC 4,200,000
Mixed Use Boulevard East Associates, Ltd. 4,200,000
Nursing Home, Skilled Hood River Care Associates 4,150,000
Retail-Anchored 221 Route 4 East Corp. 4,150,000
Industrial Migo Limited Liability Company 4,000,000
Industrial 3501 North Causeway Associates 4,000,000
Nursing Home, Skilled Doctor's Hospital of West Covina, Inc. 4,000,000
Industrial Beven Street Properties, LLC 3,970,000
Self-Storage Mini Storage, Ltd. 3,850,000
Nursing Home SB Realty Corporation 3,850,000
Nursing Home Wagner Hts, LLC 3,800,000
Office FREP, LLC 3,780,000
Multifamily Flemington Fidelco, LLC 3,720,000
Assisted Living Facility Highland Holdings, LLC 3,700,000
Nursing Home, Skilled Gillette Associates, Limited Partnership 3,600,000
Multifamily Trantor Realty Associates 3,585,000
Office Peregrine Properties LLC 3,525,000
Retail-Unanchored Ridgeview Plaza 3,500,000
Multifamily Sunplace Investment Associates, LP 3,525,000
Office Meadow Wood Crown Plaza, Inc. 3,500,000
Retail-Unanchored ORC LLC, GMAIN LLC, RMAIN LLC 3,500,000
Retail-Shadow Anchored Atalaya Properties, Inc. 3,500,000
Multifamily Holiday Properties Partnership 3,300,000
Retail-Unanchored ADI Properties and Pembroke Biscayne, LLC 3,200,000
Office Northgate Group, LLC 3,200,000
Office 2633 Napoleon 3,060,000
Self-Storage First European Ventures, LLC 3,100,000
Retail-Unanchored Jamaica Avenue Realty LLC 3,000,000
Multifamily Forest Brooke Apartments LTD 2,800,000
Retail-Unanchored Pleasant Village Associates 2,700,000
Retail-Unanchored Furniture Executives No. 7, L.P. 2,700,000
Retail-Anchored Capital Plaza Associates, LP 2,900,000
Hotel - Full Service Megha, Inc 2,650,000
Retail-Unanchored The Graham Center LLC 2,600,000
Mixed Use 820 West Warner, LLC 2,475,000
Retail-Anchored 12th and Monroe LP 2,300,000
Multifamily Packard Properties, LLC 2,250,000
Multifamily Colonial Square Investor, Ltd. 2,200,000
Retail-Unanchored Elks Plaza LLC 1,900,000
Hotel - Limited Service Kunal Hospitality, L.L.C. 2,160,000
Multifamily JDD, LLC 2,160,000
Retail-Anchored Moskowitz Family II Ltd. 2,100,000
Industrial Two Irish Guys II, LLC 2,100,000
Manufactured Housing Vegas Mobile Park One, L.P. 2,000,000
Multifamily Park Meadows Apartments 1,975,000
Retail-Unanchored VF-Princeton Woods 3, LLC 1,800,000
Office United Real Estate Investors, Inc. 1,800,000
Multifamily Willow Branch Apartments, Inc. 1,700,000
Retail-Single Tenant 257 Associates, LLC 1,675,000
Retail-Unanchored Tooele Centers, LLC 1,650,000
Mixed Use Realmark X, L.L.C. 1,600,000
Retail-Unanchored CP Westheimer LLC 1,550,000
Mixed Use Richmond Avenue Associates 1,500,000
Office Raintree Office Building LLC 1,500,000
Mixed Use 1770 Post Road Associates 1,500,000
Retail-Single Tenant Robert S. and Mary Jane Hakemian 1,500,000
Self-Storage National Self-Storage Associates, L.L.C. 1,485,000
Mixed Use Eighth Avenue Associates 1,500,000
Mixed Use Arthur Van der Wel 1,400,000
Mixed Use Realmark IX, L.L.C. 1,408,000
Multifamily Ernest and Betty Vandegrift 1,400,000
Retail-Unanchored Colonial Properties, LLC 1,400,000
Retail-Anchored Milton Development, LTD 1,360,000
Mixed Use Roman Realty Co., LLC and Dora Straus Family LP Association 1,300,000
Mixed Use Realmark Habersham, L.L.C. 1,200,000
Multifamily Sudler Partnership 1,160,000
Self-Storage Carpinteria Self Storage LLC 1,150,000
Mixed Use Realmark I, Ltd. 1,100,000
Retail-Unanchored Parkway Bank & Trust Company Trust #11604 1,088,000
Multifamily Blutegel 3, LLP 1,060,000
Manufactured Housing AGA Property Management LLC 1,000,000
Hotel - Limited Service BCAM Corp. 1,000,000
Hotel - Limited Service Bucksport Motel Properties, Inc. 875,000
Retail-Single Tenant 30-08 Realty Corp. 862,000
Multifamily HCR Properties Limited Liability Company 636,000
Multifamily Killeen Hillcrest, LTD 650,000
Office Joan S. Orlovitz 615,000
Mixed Use Commerce Oaklawn, LTD 600,000
Manufactured Housing Eight Star Corporation 525,000
Multifamily Parkchester, Inc. 500,000
Retail-Unanchored South Bend Development Inc. 500,000
Multifamily Luis and Neyda Jimenez 312,000
Multifamily Aurelain and Maria Victoria Gava 304,000
Industrial Neico Investments, LLC 300,000
Industrial Berkshire-Nashua, L.L.C. 12,350,000
MULTIFAMILY VARIOUS 8,546,250
Multifamily Pine Lake Apartments, Ltd. 660,000
Multifamily Terrace Trace Apartments, Ltd. 1,650,000
Multifamily Lexford FLKB, L.L.C. 1,650,000
Multifamily Rivers End Apartments, Ltd. 1,417,500
Multifamily Cypress Apartments, Ltd. 1,432,500
Multifamily Lexford FLKB II L.L.C. 1,736,250
MULTIFAMILY VARIOUS 6,862,000
Multifamily Princeton Court Apartments of Evansville, Ltd. 917,000
Multifamily Elmtree Park Apartments of Indianapolis, II, LP 947,000
Multifamily Meadowood Apartments of Warrick County, Ltd. 993,000
Multifamily Rosewood Commons Apartments ofIndianapolis, Ltd. 1,887,000
Multifamily Acadia Court Apartments of Bloomington, Ltd. 2,118,000
Industrial Laguna Properties Limited Partnership 6,675,000
MULTIFAMILY VARIOUS 6,195,000
Multifamily Pine Terrace Apartments, Ltd. 2,193,000
Multifamily Sanford Court Investors, Ltd. 1,782,000
Multifamily Applewood Apartments, LTD. 2,220,000
Retail-Anchored Phybell Development Corporation 5,000,000
Retail-Anchored Dial Realty-Cheyenne Mountain,L.L.C. 4,890,000
Congregate Care Residential Care I, L.L.C. 3,600,000
Assisted Living Facility Juniper Eventide, L.P. 3,350,000
Manufactured Housing Cheyenne MHP, Limited 2,800,000
RETAIL-ANCHORED BARNES INVESTMENT II COMPANY 2,500,000
Retail-Anchored Barnes Investment II Company 1,395,349
Retail-Unanchored Barnes Investment II Company 1,104,651
Multifamily Meldon Place Apartments of Toledo, Ltd. 2,418,750
Office Tri-State Plaza Place Limited Partnership 2,200,000
Multifamily Jamestown Apartments Corp. 2,000,000
Self-Storage Carmel Self Storage, LLC 1,900,000
Multifamily Heathmoore Apartments of Indianapolis, II, Inc. 1,649,000
Multifamily Winthrop Court Apartments of Frankfort, Ltd. 1,500,000
Manufactured Housing Middlefield Properties, LLC 1,500,000
Industrial KALE, LLC 1,290,000
Office Quail Street Company LLC 1,275,000
Multifamily Palm Side Apartments, Ltd. 1,162,000
Multifamily Willowood East Apartments of Indianapolis, Ltd. 1,031,000
Retail-Single Tenant No Apples I - Klamath Falls, L.L.C. 952,000
Retail-Single Tenant No Apples I - Bullhead City, L.L.C. 948,000
Multifamily Winter Woods Apartments II, Ltd. 866,000
Retail-Unanchored Galen M. Oakes and Beulah Oakes 750,000
Retail-Unanchored Park Plaza Associates, Ltd. 750,000
Industrial The Jason Company L.L.C. 675,000
Manufactured Housing Geoffrey Boynton and Nancy Boynton 350,000
Retail-Anchored THF-D Charleston Development Limited Liability Company 17,550,000
VARIOUS FESTIVAL PASADENA ASSOCIATES, L.P., ET AL. 11,680,000
Retail-Anchored Festival Pasadena Associates, L.P., et al. 9,280,000
Office Festival Pasadena Associates, L.P., et al. 2,400,000
Retail-Anchored Palouse Empire Mall Associates 11,500,000
Multifamily HCA Shadowridge Heights LLC 10,700,000
Office Bayside Merchandise Mart Limited Partnership 10,425,000
Office 4250 Vets Highway, LLC 8,462,000
Office JLH Properties, Inc. 5,800,000
MULTIFAMILY CORPORATE PLAZA LIMITED 5,765,000
Multifamily Corporate Plaza Limited 1,123,052
Multifamily Corporate Plaza Limited 2,770,195
Multifamily Corporate Plaza Limited 1,871,753
Multifamily Riverfront Partnership 4,875,000
Office Kennedy Square Investors, L.C. 4,825,000
Multifamily JCM Associates, L.L.C. 4,460,000
Multifamily Merit El Paso Apartments Limited Partnership 4,400,000
Industrial KCSD Limited Partnership 4,369,000
Retail-Anchored Miles G. Carter, an Individual 4,300,000
Office Haverford-Hathaway, LLC 4,200,000
Multifamily The Sprigler Family Limited Partnership 4,100,000
MULTIFAMILY VARIOUS 3,699,000
Multifamily Colonial Park Apartments, LLC. 1,475,000
Multifamily Jackson Trace Apartments, LLC 1,224,000
Multifamily Fox Valley Apartments, LLC 1,000,000
MULTIFAMILY THE MARTYNES FAMILY TRUST 3,415,000
Multifamily The Martynes Family Trust 2,015,000
Multifamily The Martynes Family Trust 1,400,000
Retail-Single Tenant The Richard C. Dunsay Real Property Trust 3,360,000
Retail-Anchored Yerington Shopping Center, LLC 3,316,200
RETAIL-SINGLE TENANT CAPTEC FRANCHISE CAPITAL PARNERS L.P. IV 3,276,000
Retail-Single Tenant Captec Franchise Capital Parners L.P. IV 465,047
Retail-Single Tenant Captec Franchise Capital Parners L.P. IV 377,205
Retail-Single Tenant Captec Franchise Capital Parners L.P. IV 382,372
Retail-Single Tenant Captec Franchise Capital Parners L.P. IV 981,767
Retail-Single Tenant Captec Franchise Capital Parners L.P. IV 601,978
Retail-Single Tenant Captec Franchise Capital Parners L.P. IV 467,631
NURSING HOME TRADE AROUND THE WORLD OF PENNSYLVANIA, INC. 3,080,000
Nursing Home Trade Around the World of Pennsylvania, Inc. 1,464,262
Nursing Home Trade Around the World of Pennsylvania, Inc. 1,615,738
Retail-Single Tenant Chicago Salvage Stock Stores, Inc. 3,050,000
Multifamily Teakwood Village, L.L.C. 3,035,000
Multifamily Vaer Associates, L.L.C. 3,000,000
Multifamily Olathe Duplexes, LLC 3,000,000
Multifamily Q.A. V Limited Partnership, a Mass. Limited Partnership 2,851,000
Retail-Single Tenant The Richard C. Dunsay Real Property Trust 2,825,000
Retail-Unanchored Harbor Properties, Inc. 2,800,000
Industrial Branford Investments, LLC 2,500,000
Multifamily Linden Investments, L.L.C. 2,414,000
Retail-Unanchored Cedar Contracting, Inc. d/b/a Cedar Corporation 2,239,000
Industrial The Louis Somers and Debra Somers 1993 Living Trust 2,100,000
Retail-Anchored Bonanza Investments, LLC 2,025,000
RETAIL-UNANCHORED CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III 1,994,000
Retail-Unanchored Captec Franchise Capital Partners L.P. III 690,231
Retail-Unanchored Captec Franchise Capital Partners L.P. III 409,026
Retail-Unanchored Captec Franchise Capital Partners L.P. III 894,744
Office Downtown Properties Development Corporation 1,975,000
Retail-Unanchored James W. Winans and Ruth C. Winans 1,763,000
Multifamily Edwina N. Decker Trust 1,700,000
Retail-Unanchored TKC Properties, LLC 1,668,000
Office Waverly Plaza LLC 1,550,000
Multifamily LOL Village Limited Partnership 1,460,000
Multifamily Pacific Land LLC 1,433,000
Multifamily Coolidge-Kristie Equities, L.L.C. 1,300,000
Manufactured Housing Paradise Pointe, L.L.C. 1,181,000
Retail-Unanchored Boardwalk Boutiques Partnership 1,185,000
Multifamily Erez Ltd. 1,148,000
Office 39 Forest Avenue LLC 1,128,000
Multifamily 231 Harrison Avenue Limited Partnership 1,000,000
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
1ST INT.
GROSS NET & PRIN. INTEREST
CUT-OFF DATE LOAN MORTGAGE MORTGAGE NOTE PAYMENT ACCRUAL DUE
BALANCE TYPE RATE RATE DATE DATE METHOD DATE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
11,676,920 FIXED 7.7700% 7.6770% 04/08/99 06/01/99 ACTUAL / 360 1
4,738,634 Fixed 7.7700% 7.6770% 04/08/99 06/01/99 Actual / 360 1
6,938,286 Fixed 7.7700% 7.6770% 04/08/99 06/01/99 Actual / 360 1
6,605,927 Fixed 8.3770% 8.2240% 10/02/95 12/01/95 Actual / 360 1
6,469,716 Fixed 7.7500% 7.6570% 03/30/99 05/01/99 Actual / 360 1
5,693,384 Fixed 7.8750% 7.7820% 04/21/99 06/01/99 Actual / 360 1
3,145,355 Fixed 8.8000% 8.6870% 03/10/99 05/01/99 Actual / 360 1
2,780,734 Fixed 7.3750% 7.2720% 12/16/98 02/01/99 Actual / 360 1
2,682,184 Fixed 8.2500% 8.1170% 04/16/99 06/01/99 Actual / 360 1
2,569,770 Fixed 7.5000% 7.4070% 03/24/99 05/01/99 Actual / 360 1
2,474,078 FIXED 8.8000% 8.6670% 03/03/99 05/01/99 ACTUAL / 360 1
1,874,724 Fixed 8.8000% 8.6670% 03/03/99 05/01/99 Actual / 360 1
599,354 Fixed 8.8000% 8.6670% 03/03/99 05/01/99 Actual / 360 1
2,084,890 Fixed 7.2500% 7.1570% 11/25/98 01/01/99 Actual / 360 1
1,997,309 Fixed 7.3000% 7.1670% 04/19/99 06/01/99 Actual / 360 1
1,878,013 Fixed 7.2500% 7.1570% 08/14/98 10/01/98 Actual / 360 1
1,556,832 Fixed 7.5000% 7.4070% 03/24/99 05/01/99 Actual / 360 1
1,475,758 Fixed 8.1600% 8.0270% 03/19/99 05/01/99 Actual / 360 1
1,444,219 Fixed 7.7500% 7.6570% 03/03/99 04/01/99 Actual / 360 1
1,437,802 Fixed 7.2500% 7.1570% 12/29/98 02/01/99 Actual / 360 1
1,386,798 Fixed 7.2500% 7.0970% 01/26/99 03/01/99 Actual / 360 1
1,348,692 Fixed 8.5000% 8.3970% 05/04/99 07/01/99 Actual / 360 1
1,295,108 Fixed 7.5000% 7.4070% 01/05/99 03/01/99 Actual / 360 1
1,053,855 Fixed 7.5000% 7.4070% 03/24/99 05/01/99 Actual / 360 1
1,048,401 Fixed 8.6750% 8.5420% 03/02/99 05/01/99 Actual / 360 1
$69,289,658 FIXED 8.0800% 8.0270% 05/03/99 06/01/99 ACTUAL / 360 1
12,471,141 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
3,392,150 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
7,183,377 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
2,693,766 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
7,582,454 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
7,482,684 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
3,890,996 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
6,484,993 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
3,242,497 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
972,749 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
1,197,230 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
748,268 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
5,088,225 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
4,963,514 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
1,895,613 Fixed 8.0800% 8.0270% 05/03/99 06/01/99 Actual / 360 1
38,921,165 Fixed 7.5200% 7.4670% 03/26/99 05/01/99 Actual / 360 1
27,098,390 Fixed 7.7800% 7.7270% 03/04/99 05/01/99 Actual / 360 1
11,353,185 Fixed 7.3700% 7.3170% 03/29/99 05/01/99 Actual / 360 1
10,899,246 Fixed 7.0700% 7.0170% 06/30/98 09/01/98 30 / 360 1
10,355,992 Fixed 7.2500% 7.1970% 11/11/98 01/01/99 Actual / 360 1
9,875,416 Fixed 7.0900% 7.0370% 03/04/98 05/01/98 Actual / 360 1
9,334,620 Fixed 8.0800% 8.0270% 11/02/98 01/01/99 Actual / 360 1
9,124,979 Fixed 6.2700% 6.2170% 09/11/98 11/01/98 Actual / 360 1
8,735,526 Fixed 6.9000% 6.8470% 08/28/98 10/01/98 Actual / 360 1
8,483,996 Fixed 7.8200% 7.7170% 03/16/99 05/01/99 Actual / 360 1
8,166,546 Fixed 7.2000% 7.1470% 07/30/98 09/01/98 Actual / 360 1
6,695,418 Fixed 8.0500% 7.9970% 10/29/98 12/01/98 Actual / 360 1
6,367,553 Fixed 7.5500% 7.4970% 07/28/98 09/01/98 30 / 360 1
5,890,277 Fixed 7.4100% 7.3570% 01/15/99 03/01/99 Actual / 360 1
5,810,908 Fixed 7.5500% 7.4970% 12/30/98 02/01/99 Actual / 360 1
5,796,232 Fixed 7.5000% 7.4470% 08/17/98 10/01/98 30 / 360 1
5,754,326 Fixed 8.2000% 8.0970% 10/30/98 12/01/98 Actual / 360 1
5,733,819 Fixed 6.9000% 6.8470% 08/27/98 10/01/98 Actual / 360 1
5,654,423 Fixed 7.8400% 7.7370% 11/30/98 01/01/99 Actual / 360 1
5,391,074 Fixed 7.7500% 7.6970% 07/13/98 09/01/98 Actual / 360 1
5,369,824 Fixed 7.7100% 7.6570% 01/20/99 03/01/99 Actual / 360 1
5,350,286 Fixed 7.3000% 7.2470% 10/13/98 12/01/98 Actual / 360 1
5,203,290 Fixed 7.2100% 7.1570% 07/31/98 09/01/98 Actual / 360 1
5,137,311 Fixed 7.0100% 6.9570% 08/28/98 10/01/98 Actual / 360 1
5,133,243 Fixed 6.9500% 6.8970% 08/22/98 10/01/98 Actual / 360 1
4,976,186 Fixed 7.1250% 7.0720% 05/12/98 07/01/98 Actual / 360 1
4,930,706 Fixed 7.6250% 7.5720% 12/31/97 02/01/98 Actual / 360 1
4,846,563 FIXED 6.9700% 6.9170% 08/20/98 10/01/98 ACTUAL / 360 1
2,423,281 Fixed 6.9700% 6.9170% 08/20/98 10/01/98 Actual / 360 1
553,348 Fixed 6.9700% 6.9170% 08/20/98 10/01/98 Actual / 360 1
1,869,934 Fixed 6.9700% 6.9170% 08/20/98 10/01/98 Actual / 360 1
4,782,167 Fixed 6.8200% 6.7670% 09/21/98 11/01/98 Actual / 360 1
4,748,282 Fixed 7.0000% 6.9470% 09/19/98 11/01/98 Actual / 360 1
4,654,483 Fixed 7.0000% 6.9470% 10/08/98 12/01/98 Actual / 360 1
4,553,973 Fixed 6.8200% 6.7670% 09/21/98 11/01/98 Actual / 360 1
4,417,440 Fixed 7.6250% 7.5720% 08/18/98 10/01/98 Actual / 360 1
4,234,690 Fixed 7.6250% 7.5720% 08/27/98 10/01/98 Actual / 360 1
4,201,787 Fixed 6.7500% 6.6970% 09/15/98 11/01/98 Actual / 360 1
4,192,016 Fixed 7.7800% 7.7270% 03/23/99 05/01/99 Actual / 360 1
4,162,310 Fixed 7.4500% 7.3970% 10/15/98 12/01/98 Actual / 360 1
4,125,787 Fixed 7.3500% 7.2970% 10/05/98 12/01/98 Actual / 360 1
4,103,282 Fixed 7.4100% 7.3570% 08/28/98 10/01/98 Actual / 360 1
3,991,876 Fixed 7.5000% 7.4470% 03/05/99 05/01/99 Actual / 360 1
3,968,418 Fixed 7.3600% 7.3070% 11/04/98 01/01/99 Actual / 360 1
3,951,249 Fixed 8.7500% 8.6970% 10/15/98 12/01/98 Actual / 360 1
3,949,489 Fixed 7.6100% 7.5070% 03/23/99 05/01/99 Actual / 360 1
3,807,107 Fixed 7.4700% 7.4170% 08/27/98 10/01/98 Actual / 360 1
3,804,527 Fixed 7.5000% 7.4470% 08/17/98 10/01/98 Actual / 360 1
3,754,256 Fixed 7.3750% 7.3220% 08/21/98 10/01/98 Actual / 360 1
3,725,063 Fixed 7.2500% 7.1970% 06/19/98 08/01/98 Actual / 360 1
3,690,066 Fixed 7.2500% 7.1970% 11/02/98 01/01/99 Actual / 360 1
3,675,856 Fixed 7.8000% 7.7470% 08/07/98 10/01/98 Actual / 360 1
3,548,140 Fixed 7.8750% 7.8220% 05/26/98 07/01/98 Actual / 360 1
3,530,827 Fixed 7.0000% 6.9470% 06/06/98 08/01/98 Actual / 360 1
3,481,424 Fixed 7.2000% 7.1470% 08/13/98 10/01/98 Actual / 360 1
3,481,297 Fixed 7.9900% 7.9370% 01/13/99 03/01/99 Actual / 360 1
3,479,404 Fixed 6.9000% 6.8470% 08/28/98 10/01/98 Actual / 360 1
3,475,917 Fixed 7.3750% 7.3220% 12/07/98 02/01/99 Actual / 360 1
3,473,194 Fixed 6.9500% 6.8970% 09/30/98 11/01/98 Actual / 360 1
3,465,500 Fixed 7.1400% 7.0870% 06/10/98 08/01/98 Actual / 360 1
3,252,671 Fixed 7.0950% 7.0420% 01/26/98 03/01/98 30 / 360 1
3,173,843 Fixed 7.1500% 7.0970% 08/13/98 10/01/98 30 / 360 1
3,173,072 Fixed 7.5000% 7.4470% 07/08/98 09/01/98 Actual / 360 1
3,038,678 Fixed 8.0700% 7.9670% 11/16/98 01/01/99 Actual / 360 1
3,018,094 Fixed 7.3750% 7.3220% 04/06/98 06/01/98 Actual / 360 1
2,963,194 Fixed 7.2500% 7.1970% 08/24/98 10/01/98 Actual / 360 1
2,771,406 Fixed 7.0000% 6.9470% 10/23/98 12/01/98 Actual / 360 1
2,695,013 Fixed 7.9000% 7.7970% 03/09/99 05/01/99 Actual / 360 1
2,681,388 Fixed 8.1300% 8.0270% 11/25/98 01/01/99 Actual / 360 1
2,679,783 Fixed 7.1250% 7.0720% 03/31/98 05/01/98 Actual / 360 1
2,634,333 Fixed 8.2700% 8.1670% 12/30/98 02/01/99 Actual / 360 1
2,541,864 Fixed 7.6250% 7.5720% 08/17/98 10/01/98 Actual / 360 1
2,444,311 Fixed 7.3500% 7.2970% 07/17/98 09/01/98 Actual / 360 1
2,278,281 Fixed 7.1500% 7.0970% 09/29/98 12/01/98 Actual / 360 1
2,230,487 Fixed 6.9000% 6.8470% 07/21/98 09/01/98 Actual / 360 1
2,160,339 Fixed 7.4600% 7.4070% 08/07/98 10/01/98 Actual / 360 1
2,155,348 Fixed 8.8750% 8.8220% 06/24/97 08/01/97 30 / 360 1
2,154,168 Fixed 8.4800% 8.4270% 03/23/99 05/01/99 Actual / 360 1
2,150,183 Fixed 7.8000% 7.7470% 10/30/98 01/01/99 Actual / 360 1
2,083,818 Fixed 7.5000% 7.4470% 11/03/98 01/01/99 Actual / 360 1
2,072,212 Fixed 7.3300% 7.2770% 07/02/98 09/01/98 Actual / 360 1
1,992,133 Fixed 7.8200% 7.7670% 02/09/99 04/01/99 Actual / 360 1
1,932,762 Fixed 7.5000% 7.2670% 11/12/97 01/01/98 Actual / 360 1
1,795,528 Fixed 7.6400% 7.5370% 02/24/99 04/01/99 Actual / 360 1
1,790,242 Fixed 7.9000% 7.8470% 01/26/99 03/01/99 Actual / 360 1
1,681,899 Fixed 7.1500% 7.0970% 05/12/98 07/01/98 Actual / 360 1
1,665,010 Fixed 7.2500% 7.1970% 10/23/98 12/01/98 Actual / 360 1
1,618,825 Fixed 7.3750% 7.3220% 08/28/98 10/01/98 Actual / 360 1
1,582,761 Fixed 7.0000% 6.9470% 09/19/98 11/01/98 Actual / 360 1
1,535,609 Fixed 7.2500% 7.1970% 10/29/98 12/01/98 Actual / 360 1
1,494,291 Fixed 7.9900% 7.9370% 02/24/99 04/01/99 Actual / 360 1
1,484,789 Fixed 7.3500% 7.2970% 09/24/98 11/01/98 Actual / 360 1
1,482,493 Fixed 7.2000% 7.1470% 08/14/98 10/01/98 Actual / 360 1
1,480,704 Fixed 7.2500% 7.1970% 11/11/98 01/01/99 Actual / 360 1
1,478,602 Fixed 7.3400% 7.2870% 02/24/99 04/01/99 Actual / 360 1
1,472,071 Fixed 7.5000% 7.4470% 08/27/98 10/01/98 Actual / 360 1
1,393,265 Fixed 8.6300% 8.5770% 12/31/98 03/01/99 30 / 360 1
1,392,830 Fixed 7.0000% 6.9470% 09/19/98 11/01/98 Actual / 360 1
1,390,332 Fixed 8.1200% 8.0670% 11/10/98 01/01/99 Actual / 360 1
1,373,704 Fixed 8.2300% 7.9970% 11/04/97 01/01/98 Actual / 360 1
1,342,471 Fixed 7.5000% 7.4470% 07/10/98 09/01/98 Actual / 360 1
1,284,575 Fixed 7.4700% 7.4170% 08/27/98 10/01/98 Actual / 360 1
1,187,071 Fixed 7.0000% 6.9470% 09/19/98 11/01/98 Actual / 360 1
1,150,115 Fixed 7.7500% 7.6970% 10/30/98 12/01/98 Actual / 360 1
1,129,992 Fixed 7.1250% 7.0720% 09/23/98 11/01/98 Actual / 360 1
1,088,148 Fixed 7.0000% 6.9470% 09/19/98 11/01/98 Actual / 360 1
1,086,058 Fixed 8.0400% 7.9870% 03/11/99 05/01/99 Actual / 360 1
1,047,734 Fixed 7.2500% 7.1970% 08/05/98 10/01/98 Actual / 360 1
989,760 Fixed 7.9500% 7.8970% 08/17/98 10/01/98 Actual / 360 1
985,367 Fixed 8.1900% 8.1370% 09/15/98 11/01/98 Actual / 360 1
867,412 Fixed 9.2000% 9.1470% 12/08/98 02/01/99 Actual / 360 1
857,919 Fixed 8.2600% 8.2070% 03/26/99 05/01/99 Actual / 360 1
628,783 Fixed 9.3750% 9.3220% 05/18/98 07/01/98 Actual / 360 1
621,602 Fixed 8.3100% 8.0770% 11/04/97 01/01/98 Actual / 360 1
606,036 Fixed 8.2200% 8.1670% 09/08/98 11/01/98 Actual / 360 1
594,311 Fixed 7.7300% 7.6770% 09/23/98 11/01/98 Actual / 360 1
523,136 Fixed 8.3400% 8.2870% 02/05/99 04/01/99 Actual / 360 1
492,386 Fixed 7.8900% 7.8370% 09/11/98 11/01/98 Actual / 360 1
490,092 Fixed 8.4700% 8.4170% 11/04/98 01/01/99 30 / 360 1
309,238 Fixed 8.1100% 8.0570% 09/23/98 11/01/98 Actual / 360 1
300,944 Fixed 7.4000% 7.3470% 09/16/98 11/01/98 Actual / 360 1
295,304 Fixed 7.6800% 7.6270% 09/10/98 11/01/98 Actual / 360 1
12,341,663 Fixed 7.9700% 7.9170% 05/13/99 07/01/99 Actual / 360 1
8,528,055 FIXED 7.3700% 7.3016% 04/28/99 06/01/99 ACTUAL / 360 1
658,595 Fixed 7.3700% 7.1170% 04/28/99 06/01/99 Actual / 360 1
1,646,487 Fixed 7.3700% 7.3170% 04/28/99 06/01/99 Actual / 360 1
1,646,487 Fixed 7.3700% 7.3170% 04/28/99 06/01/99 Actual / 360 1
1,414,482 Fixed 7.3700% 7.3170% 04/28/99 06/01/99 Actual / 360 1
1,429,450 Fixed 7.3700% 7.3170% 04/28/99 06/01/99 Actual / 360 1
1,732,554 Fixed 7.3700% 7.3170% 04/28/99 06/01/99 Actual / 360 1
6,816,528 FIXED 7.6000% 7.5470% 12/31/98 02/01/99 ACTUAL / 360 1
910,923 Fixed 7.6000% 7.5470% 12/31/98 02/01/99 Actual / 360 1
940,725 Fixed 7.6000% 7.5470% 12/31/98 02/01/99 Actual / 360 1
986,420 Fixed 7.6000% 7.5470% 12/31/98 02/01/99 Actual / 360 1
1,874,496 Fixed 7.6000% 7.5470% 12/31/98 02/01/99 Actual / 360 1
2,103,965 Fixed 7.6000% 7.5470% 12/31/98 02/01/99 Actual / 360 1
6,664,037 Fixed 7.6900% 7.6370% 04/22/99 06/01/99 Actual / 360 1
6,153,948 FIXED 7.6000% 7.5470% 12/31/98 02/01/99 ACTUAL / 360 1
2,178,468 Fixed 7.6000% 7.5470% 12/31/98 02/01/99 Actual / 360 1
1,770,191 Fixed 7.6000% 7.5470% 12/31/98 02/01/99 Actual / 360 1
2,205,289 Fixed 7.6000% 7.5470% 12/31/98 02/01/99 Actual / 360 1
4,978,092 Fixed 7.2500% 7.1970% 02/01/99 04/01/99 Actual / 360 1
4,853,905 Fixed 6.9500% 6.8970% 12/07/98 02/01/99 Actual / 360 1
3,566,971 Fixed 7.8000% 7.7470% 01/15/99 03/01/99 Actual / 360 1
3,326,017 Fixed 7.7300% 7.6770% 07/15/98 09/01/98 Actual / 360 1
2,796,884 Fixed 7.6500% 7.5970% 05/21/99 07/01/99 Actual / 360 1
2,445,523 FIXED 7.5000% 7.4470% 01/26/99 03/01/99 ACTUAL / 360 1
1,364,943 Fixed 7.5000% 7.4470% 01/26/99 03/01/99 Actual / 360 1
1,080,580 Fixed 7.5000% 7.4470% 01/26/99 03/01/99 Actual / 360 1
2,413,601 Fixed 7.3700% 7.3170% 04/28/99 06/01/99 Actual / 360 1
2,194,346 Fixed 8.7400% 8.6870% 03/31/99 05/01/99 Actual / 360 1
1,982,125 Fixed 7.1000% 7.0470% 06/26/98 08/01/98 Actual / 360 1
1,894,604 Fixed 8.2100% 8.1570% 03/26/99 05/01/99 Actual / 360 1
1,638,073 Fixed 7.6000% 7.5470% 12/31/98 02/01/99 Actual / 360 1
1,496,807 Fixed 7.3700% 7.3170% 04/28/99 06/01/99 Actual / 360 1
1,491,671 Fixed 7.7500% 7.6970% 01/21/99 03/01/99 Actual / 360 1
1,282,547 Fixed 7.5000% 7.4470% 01/21/99 03/01/99 Actual / 360 1
1,267,409 Fixed 7.3100% 7.2570% 02/02/99 03/01/99 Actual / 360 1
1,154,300 Fixed 7.6000% 7.5470% 12/31/98 02/01/99 Actual / 360 1
1,024,168 Fixed 7.6000% 7.5470% 12/31/98 02/01/99 Actual / 360 1
945,849 Fixed 7.7500% 7.4970% 12/11/98 02/01/99 Actual / 360 1
941,875 Fixed 7.7500% 7.4970% 12/04/98 02/01/99 Actual / 360 1
860,261 Fixed 7.6000% 7.5470% 12/31/98 02/01/99 Actual / 360 1
748,607 Fixed 8.0800% 7.8270% 04/22/99 06/01/99 Actual / 360 1
745,154 Fixed 7.7500% 7.4970% 12/31/98 02/01/99 Actual / 360 1
673,819 Fixed 8.3800% 8.1270% 04/12/99 06/01/99 Actual / 360 1
349,619 Fixed 8.5000% 8.2470% 05/14/99 07/01/99 Actual / 360 1
17,536,726 Fixed 8.0000% 7.9170% 05/19/99 07/01/99 30 / 360 1
11,635,676 FIXED 7.4500% 7.3470% 02/01/99 03/01/99 30 / 360 1
9,244,784 Fixed 7.4500% 7.3470% 02/01/99 03/01/99 30 / 360 1
2,390,892 Fixed 7.4500% 7.3470% 02/01/99 03/01/99 30 / 360 1
11,479,097 Fixed 7.7500% 7.6970% 05/18/99 07/01/99 Actual / 360 1
10,620,679 Fixed 6.4700% 6.3670% 10/02/98 12/01/98 30 / 360 1
10,391,638 Fixed 7.9500% 7.8970% 03/02/99 05/01/99 Actual / 360 1
8,456,391 Fixed 8.0600% 8.0070% 05/13/99 07/01/99 30 / 360 1
5,792,273 Fixed 8.3300% 8.2770% 05/24/99 07/01/99 30 / 360 1
5,756,330 FIXED 7.4500% 7.3470% 04/02/99 06/01/99 30 / 360 1
1,121,363 Fixed 7.4500% 7.3470% 04/02/99 06/01/99 30 / 360 1
2,766,029 Fixed 7.4500% 7.3470% 04/02/99 06/01/99 30 / 360 1
1,868,938 Fixed 7.4500% 7.3470% 04/02/99 06/01/99 30 / 360 1
4,863,747 Fixed 7.3500% 7.2470% 03/25/99 05/01/99 30 / 360 1
4,804,993 Fixed 8.1500% 8.0970% 02/26/99 04/01/99 30 / 360 1
4,422,775 Fixed 6.4800% 6.4270% 09/09/98 11/01/98 30 / 360 1
4,390,221 Fixed 7.5400% 7.4870% 03/04/99 05/01/99 30 / 360 1
4,304,366 Fixed 6.5300% 6.4770% 05/29/98 02/01/99 30 / 360 1
4,240,889 Fixed 7.1100% 7.0570% 07/23/98 09/01/98 30 / 360 1
4,182,641 Fixed 8.1700% 8.0670% 02/24/99 04/01/99 30 / 360 1
4,090,227 Fixed 7.2400% 7.1870% 04/27/99 06/01/99 30 / 360 1
3,681,373 FIXED 7.2814% 7.2284% VARIOUS 04/01/99 30 / 360 1
1,467,914 Fixed 7.2300% 7.1770% 02/01/99 04/01/99 30 / 360 1
1,218,120 Fixed 7.2300% 7.1770% 02/01/99 04/01/99 30 / 360 1
995,339 Fixed 7.4200% 7.3670% 02/03/99 04/01/99 30 / 360 1
3,411,553 FIXED 8.2500% 8.1970% VARIOUS 07/01/99 30 / 360 1
2,012,966 Fixed 8.2500% 8.1970% 05/17/99 07/01/99 30 / 360 1
1,398,587 Fixed 8.2500% 8.1970% 05/17/99 07/01/99 30 / 360 1
3,352,502 Fixed 7.5200% 7.4170% 03/22/99 05/01/99 30 / 360 1
3,309,161 Fixed 7.7700% 7.6670% 03/02/99 05/01/99 30 / 360 1
3,276,000 FIXED 8.5000% 8.4470% 03/26/99 05/01/01 30 / 360 1
465,047 Fixed 8.5000% 8.4470% 03/26/99 05/01/01 30 / 360 1
377,205 Fixed 8.5000% 8.4470% 03/26/99 05/01/01 30 / 360 1
382,372 Fixed 8.5000% 8.4470% 03/26/99 05/01/01 30 / 360 1
981,767 Fixed 8.5000% 8.4470% 03/26/99 05/01/01 30 / 360 1
601,978 Fixed 8.5000% 8.4470% 03/26/99 05/01/01 30 / 360 1
467,631 Fixed 8.5000% 8.4470% 03/26/99 05/01/01 30 / 360 1
3,055,911 FIXED 8.7700% 8.7170% 01/28/99 03/01/99 30 / 360 1
1,452,810 Fixed 8.7700% 8.7170% 01/28/99 03/01/99 30 / 360 1
1,603,101 Fixed 8.7700% 8.7170% 01/28/99 03/01/99 30 / 360 1
3,047,856 Fixed 7.7700% 7.7170% 05/19/99 07/01/99 30 / 360 1
3,024,853 Fixed 7.6800% 7.6270% 03/19/99 05/01/99 30 / 360 1
2,995,501 Fixed 7.2500% 7.1970% 04/26/99 06/01/99 Actual / 360 1
2,979,245 Fixed 7.9300% 7.8770% 02/11/99 04/01/99 30 / 360 1
2,845,397 Fixed 7.6400% 7.5870% 03/02/99 05/01/99 Actual / 360 1
2,818,696 Fixed 7.5200% 7.4170% 03/22/99 05/01/99 30 / 360 1
2,791,627 Fixed 8.3700% 8.3170% 03/18/99 05/01/99 30 / 360 1
2,486,914 Fixed 8.1100% 7.9570% 01/27/99 03/01/99 30 / 360 1
2,409,871 Fixed 7.9400% 7.8870% 05/20/99 07/01/99 30 / 360 1
2,229,761 Fixed 8.1800% 8.0770% 02/09/99 04/01/99 30 / 360 1
2,089,180 Fixed 7.9600% 7.8570% 03/30/99 05/01/99 30 / 360 1
2,022,857 Fixed 7.9600% 7.9070% 05/05/99 07/01/99 30 / 360 1
1,994,000 FIXED 8.5000% 8.4470% 03/26/99 05/01/01 30 / 360 1
690,231 Fixed 8.5000% 8.4470% 03/26/99 05/01/01 30 / 360 1
409,026 Fixed 8.5000% 8.4470% 03/26/99 05/01/01 30 / 360 1
894,744 Fixed 8.5000% 8.4470% 03/26/99 05/01/01 30 / 360 1
1,973,715 Fixed 8.1500% 8.0970% 05/05/99 07/01/99 30 / 360 1
1,761,217 Fixed 8.2400% 8.1870% 05/06/99 07/01/99 30 / 360 1
1,696,569 Fixed 8.0200% 7.8670% 03/30/99 05/01/99 30 / 360 1
1,659,061 Fixed 7.6400% 7.5870% 03/08/99 05/01/99 30 / 360 1
1,546,649 Fixed 7.8500% 7.7970% 04/29/99 06/01/99 30 / 360 1
1,455,660 Fixed 7.5400% 7.4870% 02/17/99 04/01/99 30 / 360 1
1,426,052 Fixed 8.4500% 8.3970% 03/19/99 05/01/99 30 / 360 1
1,297,055 Fixed 7.5600% 7.5070% 04/19/99 06/01/99 30 / 360 1
1,178,455 Fixed 7.8700% 7.8170% 04/21/99 06/01/99 30 / 360 1
1,174,680 Fixed 7.9000% 7.8470% 01/26/99 03/01/99 30 / 360 1
1,144,761 Fixed 7.5700% 7.5170% 02/24/99 04/01/99 Actual / 360 1
1,125,933 Fixed 8.8600% 8.8070% 04/01/99 06/01/99 30 / 360 1
998,058 Fixed 7.6900% 7.6370% 03/16/99 05/01/99 Actual / 360 1
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
GRACE MONTHLY
PERIOD PAYMENT DEBT
(DAYS) FREQUENCY SERVICE CROSS COLLATERALIZED / CROSS DEFAULTED
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
5 12 88,527.15 215990053, 215990028
5 12 35,925.38 215990053
5 12 52,601.77 215990028
10 12 52,638.28
5 12 52,474.56
5 12 41,328.96
5 12 24,893.64
5 12 20,464.63
5 12 20,171.51
5 12 18,044.77
5 12 22,039.56
5 12 16,700.40
5 12 5,339.16
5 12 15,176.34
5 12 13,711.42
5 12 13,733.33
5 12 10,907.75
10 12 11,580.19
5 12 10,952.27
5 12 10,810.89
5 12 11,065.26
5 12 10,870.57
5 12 9,089.79
5 12 7,383.71
5 12 8,204.17
5 12 $539,712.13
5 12 107,530.61
5 12 27,912.20
5 12 55,366.82
5 12 18,531.87
5 12 56,281.98
5 12 59,485.02
5 12 27,454.62
5 12 50,562.26
5 12 22,878.85
5 12 8,693.96
5 12 11,439.43
5 12 6,177.29
5 12 37,063.74
5 12 34,775.86
5 12 15,557.62
5 12 273,227.96
10 12 195,069.07
5 12 78,539.35
10 12 73,701.13
5 12 75,461.04
10 12 67,840.25
5 12 73,049.59
5 12 56,765.71
10 12 62,549.46
5 12 61,306.72
10 12 56,521.60
10 12 52,321.37
10 12 52,562.46
5 12 43,439.00
5 12 43,421.42
10 12 43,341.83
5 12 45,536.48
10 12 38,067.09
5 12 41,046.04
10 12 45,538.69
5 12 40,646.05
10 12 39,205.69
10 12 36,048.16
10 12 36,785.70
10 12 36,920.65
10 12 34,243.86
10 12 35,766.51
10 12 32,401.66
10 12 16,200.83
10 12 3,699.40
10 12 12,501.43
10 12 31,807.98
10 12 33,925.40
10 12 33,218.62
10 12 30,290.09
10 12 36,901.78
10 12 33,941.73
10 12 38,554.06
5 12 30,176.43
10 12 30,901.16
10 12 28,592.34
10 12 30,425.60
5 12 27,968.58
10 12 29,196.35
10 12 35,348.43
5 12 32,249.61
10 12 28,376.07
10 12 28,723.62
10 12 28,036.62
10 12 27,584.46
10 12 26,888.42
10 12 26,635.21
10 12 27,763.25
10 12 25,575.87
10 12 25,602.26
5 12 26,990.39
10 12 24,913.77
10 12 25,580.79
5 12 23,406.88
10 12 23,865.93
10 12 22,165.93
10 12 21,613.02
10 12 22,616.08
5 12 23,759.65
10 12 24,944.95
10 12 21,887.50
10 12 19,970.73
5 12 19,623.75
0 12 21,072.09
10 12 31,523.92
5 12 20,929.36
10 12 22,334.39
10 12 18,049.24
10 12 16,476.67
10 12 14,818.50
10 12 17,669.28
10 12 18,349.55
5 12 17,363.80
10 12 15,549.20
10 12 15,518.81
10 12 15,433.43
5 12 15,198.61
10 12 14,595.08
5 12 12,758.87
10 12 13,773.66
10 12 11,602.71
5 12 11,426.45
10 12 13,273.79
10 12 11,308.47
10 12 11,203.51
5 12 11,567.31
10 12 10,938.93
10 12 10,793.83
5 12 11,855.64
5 12 10,819.94
10 12 12,183.57
10 12 11,396.09
10 12 9,951.45
10 12 10,916.95
10 12 11,019.60
10 12 10,147.71
10 12 9,673.06
10 12 8,481.35
10 12 8,761.81
10 12 9,074.82
10 12 7,774.57
5 12 8,013.72
10 12 7,661.75
10 12 7,685.07
10 12 8,483.03
10 12 7,985.50
10 12 7,350.22
10 12 5,562.39
10 12 5,959.34
10 12 5,228.63
10 12 4,524.10
10 12 4,170.99
10 12 4,148.04
10 12 4,914.91
10 12 2,430.85
10 12 2,226.80
10 12 2,449.91
10 12 90,361.75
5 12 62,435.13 4164695, 4164709, 4164733, 4164814, 4164831, GL991009
5 12 4,821.67 4164709, 4164733, 4164814, 4164831, GL991009
5 12 12,054.17 4164695, 4164733, 4164814, 4164831, GL991009
5 12 12,054.17 4164695, 4164709, 4164814, 4164831, GL991009
5 12 10,355.63 4164695, 4164709, 4164733, 4164831, GL991009
5 12 10,465.21 4164695, 4164709, 4164733, 4164814, GL991009
5 12 12,684.28 4164695, 4164709, 4164733, 4164814, 4164831
5 12 51,156.76 6218, 6219, 6220, 6221, 6223
5 12 6,836.31 6219, 6220, 6221, 6223
5 12 7,059.96 6218, 6220, 6221, 6223
5 12 7,402.89 6218, 6219, 6221, 6223
5 12 14,067.74 6218, 6219, 6220, 6223
5 12 15,789.86 6218, 6219, 6220, 6221
5 12 48,955.06
5 12 46,184.22 6029, 6033, 6034
5 12 16,348.99 6033, 6034
5 12 13,284.95 6029, 6034
5 12 16,550.28 6029, 6033
5 12 36,140.34
10 12 34,405.67
5 12 29,915.09
10 12 23,953.53
10 12 20,965.75
5 12 26,380.67
5 12 14,724.09
5 12 11,656.58
5 12 17,670.32
5 12 18,072.22
5 12 13,440.64
5 12 14,929.80
5 12 12,293.43
5 12 10,958.34
5 12 11,329.93
5 12 9,532.99
5 12 9,265.13
5 12 8,662.80
5 12 7,686.19
5 12 7,190.73
5 12 7,160.52
5 12 6,456.10
10 12 5,828.43
5 12 5,664.97
10 12 5,380.81
10 12 2,859.87
5 12 130,274.13
5 12 81,268.73 6098, 5201
5 12 64,569.68 6098
5 12 16,699.05 5201
5 12 95,174.22
5 12 67,420.31
5 12 80,879.53
5 12 62,445.46
5 12 47,988.44
5 12 40,112.52
5 12 7,814.13
5 12 19,274.85
5 12 13,023.55
10 12 33,587.39
5 12 37,720.85
10 12 28,131.60
5 12 30,886.04
5 12 34,438.02
10 12 30,693.91
5 12 32,890.69
5 12 29,608.67
5 12 26,811.74 5623, 5624,5625, (CROSS DEFAULTED ONLY)
5 12 10,642.40 5624,5625 (Cross-Defaulted Only)
5 12 8,831.39 5623,5624 (Cross-Defaulted Only)
5 12 7,337.95 5623,5625 (Cross-Defaulted Only)
5 12 26,925.57 5434, 5435
5 12 15,887.27 5434
5 12 11,038.30 5435
5 12 23,539.64
5 12 23,803.51
5 12 28,429.89
5 12 4,035.79
5 12 3,273.47
5 12 3,318.32
5 12 8,520.00
5 12 5,224.10
5 12 4,058.21
5 12 27,257.61
5 12 12,958.54
5 12 14,299.07
5 12 21,892.74
5 12 22,784.93
5 12 20,670.58
5 12 24,962.67
5 12 20,208.63
5 12 19,791.51
5 12 22,301.59
5 12 19,477.93
5 12 20,101.61
5 12 17,548.79
5 12 17,513.00
5 12 15,575.66
5 12 17,304.40
5 12 5,989.98
5 12 3,549.62
5 12 7,764.79
5 12 14,698.90
5 12 13,888.60
5 12 12,497.71
5 12 13,580.44
5 12 11,809.54
10 12 10,248.55
5 12 12,390.60
5 12 9,657.68
5 12 9,013.68
5 12 9,838.19
5 12 8,165.10
5 12 9,358.23
5 12 7,122.71
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
SEASONING LO DEF YM5 YM4 YM3 YM2 YM1 YM 5% 4% 3% 2% 1% OPEN
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2 36 0 0 0 0 0 82 0 0 0 0 0 0 3
2 36 0 0 0 0 0 82 0 0 0 0 0 0 3
2 36 0 0 0 0 0 82 0 0 0 0 0 0 3
44 24 0 0 0 0 0 0 54 0 0 0 0 0 6
3 120 0 0 0 0 0 127 0 0 0 0 0 0 3
2 36 81 0 0 0 0 0 0 0 0 0 0 0 3
3 36 0 0 0 0 0 24 0 12 12 12 12 9 3
6 72 0 0 0 0 0 45 0 0 0 0 0 0 3
2 48 0 0 0 0 0 69 0 0 0 0 0 0 3
3 36 81 0 0 0 0 0 0 0 0 0 0 0 3
3 60 0 0 0 0 0 57 0 0 0 0 0 0 3
3 60 0 0 0 0 0 57 0 0 0 0 0 0 3
3 60 0 0 0 0 0 57 0 0 0 0 0 0 3
7 60 0 0 0 0 0 57 0 0 0 0 0 0 3
2 48 0 0 0 0 0 69 0 0 0 0 0 0 3
10 60 0 0 0 0 0 57 0 0 0 0 0 0 3
3 36 81 0 0 0 0 0 0 0 0 0 0 0 3
3 36 0 0 0 0 0 81 0 0 0 0 0 0 3
4 60 0 0 0 0 0 57 0 0 0 0 0 0 3
6 60 0 0 0 0 0 57 0 0 0 0 0 0 3
5 60 0 0 0 0 0 57 0 0 0 0 0 0 3
1 60 0 0 0 0 0 57 0 0 0 0 0 0 3
5 60 0 0 0 0 0 57 0 0 0 0 0 0 3
3 36 81 0 0 0 0 0 0 0 0 0 0 0 3
3 36 0 0 0 0 0 24 0 12 12 12 12 9 3
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
2 0 0 0 0 0 0 60 0 0 0 0 0 12 13
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
3 48 66 0 0 0 0 0 0 0 0 0 0 0 6
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
11 59 0 0 0 0 0 54 0 0 0 0 0 0 6
7 31 86 0 0 0 0 0 0 0 0 0 0 0 3
15 60 0 0 0 0 0 54 0 0 0 0 0 0 6
7 31 86 0 0 0 0 0 0 0 0 0 0 0 3
9 48 69 0 0 0 0 0 0 0 0 0 0 0 3
10 156 141 0 0 0 0 0 0 0 0 0 0 0 3
3 27 89 0 0 0 0 0 0 0 0 0 0 0 3
11 60 54 0 0 0 0 0 0 0 0 0 0 0 6
8 60 54 0 0 0 0 0 0 0 0 0 0 0 6
11 60 0 0 0 0 0 120 0 0 0 0 0 0 60
5 29 88 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
10 36 0 0 0 0 0 78 0 0 0 0 0 0 6
8 48 69 0 0 0 0 0 0 0 0 0 0 0 3
10 36 78 0 0 0 0 0 0 0 0 0 0 0 6
7 31 89 0 0 0 0 0 0 0 0 0 0 0 0
11 114 0 0 0 0 0 0 0 0 0 0 0 0 6
5 29 88 0 0 0 0 0 0 0 0 0 0 0 3
8 36 81 0 0 0 0 0 0 0 0 0 0 0 3
11 60 54 0 0 0 0 0 0 0 0 0 0 0 6
10 34 83 0 0 0 0 0 0 0 0 0 0 0 3
10 36 78 0 0 0 0 0 0 0 0 0 0 0 6
13 60 0 0 0 0 0 54 0 0 0 0 0 0 6
18 96 0 0 0 0 0 60 0 0 0 0 0 0 24
10 60 0 0 0 0 0 56 0 0 0 0 0 0 4
10 60 0 0 0 0 0 56 0 0 0 0 0 0 4
10 60 0 0 0 0 0 56 0 0 0 0 0 0 4
10 60 0 0 0 0 0 56 0 0 0 0 0 0 4
9 60 114 0 0 0 0 0 0 0 0 0 0 0 6
9 33 84 0 0 0 0 0 0 0 0 0 0 0 3
8 32 88 0 0 0 0 0 0 0 0 0 0 0 0
9 60 114 0 0 0 0 0 0 0 0 0 0 0 6
10 34 203 0 0 0 0 0 0 0 0 0 0 0 3
10 36 223 0 0 0 0 0 0 0 0 0 0 0 5
9 96 81 0 0 0 0 0 0 0 0 0 0 0 3
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
8 90 84 0 0 0 0 0 0 0 0 0 0 0 6
8 60 54 0 0 0 0 0 0 0 0 0 0 0 6
10 60 54 0 0 0 0 0 0 0 0 0 0 0 6
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
7 48 69 0 0 0 0 0 0 0 0 0 0 0 3
8 60 57 0 0 0 0 0 0 0 0 0 0 0 3
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
10 34 83 0 0 0 0 0 0 0 0 0 0 0 3
10 60 57 0 0 0 0 0 0 0 0 0 0 0 3
10 60 54 0 0 0 0 0 0 0 0 0 0 0 6
12 36 78 0 0 0 0 0 0 0 0 0 0 0 6
7 48 69 0 0 0 0 0 0 0 0 0 0 0 3
10 36 78 0 0 0 0 0 0 0 0 0 0 0 6
13 60 54 0 0 0 0 0 0 0 0 0 0 0 6
12 36 138 0 0 0 0 0 0 0 0 0 0 0 6
10 34 80 0 0 0 0 0 0 0 0 0 0 0 6
5 29 88 0 0 0 0 0 0 0 0 0 0 0 3
10 156 141 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
9 36 78 0 0 0 0 0 0 0 0 0 0 0 6
12 60 54 0 0 0 0 0 0 0 0 0 0 0 6
17 0 0 0 0 0 0 84 0 0 0 12 12 6 6
10 60 0 0 0 0 0 54 0 0 0 0 0 0 6
11 60 54 0 0 0 0 0 0 0 0 0 0 0 6
7 48 69 0 0 0 0 0 0 0 0 0 0 0 3
14 60 0 0 0 0 0 108 0 0 0 0 0 0 72
10 36 0 0 0 0 0 78 0 0 0 0 0 0 6
8 84 0 0 0 0 0 0 0 36 12 12 12 78 6
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
7 48 69 0 0 0 0 0 0 0 0 0 0 0 3
15 60 0 0 0 0 0 54 0 0 0 0 0 0 6
6 48 69 0 0 0 0 0 0 0 0 0 0 0 3
10 120 90 0 0 0 0 0 0 0 0 0 0 0 6
11 36 81 0 0 0 0 0 0 0 0 0 0 0 3
8 60 54 0 0 0 0 0 0 0 0 0 0 0 6
11 60 0 0 0 0 0 54 0 0 0 0 0 0 6
10 34 81 0 0 0 0 0 0 0 0 0 0 0 6
24 0 0 0 0 0 0 114 0 0 0 0 0 0 6
3 27 93 0 0 0 0 0 0 0 0 0 0 0 0
7 31 86 0 0 0 0 0 0 0 0 0 0 0 3
7 31 86 0 0 0 0 0 0 0 0 0 0 0 3
11 60 54 0 0 0 0 0 0 0 0 0 0 0 6
4 60 0 0 0 0 0 58 0 0 0 0 0 0 3
19 36 0 0 0 0 0 78 0 0 0 0 0 0 6
4 28 89 0 0 0 0 0 0 0 0 0 0 0 3
5 48 66 0 0 0 0 0 0 0 0 0 0 0 6
13 60 0 0 0 0 0 54 0 0 0 0 0 0 6
8 32 145 0 0 0 0 0 0 0 0 0 0 0 3
10 120 114 0 0 0 0 0 0 0 0 0 0 0 6
9 33 84 0 0 0 0 0 0 0 0 0 0 0 3
8 48 69 0 0 0 0 0 0 0 0 0 0 0 3
4 28 89 0 0 0 0 0 0 0 0 0 0 0 3
9 60 54 0 0 0 0 0 0 0 0 0 0 0 6
10 60 54 0 0 0 0 0 0 0 0 0 0 0 6
7 31 128 0 0 0 0 0 0 0 0 0 0 0 3
4 28 89 0 0 0 0 0 0 0 0 0 0 0 3
10 36 18 0 0 0 0 0 0 0 0 0 0 0 6
5 0 0 0 0 0 0 180 0 12 12 12 12 9 3
9 33 84 0 0 0 0 0 0 0 0 0 0 0 3
7 0 0 0 0 0 0 114 0 0 0 0 0 0 6
19 0 0 96 0 0 0 0 0 12 0 0 0 0 12
11 35 79 0 0 0 0 0 0 0 0 0 0 0 6
10 60 0 0 0 0 0 54 0 0 0 0 0 0 6
9 33 84 0 0 0 0 0 0 0 0 0 0 0 3
8 0 0 0 0 0 0 114 0 0 0 0 0 0 6
9 60 120 0 0 0 0 0 0 0 0 0 0 0 60
9 33 84 0 0 0 0 0 0 0 0 0 0 0 3
3 27 93 0 0 0 0 0 0 0 0 0 0 0 0
10 60 54 0 0 0 0 0 0 0 0 0 0 0 6
10 0 0 0 0 0 0 114 0 0 0 0 0 0 6
9 0 0 0 0 0 0 120 0 12 12 12 12 6 6
6 0 0 0 0 0 0 120 0 12 12 12 12 12 60
3 0 0 0 0 0 0 180 0 12 12 12 12 6 6
13 59 0 0 0 0 0 0 0 13 12 12 12 6 6
19 48 0 60 0 72 0 0 0 0 0 0 0 0 24
9 0 0 0 0 0 0 120 0 12 12 12 12 12 60
9 0 0 0 0 0 0 114 0 0 0 0 0 0 6
4 0 0 0 0 0 0 114 0 0 0 0 0 0 6
9 0 0 0 0 0 0 120 0 12 12 12 12 12 60
7 0 0 0 0 0 0 120 0 12 12 12 12 6 6
9 0 0 0 0 0 0 120 0 12 12 12 12 12 60
9 0 0 0 0 0 0 114 0 0 0 0 0 0 6
9 0 0 0 0 0 0 114 0 0 0 0 0 0 6
1 60 0 0 0 0 0 57 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
4 28 89 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
5 60 0 0 0 0 0 177 0 0 0 0 0 0 3
11 36 0 0 0 0 0 0 0 0 0 12 12 21 3
1 25 56 0 0 0 0 0 0 0 0 0 0 0 3
5 72 0 0 0 0 0 69 0 0 0 0 0 0 3
5 72 0 0 0 0 0 69 0 0 0 0 0 0 3
5 72 0 0 0 0 0 69 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
12 60 0 0 0 0 0 57 0 0 0 0 0 0 3
3 60 0 0 0 0 0 57 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
5 29 88 0 0 0 0 0 0 0 0 0 0 0 3
5 29 88 0 0 0 0 0 0 0 0 0 0 0 3
5 29 89 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
6 60 0 0 0 0 0 57 0 0 0 0 0 0 3
6 60 0 0 0 0 0 57 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
2 60 0 0 0 0 0 57 0 0 0 0 0 0 3
6 30 87 0 0 0 0 0 0 0 0 0 0 0 3
2 60 0 0 0 0 0 57 0 0 0 0 0 0 3
1 60 0 0 0 0 0 57 0 0 0 0 0 0 3
1 25 116 0 0 0 0 0 0 0 0 0 0 0 3
5 29 88 0 0 0 0 0 0 0 0 0 0 0 3
5 29 88 0 0 0 0 0 0 0 0 0 0 0 3
5 29 88 0 0 0 0 0 0 0 0 0 0 0 3
1 25 92 0 0 0 0 0 0 0 0 0 0 0 3
8 32 85 0 0 0 0 0 0 0 0 0 0 0 3
3 0 90 0 0 0 0 27 0 0 0 0 0 0 3
1 25 92 0 0 0 0 0 0 0 0 0 0 0 3
1 25 92 0 0 0 0 0 0 0 0 0 0 0 3
2 48 0 0 0 36 0 33 0 0 0 0 0 0 3
2 48 0 0 0 36 0 33 0 0 0 0 0 0 3
2 48 0 0 0 36 0 33 0 0 0 0 0 0 3
2 48 0 0 0 36 0 33 0 0 0 0 0 0 3
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
4 28 113 0 0 0 0 0 0 0 0 0 0 0 3
9 0 0 0 0 0 96 0 0 0 0 0 12 0 12
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
13 0 0 180 0 0 0 0 0 12 12 0 0 0 20
11 0 0 0 0 96 0 0 0 0 0 12 0 0 12
4 28 113 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
4 28 89 0 0 0 0 0 0 0 0 0 0 0 3
4 28 89 0 0 0 0 0 0 0 0 0 0 0 3
4 28 89 0 0 0 0 0 0 0 0 0 0 0 3
4 28 89 0 0 0 0 0 0 0 0 0 0 0 3
1 0 0 0 180 12 12 12 0 0 0 0 0 0 24
1 0 0 0 180 12 12 12 0 0 0 0 0 0 24
1 0 0 0 180 12 12 12 0 0 0 0 0 0 24
3 27 210 0 0 0 0 0 0 0 0 0 0 0 3
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
3 0 90 27 0 0 0 0 0 0 0 0 0 0 3
3 0 90 27 0 0 0 0 0 0 0 0 0 0 3
3 0 90 27 0 0 0 0 0 0 0 0 0 0 3
3 0 90 27 0 0 0 0 0 0 0 0 0 0 3
3 0 90 27 0 0 0 0 0 0 0 0 0 0 3
3 0 90 27 0 0 0 0 0 0 0 0 0 0 3
3 0 90 27 0 0 0 0 0 0 0 0 0 0 3
5 0 0 0 0 0 0 117 0 0 0 0 0 0 3
5 0 0 0 0 0 0 117 0 0 0 0 0 0 3
5 0 0 0 0 0 0 117 0 0 0 0 0 0 3
1 25 92 0 0 0 0 0 0 0 0 0 0 0 3
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
2 26 115 0 0 0 0 0 0 0 0 0 0 0 3
4 28 89 0 0 0 0 0 0 0 0 0 0 0 3
3 0 90 0 0 0 0 27 0 0 0 0 0 0 3
3 27 210 0 0 0 0 0 0 0 0 0 0 0 3
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
5 0 0 117 0 0 0 0 0 0 0 0 0 0 3
1 0 0 117 0 0 0 0 0 0 0 0 0 0 3
4 28 89 0 0 0 0 0 0 0 0 0 0 0 3
3 60 0 0 0 48 0 33 0 0 0 0 0 0 3
1 25 92 0 0 0 0 0 0 0 0 0 0 0 3
3 0 90 27 0 0 0 0 0 0 0 0 0 0 3
3 0 90 27 0 0 0 0 0 0 0 0 0 0 3
3 0 90 27 0 0 0 0 0 0 0 0 0 0 3
3 0 90 27 0 0 0 0 0 0 0 0 0 0 3
1 25 92 0 0 0 0 0 0 0 0 0 0 0 3
1 25 116 0 0 0 0 0 0 0 0 0 0 0 3
3 0 0 0 141 0 0 0 0 0 0 0 0 0 3
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
4 28 89 0 0 0 0 0 0 0 0 0 0 0 3
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
5 0 0 141 0 0 0 0 0 0 0 0 0 0 3
4 28 89 0 0 0 0 0 0 0 0 0 0 0 3
2 26 91 0 0 0 0 0 0 0 0 0 0 0 3
3 27 90 0 0 0 0 0 0 0 0 0 0 0 3
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
YIELD ORIGINAL REMAINING
YIELD MAINTENANCE ORIGINAL TERM TO MATURITY REMAINING TERM TO
MAINTENANCE CALCULATION AMORTIZATION MATURITY DATE OR AMORTIZATION MATURITY
DESCRIPTION METHOD TERM OR ARD ARD TERM OR ARD
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
3 300 121 06/01/09 298 119
300 121 06/01/09 298 119
300 121 06/01/09 298 119
3 344 84 10/02/02 300 40
3 250 250 02/01/20 247 247
360 120 05/01/09 358 118
3 300 120 04/01/09 297 117
3 300 120 12/15/08 294 114
3 360 120 05/01/09 358 118
360 120 04/01/09 357 117
3 240 120 04/01/09 237 117
240 120 04/01/09 237 117
240 120 04/01/09 237 117
3 300 120 12/01/08 293 113
3 360 120 05/01/09 358 118
3 300 120 09/01/08 290 110
360 120 04/01/09 357 117
3 300 120 04/01/09 297 117
3 300 120 03/01/09 296 116
3 276 120 12/29/08 270 114
3 240 120 02/01/09 235 115
3 300 120 05/03/09 299 119
3 360 120 02/01/09 355 115
360 120 04/01/09 357 117
3 360 120 04/01/09 357 117
TREASURY FLAT 5 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
Treasury Flat 300 85 05/31/06 298 83
360 120 04/01/09 357 117
360 120 04/01/09 357 117
360 120 04/01/09 357 117
Treasury Flat 5 360 119 07/01/08 349 108
300 120 12/01/08 293 113
Treasury Flat 4 360 120 04/01/08 345 105
300 120 12/01/08 293 113
360 120 10/01/08 351 111
300 300 09/01/23 290 290
360 119 03/01/09 357 116
360 120 08/01/08 349 109
300 120 11/01/08 292 112
Treasury Flat 5 240 240 08/01/18 229 229
300 120 02/01/09 295 115
300 120 01/01/09 294 114
Treasury Flat 5 300 120 09/01/08 290 110
300 120 11/01/08 292 112
360 120 09/01/08 350 110
360 120 12/01/08 353 113
240 120 08/01/08 229 109
300 120 02/01/09 295 115
300 120 11/01/08 292 112
360 120 08/01/08 349 109
300 120 09/01/08 290 110
300 120 09/01/08 290 110
Treasury Flat 4 360 120 06/01/08 347 107
Treasury Flat 5 360 180 01/01/13 342 162
TREASURY FLAT 5 360 120 09/01/08 350 110
Treasury Flat 360 120 09/01/08 350 110
Treasury Flat 360 120 09/01/08 350 110
Treasury Flat 360 120 09/01/08 350 110
360 180 10/01/13 351 171
300 120 10/01/08 291 111
300 120 11/01/08 292 112
360 180 10/01/13 351 171
240 240 09/01/18 230 230
264 264 09/01/20 254 254
180 180 10/01/13 171 171
360 120 04/01/09 357 117
300 180 11/01/13 292 172
360 120 11/01/08 352 112
300 120 09/01/08 290 110
360 120 03/31/09 357 117
300 120 12/01/08 293 113
240 120 11/01/08 232 112
240 120 04/01/09 237 117
300 120 09/01/08 290 110
300 120 09/01/08 290 110
300 120 09/01/08 290 110
300 120 07/01/08 288 108
300 120 12/01/08 293 113
360 120 09/01/08 350 110
300 120 06/01/08 287 107
300 180 07/01/13 288 168
300 120 09/01/08 290 110
300 120 02/01/09 295 115
300 300 09/01/23 290 290
300 120 01/01/09 294 114
360 120 10/01/08 351 111
360 120 07/01/08 348 108
Treasury Flat 5 360 120 02/01/08 343 103
Treasury Flat 5 360 120 09/01/08 350 110
360 120 08/01/08 349 109
300 120 12/01/08 293 113
Treasury Flat 4 240 240 05/01/18 226 226
Treasury Flat 4 300 120 09/01/08 290 110
300 240 11/01/18 292 232
360 120 04/01/09 357 117
300 120 12/01/08 293 113
Treasury Flat 4 300 120 04/01/08 285 105
300 120 01/01/09 294 114
216 216 09/01/16 206 206
300 120 08/01/08 289 109
300 120 11/01/08 292 112
Treasury Flat 5 360 120 08/01/08 349 109
240 121 10/01/08 230 111
Treasury Flat 5 300 120 07/01/07 276 96
300 120 04/01/09 297 117
360 120 12/01/08 353 113
300 120 12/01/08 293 113
300 120 08/01/08 289 109
Treasury Flat 5 300 121 03/31/09 296 117
Treasury Flat 4 300 120 12/01/07 281 101
360 120 03/01/09 356 116
300 120 02/01/09 295 115
Treasury Flat 4 360 120 06/01/08 347 107
360 180 11/01/13 352 172
240 240 09/01/18 230 230
300 120 10/01/08 291 111
300 120 11/01/08 292 112
300 120 03/01/09 296 116
300 120 10/01/08 291 111
300 120 09/01/08 290 110
240 162 06/01/12 233 155
300 120 03/01/09 296 116
240 60 09/01/03 230 50
Treasury Flat 5 300 240 02/01/19 295 235
300 120 10/01/08 291 111
Treasury Flat 5 300 120 12/01/08 293 113
Treasury Flat 4 300 120 12/01/07 281 101
300 120 08/01/08 289 109
Treasury Flat 4 300 120 09/01/08 290 110
300 120 10/01/08 291 111
Treasury Flat 5 300 120 11/01/08 292 112
240 240 10/01/18 231 231
300 120 10/01/08 291 111
360 120 04/01/09 357 117
300 120 09/01/08 290 110
Treasury Flat 5 300 120 09/01/08 290 110
Treasury Flat 5 240 180 10/01/13 231 171
Treasury Flat 5 240 240 01/01/19 234 234
Treasury Flat 5 240 240 04/01/19 237 237
300 120 06/01/08 287 107
Treasury Flat 4 204 204 12/01/14 185 185
Treasury Flat 5 240 240 10/01/18 231 231
Treasury Flat 5 300 120 10/01/08 291 111
Treasury Flat 5 300 120 03/01/09 296 116
Treasury Flat 5 240 240 10/01/18 231 231
Treasury Flat 5 180 180 12/01/13 173 173
Treasury Flat 5 300 240 10/01/18 291 231
Treasury Flat 5 300 120 10/01/08 291 111
Treasury Flat 5 240 120 10/01/08 231 111
Treasury Flat 1 360 120 06/01/09 359 119
300 120 05/01/09 298 118
300 120 05/01/09 298 118
300 120 05/01/09 298 118
300 120 05/01/09 298 118
300 120 05/01/09 298 118
300 120 05/01/09 298 118
300 120 05/01/09 298 118
300 120 01/01/09 294 114
300 120 01/01/09 294 114
300 120 01/01/09 294 114
300 120 01/01/09 294 114
300 120 01/01/09 294 114
300 120 01/01/09 294 114
324 120 05/01/09 322 118
300 120 01/01/09 294 114
300 120 01/01/09 294 114
300 120 01/01/09 294 114
300 120 01/01/09 294 114
300 120 03/01/09 296 116
300 120 01/01/09 294 114
Treasury Flat 1 240 240 02/01/19 235 235
360 84 08/01/05 349 73
300 84 06/01/06 299 83
TREASURY FLAT 1 144 144 02/01/11 139 139
Treasury Flat 144 144 02/01/11 139 139
Treasury Flat 144 144 02/01/11 139 139
300 120 05/01/09 298 118
300 120 04/01/09 297 117
Treasury Flat 1 360 120 07/01/08 348 108
Treasury Flat 1 300 120 04/01/09 297 117
300 120 01/01/09 294 114
300 120 05/01/09 298 118
300 120 02/01/09 295 115
300 120 02/01/09 295 115
300 121 03/01/09 295 116
300 120 01/01/09 294 114
300 120 01/01/09 294 114
Treasury Flat 1 300 120 01/01/09 294 114
Treasury Flat 1 300 120 01/01/09 294 114
300 120 01/01/09 294 114
Treasury Flat 2 300 120 05/01/09 298 118
300 120 01/01/09 294 114
Treasury Flat 2 300 120 05/01/09 298 118
Treasury Flat 2 286 120 06/01/09 285 119
344 144 06/01/11 343 143
360 120 02/01/09 355 115
360 120 02/01/09 355 115
360 120 02/01/09 355 115
235 120 06/01/09 234 119
360 120 11/01/08 352 112
Treasury Flat 1 291 120 04/01/09 288 117
360 120 06/01/09 359 119
264 120 06/01/09 263 119
TREASURY FLAT 1 360 120 05/01/09 358 118
Treasury Flat 360 120 05/01/09 358 118
Treasury Flat 360 120 05/01/09 358 118
Treasury Flat 360 120 05/01/09 358 118
360 120 04/01/09 357 117
300 144 03/01/11 296 140
Treasury Flat 1 360 120 10/01/08 351 111
360 120 04/01/09 357 117
Treasury Flat 1 217 224 02/01/17 211 211
Treasury Flat 1 300 120 08/01/08 289 109
300 144 03/01/11 296 140
300 120 05/01/09 298 118
300 120 03/01/09 296 116
300 120 03/01/09 296 116
300 120 03/01/09 296 116
300 120 03/01/09 296 116
TREASURY FLAT 1 300 240 06/01/19 299 239
Treasury Flat 300 240 06/01/19 299 239
Treasury Flat 300 240 06/01/19 299 239
360 240 04/01/19 357 237
360 120 04/01/09 357 117
TREASURY FLAT 1 240 120 04/01/09 240 117
Treasury Flat 240 120 04/01/09 240 117
Treasury Flat 240 120 04/01/09 240 117
Treasury Flat 240 120 04/01/09 240 117
Treasury Flat 240 120 04/01/09 240 117
Treasury Flat 240 120 04/01/09 240 117
Treasury Flat 240 120 04/01/09 240 117
TREASURY FLAT 1 240 120 02/01/09 235 115
Treasury Flat 240 120 02/01/09 235 115
Treasury Flat 240 120 02/01/09 235 115
360 120 06/01/09 359 119
300 120 04/01/09 297 117
360 144 05/01/11 358 142
240 120 03/01/09 236 116
Treasury Flat 1 360 120 04/01/09 357 117
360 240 04/01/19 357 237
300 120 04/01/09 297 117
Treasury Flat 1 300 120 02/01/09 295 115
Treasury Flat 1 240 120 06/01/09 239 119
300 120 03/01/09 296 116
Treasury Flat 1 240 144 04/01/11 237 141
300 120 06/01/09 299 119
TREASURY FLAT 1 240 120 04/01/09 240 117
Treasury Flat 240 120 04/01/09 240 117
Treasury Flat 240 120 04/01/09 240 117
Treasury Flat 240 120 04/01/09 240 117
360 120 06/01/09 359 119
300 144 06/01/11 299 143
Treasury Flat 1 360 144 04/01/11 357 141
240 120 04/01/09 237 117
300 120 05/01/09 298 118
360 120 03/01/09 356 116
240 120 04/01/09 237 117
300 120 05/01/09 298 118
300 120 05/01/09 298 118
Treasury Flat 1 240 144 02/01/11 235 139
360 120 03/01/09 356 116
300 120 05/01/09 298 118
360 120 04/01/09 357 117
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
BALLOON CURRENT OR
BALLOON, FULLY /ARD FUTURE
AMORTIZING BALLOON/ARD LTV DUE ON DUE ON SUBORDINATE APPRAISAL
OR ARD BALANCE RATIO SALE ENCUMBRANCE FINANCING VALUE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
BALLOON 9,584,889 56.9% YES YES NO 16,850,000
Balloon 3,889,662 56.8% Yes Yes No 6,850,000
Balloon 5,695,227 57.0% Yes Yes No 10,000,000
Balloon 6,354,434 72.4% Yes Yes No 8,780,000
Fully Amortizing 344,013 5.1% Yes Yes No 6,700,000
Balloon 5,092,896 61.0% Yes Yes No 8,350,000
Balloon 2,873,549 68.4% Yes Yes No 4,200,000
Balloon 2,271,603 50.5% Yes Yes No 4,500,000
Balloon 2,420,313 64.5% Yes Yes Yes 3,750,000
Balloon 2,278,927 70.8% Yes Yes No 3,220,000
BALLOON 1,810,004 51.0% YES YES NO 3,550,000
Balloon 1,371,524 51.0% Yes Yes No 2,690,000
Balloon 438,480 51.0% Yes Yes No 860,000
Balloon 1,697,026 43.0% Yes Yes No 3,950,000
Balloon 1,761,716 58.7% Yes Yes No 3,000,000
Balloon 1,535,784 51.6% Yes Yes No 2,975,000
Balloon 1,380,630 70.8% Yes Yes No 1,950,000
Balloon 1,228,968 60.8% Yes Yes No 2,020,000
Balloon 1,190,989 51.1% Yes Yes No 2,330,000
Balloon 1,114,349 55.7% Yes Yes No 2,000,000
Balloon 966,286 40.3% Yes Yes No 2,400,000
Balloon 1,131,621 44.4% Yes Yes No 2,550,000
Balloon 1,149,892 65.7% Yes Yes No 1,750,000
Balloon 934,580 70.8% Yes Yes No 1,320,000
Balloon 955,232 58.8% Yes Yes No 1,625,000
BALLOON $62,043,338 52.6% YES YES YES $117,950,000
Balloon 12,361,326 52.6% Yes Yes Yes 23,500,000
Balloon 3,208,685 52.6% Yes Yes Yes 6,100,000
Balloon 6,364,768 52.6% Yes Yes Yes 12,100,000
Balloon 2,130,356 52.6% Yes Yes Yes 4,050,000
Balloon 6,469,971 52.6% Yes Yes Yes 12,300,000
Balloon 6,838,181 52.6% Yes Yes Yes 13,000,000
Balloon 3,156,083 52.6% Yes Yes Yes 6,000,000
Balloon 5,812,453 52.6% Yes Yes Yes 11,050,000
Balloon 2,630,069 52.6% Yes Yes Yes 5,000,000
Balloon 999,426 52.6% Yes Yes Yes 1,900,000
Balloon 1,315,035 52.6% Yes Yes Yes 2,500,000
Balloon 710,119 52.6% Yes Yes Yes 1,350,000
Balloon 4,260,712 52.6% Yes Yes Yes 8,100,000
Balloon 3,997,706 52.6% Yes Yes Yes 7,600,000
Balloon 1,788,447 52.6% Yes Yes Yes 3,400,000
Balloon 34,532,966 69.8% Yes Yes No 49,500,000
Balloon 24,194,111 63.7% Yes Yes No 38,000,000
Balloon 10,036,071 68.5% Yes Yes No 14,650,000
Balloon 9,490,525 61.6% Yes Yes No 15,400,000
Balloon 8,441,262 59.0% Yes Yes No 14,300,000
HyperAm 8,635,778 66.9% Yes Yes No 12,900,000
Balloon 7,787,417 53.7% Yes Yes No 14,490,000
Balloon 7,880,237 68.5% Yes Yes No 11,500,000
Fully Amortizing - 0.0% Yes Yes No 11,800,000
Balloon 7,597,004 70.3% Yes Yes No 10,815,000
HyperAm 7,133,818 64.9% Yes Yes No 11,000,000
Balloon 5,585,092 63.3% Yes Yes No 8,825,000
Fully Amortizing - 0.0% Yes Yes No 8,800,000
Balloon 4,811,000 61.5% Yes Yes No 7,820,000
Balloon 4,770,750 52.4% Yes Yes No 9,100,000
Balloon 4,689,465 59.9% Yes Yes No 7,825,000
Balloon 4,819,362 49.2% Yes Yes No 9,800,000
HyperAm 5,035,687 69.0% Yes Yes No 7,300,000
Balloon 5,068,804 66.7% Yes Yes No 7,600,000
HyperAm 3,796,242 48.1% Yes Yes No 7,900,000
Balloon 4,423,574 56.7% Yes Yes No 7,805,000
Balloon 4,371,277 58.3% Yes Yes No 7,500,000
Balloon 4,546,243 66.9% Yes Yes No 6,800,000
Balloon 4,172,533 60.0% Yes Yes No 6,950,000
Balloon 4,107,534 62.5% Yes Yes No 6,575,000
Balloon 4,347,295 60.2% Yes Yes No 7,220,000
Balloon 3,814,583 56.9% Yes Yes Yes 6,700,000
BALLOON 4,263,809 67.2% YES YES NO 6,350,000
Balloon 2,131,905 67.2% Yes Yes No 3,175,000
Balloon 486,813 67.2% Yes Yes No 725,000
Balloon 1,645,092 67.2% Yes Yes No 2,450,000
Balloon 3,568,216 57.6% Yes Yes No 6,200,000
Balloon 3,851,628 64.2% Yes Yes No 6,000,000
Balloon 3,770,032 50.3% Yes Yes No 7,490,000
Balloon 3,397,974 58.1% Yes Yes No 5,850,000
Fully Amortizing - 0.0% Yes Yes No 6,000,000
Fully Amortizing - 0.0% Yes Yes No 6,200,000
Fully Amortizing - 0.0% Yes Yes No 8,250,000
Balloon 3,742,736 61.4% Yes Yes No 6,100,000
Balloon 2,732,841 43.7% Yes Yes No 6,250,000
Balloon 3,657,785 61.0% Yes Yes No 6,000,000
Balloon 3,370,630 61.3% Yes Yes No 5,500,000
Balloon 3,540,079 66.2% Yes Yes No 5,350,000
Balloon 3,244,941 60.8% Yes Yes No 5,340,000
Balloon 2,906,747 42.1% Yes Yes No 6,900,000
Balloon 2,777,303 48.7% Yes Yes No 5,700,000
Balloon 3,132,560 67.4% Yes Yes No 4,650,000
Balloon 3,087,149 52.3% Yes Yes No 5,900,000
Balloon 3,036,898 34.1% Yes Yes No 8,900,000
Balloon 3,011,319 55.8% Yes Yes No 5,400,000
Balloon 3,007,805 55.7% Yes Yes No 5,400,000
HyperAm 3,297,645 67.3% Yes Yes No 4,900,000
HyperAm 2,915,016 60.7% Yes Yes No 4,800,000
HyperAm 2,205,292 36.2% Yes Yes No 6,100,000
HyperAm 2,803,784 59.7% Yes Yes No 4,700,000
Balloon 2,890,290 56.7% Yes Yes No 5,100,000
Fully Amortizing - 0.0% Yes Yes No 9,380,000
Balloon 2,839,503 51.6% Yes Yes No 5,500,000
Balloon 3,013,286 56.0% Yes Yes No 5,380,000
HyperAm 3,026,598 56.1% Yes Yes No 5,400,000
Balloon 2,843,459 58.0% Yes Yes No 4,900,000
Balloon 2,760,771 69.0% Yes Yes No 4,000,000
HyperAm 2,788,969 67.2% Yes Yes No 4,150,000
Balloon 2,534,334 55.1% Yes Yes No 4,600,000
Fully Amortizing - 0.0% Yes Yes No 4,100,000
HyperAm 2,389,456 51.9% Yes Yes No 4,600,000
Balloon 1,020,036 29.1% Yes Yes No 3,500,000
Balloon 2,412,997 65.6% Yes Yes No 3,680,000
Balloon 2,239,976 48.7% Yes Yes No 4,600,000
Balloon 1,213,974 22.1% Yes Yes No 5,500,000
Balloon 2,206,147 56.6% Yes Yes No 3,900,000
Fully Amortizing - 0.0% Yes Yes No 4,800,000
Balloon 2,006,953 60.5% Yes Yes No 3,320,000
Balloon 1,853,406 62.7% Yes Yes No 2,956,000
Balloon 1,960,533 67.0% Yes Yes No 2,925,000
Balloon 1,522,432 51.7% Yes Yes No 2,945,000
Balloon 1,825,138 57.0% Yes Yes No 3,200,000
Balloon 1,809,683 53.2% Yes Yes No 3,400,000
Balloon 1,925,719 71.3% Yes Yes No 2,700,000
Balloon 1,710,726 57.0% Yes Yes No 3,000,000
HyperAm 1,676,252 54.1% Yes Yes No 3,100,000
Balloon 1,640,915 47.2% Yes Yes No 3,480,000
Balloon 1,608,418 57.4% Yes Yes No 2,800,000
Balloon 1,599,843 71.1% Yes Yes No 2,250,000
Balloon 1,482,626 59.3% Yes Yes No 2,500,000
Balloon 1,470,107 52.9% Yes Yes No 2,780,000
Balloon 1,299,073 59.1% Yes Yes No 2,200,000
Fully Amortizing - 0.0% Yes Yes No 2,300,000
Balloon 1,283,875 64.2% Yes Yes No 2,000,000
Balloon 1,252,828 57.0% Yes Yes No 2,200,000
Balloon 1,240,658 66.2% Yes Yes No 1,875,000
HyperAm 1,216,535 60.8% Yes Yes No 2,000,000
HyperAm 1,210,627 46.6% Yes Yes No 2,600,000
Balloon 772,857 36.1% Yes Yes No 2,140,000
Balloon 1,204,958 62.8% Yes Yes No 1,920,000
HyperAm 1,309,258 49.4% Yes Yes No 2,650,000
Balloon 561,127 24.4% Yes Yes No 2,300,000
Balloon 1,129,811 64.2% Yes Yes No 1,760,000
Balloon 1,161,142 61.1% Yes Yes No 1,900,000
Balloon 1,164,349 72.8% Yes Yes No 1,600,000
HyperAm 1,090,526 59.4% Yes Yes No 1,835,000
Balloon 1,041,583 41.2% Yes Yes No 2,530,000
Balloon 962,907 64.2% Yes Yes No 1,500,000
Balloon 951,587 61.4% Yes Yes No 1,550,000
Fully Amortizing - 0.0% Yes Yes No 1,750,000
Balloon 882,665 64.2% Yes Yes No 1,375,000
Balloon 975,584 65.0% Yes Yes No 1,500,000
Balloon 856,806 57.1% Yes Yes No 1,500,000
Balloon 825,108 51.9% Yes Yes No 1,590,000
Balloon 451,166 27.2% Yes Yes No 1,660,000
Fully Amortizing 59,732 4.4% Yes Yes No 1,350,000
Fully Amortizing 48,110 4.0% Yes Yes No 1,200,000
Balloon 533,590 67.1% Yes Yes No 795,000
Fully Amortizing 27,039 3.0% Yes Yes No 889,800
Fully Amortizing 33,539 3.1% Yes Yes No 1,100,000
Balloon 492,116 56.8% Yes Yes No 866,000
Balloon 438,555 58.5% Yes Yes No 750,000
Fully Amortizing 25,101 2.3% Yes Yes No 1,100,000
Fully Amortizing - 0.0% Yes Yes No 1,300,000
Balloon 136,887 33.6% Yes Yes No 408,000
Balloon 246,920 63.3% Yes Yes No 390,000
Balloon 210,370 32.4% Yes Yes No 650,000
Balloon 11,055,257 70.0% Yes Yes No 15,800,000
BALLOON 6,937,816 60.9% YES PRIOR CONSENT NO 11,390,000
Balloon 535,785 60.9% Yes Prior Consent No 880,000
Balloon 1,339,465 62.3% Yes Prior Consent No 2,150,000
Balloon 1,339,465 60.9% Yes Prior Consent No 2,200,000
Balloon 1,150,721 60.6% Yes Prior Consent No 1,900,000
Balloon 1,162,899 60.9% Yes Prior Consent No 1,910,000
Balloon 1,409,481 60.0% Yes Prior Consent No 2,350,000
BALLOON 5,604,287 60.3% YES YES NO 9,370,000
Balloon 748,926 57.2% Yes Yes No 1,310,000
Balloon 773,428 49.6% Yes Yes No 1,560,000
Balloon 810,997 59.2% Yes Yes No 1,370,000
Balloon 1,541,137 63.4% Yes Yes No 2,430,000
Balloon 1,729,799 64.1% Yes Yes No 2,700,000
Balloon 5,685,101 63.9% Yes Prior Consent No 8,900,000
BALLOON 5,059,539 44.1% YES YES NO 11,650,000
Balloon 1,791,053 45.5% Yes Yes No 3,940,000
Balloon 1,455,384 50.4% Yes Yes No 2,890,000
Balloon 1,813,103 37.6% Yes Yes No 4,820,000
Balloon 4,046,044 64.7% Yes Yes No 6,250,000
Balloon 3,916,248 55.2% Yes Prior Consent No 7,100,000
Fully Amortizing - 0.0% Yes Prior Consent No 5,700,000
Balloon 3,123,945 72.7% Yes Prior Consent No 4,300,000
Balloon 2,487,740 63.8% Yes Prior Consent No 3,900,000
FULLY AMORTIZING 59,192 1.4% YES PRIOR CONSENT NO 4,300,000
Fully Amortizing 33,037 1.4% Yes Prior Consent No 2,400,000
Fully Amortizing 26,155 1.4% Yes Prior Consent No 1,900,000
Balloon 1,963,533 61.4% Yes Prior Consent No 3,200,000
Balloon 1,856,285 45.3% Yes Yes No 4,100,000
Balloon 1,752,465 67.4% Yes Prior Consent No 2,600,000
Balloon 1,579,951 46.5% Yes Prior Consent No 3,400,000
Balloon 1,346,760 54.3% Yes Yes No 2,480,000
Balloon 1,217,694 60.9% Yes Prior Consent No 2,000,000
Balloon 1,230,198 61.5% Yes Prior Consent No 2,000,000
Balloon 1,050,259 51.9% Yes Prior Consent No 2,025,000
Balloon 1,029,423 60.6% Yes Prior Consent No 1,700,000
Balloon 949,022 52.7% Yes Yes Yes 1,800,000
Balloon 842,031 59.3% Yes Yes Yes 1,420,000
Balloon 780,923 59.6% Yes Prior Consent No 1,310,000
Balloon 777,641 61.0% Yes Prior Consent No 1,275,000
Balloon 707,274 49.1% Yes Yes Yes 1,440,000
Balloon 621,625 54.1% Yes Silent Silent 1,150,000
Balloon 615,222 58.6% Yes Prior Consent No 1,050,000
Balloon 564,201 56.4% Yes Silent Silent 1,000,000
Balloon 285,606 51.9% Yes Silent Silent 550,000
Balloon 14,391,789 62.6% Yes Yes No 23,000,000
BALLOON 10,144,745 67.8% YES YES NO 15,000,000
Balloon 8,060,207 69.5% Yes Yes No 11,600,000
Balloon 2,084,537 61.3% Yes Yes No 3,400,000
Balloon 7,946,828 44.2% Yes Yes No 18,000,000
Balloon 9,082,659 57.9% Yes Yes No 15,700,000
Balloon 8,466,889 53.9% Yes Yes No 15,700,000
Balloon 7,444,850 65.0% Yes Yes No 11,450,000
Balloon 4,377,694 43.8% Yes Yes Yes 10,000,000
BALLOON 5,007,231 65.0% YES YES NO 7,700,000
Balloon 975,435 65.0% Yes Yes No 1,500,000
Balloon 2,406,072 65.0% Yes Yes No 3,700,000
Balloon 1,625,724 65.0% Yes Yes No 2,500,000
Balloon 4,224,868 64.5% Yes Yes No 6,550,000
Balloon 3,634,940 54.1% Yes Yes No 6,725,000
Balloon 3,786,799 67.7% Yes Yes No 5,590,000
Balloon 3,829,164 67.8% Yes Yes No 5,650,000
Fully Amortizing - 0.0% Yes Yes No 8,300,000
Balloon 3,402,168 58.9% Yes Prior Consent No 5,780,000
Balloon 3,166,059 33.3% Yes Yes No 9,500,000
Balloon 3,255,467 55.2% Yes Yes No 5,900,000
BALLOON 2,940,340 57.4% YES YES NO 5,125,000
Balloon 1,170,857 57.1% Yes Yes No 2,050,000
Balloon 971,612 58.0% Yes Yes No 1,675,000
Balloon 797,871 57.0% Yes Yes No 1,400,000
BALLOON 1,337,853 25.5% YES YES NO 5,260,000
Balloon 789,391 26.7% Yes Yes No 2,960,000
Balloon 548,462 23.9% Yes Yes No 2,300,000
Balloon 1,992,402 45.0% Yes Yes No 4,425,000
Balloon 2,900,185 65.6% Yes Yes No 4,422,000
BALLOON 2,571,339 40.6% YES YES NO 6,340,000
Balloon 365,017 40.6% Yes Yes No 900,000
Balloon 296,069 40.6% Yes Yes No 730,000
Balloon 300,125 40.6% Yes Yes No 740,000
Balloon 770,591 40.6% Yes Yes No 1,900,000
Balloon 472,494 40.6% Yes Yes No 1,165,000
Balloon 367,044 40.6% Yes Yes No 905,000
BALLOON 2,184,350 28.7% YES PRIOR CONSENT NO 7,625,000
Balloon 1,038,462 28.7% Yes Prior Consent No 3,625,000
Balloon 1,145,889 28.7% Yes Prior Consent No 4,000,000
HyperAm 2,667,380 60.6% Yes Yes No 4,400,000
Balloon 2,438,168 59.8% Yes Yes No 4,075,000
Balloon 2,481,717 56.6% Yes Yes No 4,385,000
Balloon 2,074,996 50.6% Yes Yes No 4,100,000
Balloon 2,531,947 70.3% Yes Yes No 3,600,000
Balloon 1,675,161 45.3% Yes Yes No 3,700,000
Balloon 2,288,685 44.9% Yes Yes No 5,100,000
Balloon 2,030,461 54.9% Yes Yes No 3,700,000
Balloon 1,670,194 55.2% Yes Yes No 3,025,000
Balloon 1,821,640 51.3% Yes Yes No 3,550,000
Balloon 1,249,840 40.3% Yes Yes No 3,100,000
Balloon 1,638,498 54.6% Yes Yes No 3,000,000
BALLOON 1,565,094 40.1% YES YES NO 3,900,000
Balloon 541,763 40.1% Yes Yes No 1,350,000
Balloon 321,045 40.1% Yes Yes No 800,000
Balloon 702,286 40.1% Yes Yes No 1,750,000
Balloon 1,740,747 59.5% Yes Yes No 2,925,000
Balloon 1,331,871 44.4% Yes Yes No 3,000,000
Balloon 1,429,342 38.4% Yes Yes No 3,725,000
Balloon 1,143,371 45.7% Yes Yes No 2,500,000
Balloon 1,250,660 58.2% Yes Yes No 2,150,000
Balloon 1,270,586 63.5% Yes Yes No 2,000,000
Balloon 1,006,816 47.5% Yes Yes No 2,120,000
Balloon 1,041,084 53.0% Yes Yes No 1,965,000
Balloon 953,408 63.6% Yes Yes No 1,500,000
Balloon 703,649 40.2% Yes Yes No 1,750,000
Balloon 1,003,828 66.9% Yes Yes No 1,500,000
Balloon 932,754 58.3% Yes Yes No 1,600,000
Balloon 889,178 62.2% Yes Yes No 1,430,000
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
APPRAISAL CURRENT NET LARGEST
VALUE "AS LTV YEAR YEAR OWNERSHIP RENTABLE TENANT
OF" DATE RATIO BUILT RENOVATED INTEREST SF / UNITS NAME
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
03/26/99 69.3% VARIOUS VARIOUS FEE SIMPLE 76,820 VARIOUS
03/26/99 69.2% 1980 1998 Fee Simple 31,173 TRW, Inc
03/26/99 69.4% 1979 1998 Fee Simple 45,647 BOCA Global, Inc
08/03/95 75.2% 1978 Fee Simple 240
12/17/98 96.6% 1995 Fee Simple 121,890 Kmart
03/12/99 68.2% 1991 Fee Simple 70,076 UT Starcom, Inc.
11/05/98 74.9% 1957-1968 Fee Simple 206
12/02/98 61.8% 1974 Fee Simple 202,191 Bike Athletic Company
08/03/98 71.5% 1970 Fee Simple 76
02/11/99 79.8% 1965 Fee Simple 97
07/21/98 69.7% VARIOUS VARIOUS VARIOUS 132
07/21/98 69.7% 1990 1994 Fee Simple 82
07/21/98 69.7% 1982 1987 Fee Simple 50
09/22/98 52.8% 1983 Fee Simple 28,787 County of Marin
02/22/99 66.6% 1971 1996-1998 Fee Simple 120
07/01/98 63.1% 1936 1980s Fee Simple 15,183 Presage Software
02/11/99 79.8% 1964 Fee Simple 66
12/07/98 73.1% 1968 1998 Fee Simple 136
10/27/98 62.0% 1982 1988 Fee Simple 32,295 Merry X Ray Chemical
11/04/98 71.9% 1991 Fee Simple 90,000 Thomson Consumer Electronics
11/05/98 57.8% 1903 1989 Fee Simple 24,409 Bullock, Smith & Partners
01/11/99 52.9% 1957/1968 1986 Fee Simple 53,059 Nationwide Furniture Warehouse
12/10/98 74.0% 1997 Fee Simple 52
02/11/99 79.8% 1962 Fee Simple 46
11/03/98 64.5% 1984 Fee Simple 71
VARIOUS 58.7% VARIOUS VARIOUS VARIOUS 2,318 NAP
03/30/99 58.7% 1985 1998-1999 Fee Simple 260 NAP
03/31/99 58.7% 1971 1996/1997 Fee Simple 130 NAP
03/31/99 58.7% 1979 1998 Fee Simple 155 NAP
03/30/99 58.7% 1989 Fee Simple 125 NAP
04/07/99 58.7% 1989 1998 Fee Simple 175 NAP
03/25/99 58.7% 1989 Fee Simple 174 NAP
04/04/99 58.7% 1966-1969 1996 Fee Simple 156 NAP
04/01/99 58.7% 1988 Fee Simple 167 NAP
03/26/99 58.7% 1990 Leasehold 115 NAP
03/26/99 58.7% 1987 1997/98 Leasehold 167 NAP
04/01/99 58.7% 1973 1996 Fee Simple 159 NAP
04/01/99 58.7% 1987 1996 Leasehold 108 NAP
03/25/99 58.7% 1989 Fee Simple 121 NAP
03/29/99 58.7% 1982 1998 Fee Simple 181 NAP
03/24/99 58.7% 1975 1998 Fee Simple 125 NAP
02/15/99 78.6% 1997-1999 Fee Simple 265,846 Sportmart
03/01/99 71.3% 1903 1983 Fee Simple 198,000 Barnes & Noble
03/05/99 77.5% 1985-1987 Fee Simple 250
03/20/98 70.8% 1998 Fee Simple 46,887 Litchfield's Toys
10/09/98 72.4% 1955-1979 Fee Simple 100,644 Grand Union
11/17/97 76.6% 1920 1994-1998 Fee Simple 218
06/16/98 64.4% 1998 Fee Simple 66,650 Brenden Theatres Corporation
05/25/98 79.4% circa 1987 or 88 Fee Simple 128,065 Trendsetter Furniture
04/02/98 74.0% 1983 Fee Simple 437
11/10/98 78.5% 1993 Leasehold 81,332 Mercy Integrated Health
02/16/98 74.2% 1988 Fee Simple 92,305 Office Depot
06/27/98 75.9% 1986 Fee Simple 50,423 Sabloff & Carlini M.D.
05/13/98 72.4% 1956 1989-1990 Fee Simple 199,938 Iowa DOT
11/16/98 75.3% 1955-1986 1985 Fee Simple 46,324 Jeanne Body Tech
12/14/98 63.9% 1988-1989 Fee Simple 93,763 Athletic Club
04/03/98 74.1% 1984 Fee Simple 142
07/01/98 58.7% 1988 Fee Simple 130
05/05/98 78.6% 1975-1978 Fee Simple 118
09/21/98 74.4% 1903-1913-1897 1988 Fee Simple 143
06/11/98 68.2% 1984 1994 Fee Simple 134
11/03/98 68.8% 1995-1996 Fee Simple 39,958 Destination Salon and Spa
06/09/98 71.3% 1983 Fee Simple 120
05/20/98 76.5% 1997 Leasehold 30,587 Border's Books
07/24/98 73.9% 1978 1989 Fee Simple and Leasehold35,673 D.L. Ryan Companies
06/19/98 78.1% 1974 1997 Fee Simple 99,556 ABCO
12/04/97 68.9% circa 1972 1995-1997 Fee Simple 148
09/15/97 73.6% 1989 1995 New pads Fee Simple 56,435 Drug Emporium, Inc.
05/02/98 76.3% VARIOUS VARIOUS VARIOUS 563 VARIOUS
05/02/98 76.3% 1988 Fee Simple 215
76.3% 1988 Fee Simple 186
76.3% 1976 Fee Simple 162
06/15/98 77.1% 1990 Fee Simple 148
08/13/98 79.1% 1984 Fee Simple 32,600 Coldwell Banker
07/14/98 62.1% 1967-1970 1985-1998 Fee Simple 307
06/15/98 77.9% 1991 Fee Simple 138
06/03/98 73.6% 1947 1986 Fee Simple 50,148 Hawaii Super Market
07/20/98 68.3% 1988 Fee Simple 96
07/01/98 50.9% 1993-1994 Fee Simple 33,222 Norwest Bank
11/19/98 68.7% 1986 Fee Simple 11,322 Laura Ashley, Inc.
06/11/98 66.6% 1920-1940 1984 Fee Simple 46,267 C. Raimondo & Sons Construction
03/26/98 68.8% 1958-1977 1977 Fee Simple 127
02/12/98 74.6% 1990 Fee Simple 22,395 Staples
02/01/99 74.6% 1998 Fee Simple 152,200 Essex Group, Inc
08/18/98 74.3% 1976-1977 Fee Simple 193,859 Freeman Decorating Company
06/30/98 57.3% 1980 Fee Simple 51
03/01/99 69.3% 1972 Fee Simple 213,600 Dow
04/28/98 81.9% 1990 Fee Simple 585
04/21/98 64.5% 1996 Fee Simple 120
02/18/98 42.2% 1988 Fee Simple 152
04/01/98 69.0% 1879 1985 Fee Simple 12,000 Fletcher Asset Management
08/31/98 68.3% 1968 Fee Simple 112
05/01/98 75.0% 1997 Fee Simple 60
02/23/98 73.9% 1987 Fee Simple 100
12/22/97 57.9% 1964 1981 Fee Simple 177
05/27/98 74.1% 1991 Fee Simple 40,526 GSA
12/16/98 68.3% 1984-1985 Fee Simple 102,624 Penrose
07/06/98 37.1% 1980-1982 Fee Simple 483
07/02/98 63.2% 1989 1995 Fee Simple 62,758 HUD
09/01/98 64.6% 1988 Fee Simple 49,308 Comfort Shoppe, Inc.
04/20/98 64.2% 1990 Fee Simple 29,855 Ultimate Video
12/04/97 66.4% 1992 Fee Simple 80
02/23/98 79.4% 1987 Fee Simple 51,164 Gold's Gym
02/13/98 76.5% 1973 1997 Fee Simple 26,804 Fidelity
09/24/98 66.1% 1973-1974 Fee Simple 62,850 Louapre and Kokemor
12/22/97 73.6% 1983 Fee Simple 82,120
04/01/98 64.4% 1941 Fee Simple 25,000 Mount Fuji Properties
06/25/98 79.2% 1998 Fee Simple 72
10/10/98 73.2% 1990 Fee Simple 22,626 Cort Furniture Rental Co
08/20/98 58.3% 1979 Fee Simple 77,632 Raymour & Flanigan Furniture
10/09/97 48.7% 1987 Fee Simple 94,085 Pharmhouse
12/03/98 67.6% 1963 1996 Fee Simple 110
04/02/98 53.0% 1967 1975 Fee Simple 46,165 Sanders Furniture
05/19/98 73.6% 1987 1991 Fee Simple 31,983 Chamness Relocation
05/12/98 77.1% 1930-1938 Fee Simple 23,600 CVS Drugs
01/02/98 76.3% circa 1987 Fee Simple 86
06/09/98 73.4% 1960 1997 Fee Simple 192
02/13/97 67.4% 1985 Fee Simple 27,126 DeDomenico Pizza & Restaurant
12/10/98 63.4% 1973 Fee Simple 124 Wendy's International, Inc.
08/05/98 79.6% 1987 1986 Fee Simple 41
06/02/98 69.5% 1974-1986 1985 Fee Simple 41,000 Walgreens
05/15/98 66.9% 1978-1979 Fee Simple 76,500 Stylecraft
10/12/98 57.2% 1990 Fee Simple 131
10/14/97 69.0% 1979-1996 Fee Simple 60
10/31/98 79.8% 1998 Fee Simple 14,932 Dollar Tree
08/06/98 71.6% 1924 1986 Fee Simple 32,398 Ansaphone, Inc.
12/04/97 60.5% circa 1970 1994 Fee Simple 60
08/10/98 75.7% circa 1903 1995-1996 Fee Simple 7,000 D'Agostino's Supermarket
06/01/98 70.4% 1997 Fee Simple 21,450 Sounds Easy Video
08/12/98 79.1% 1994 Fee Simple 13,160 Coldwell Banker
08/06/98 69.8% 1982 Fee Simple 11,250 L'Orience Nails and Skin
12/01/98 79.7% mid-70's 1996 Fee Simple 14,156 American Auto Parts
06/01/98 74.2% 1975 1998 Fee Simple 27,206 Veterans Administration
03/26/98 57.0% 1956 1986 Fee Simple 49,913 American Archives
10/04/98 69.2% 1996-1997 Fee Simple 10,125 Smyrna CVS, Inc.
09/18/98 77.0% 1988 Fee Simple 404
03/12/98 55.6% 1920 1998 Fee Simple 7,280 Mark Rubinoff (Barber)
10/28/98 60.6% circa 1989 over past 70+ yrs Fee Simple 16,891 Windemere RE
08/13/98 79.1% 1995 Fee Simple 10,500 Coldwell Banker
07/24/98 73.2% 1972 1976 Fee Simple 48
09/29/97 85.9% 1994-1996 Fee Simple 17,879 Kinkos
03/26/98 73.2% 1989 Fee Simple 33,507 Piggly Wiggly
03/05/98 50.8% 1900-1920 1997-99 Fee Simple 14,715 Lok Sing Restaurant
08/18/98 79.1% 1983 Fee Simple 10,500 Coldwell Banker
06/04/98 74.2% 1975 Fee Simple 46
08/03/98 64.6% 1987 Fee Simple 21,293
08/13/98 79.1% 1986 Fee Simple 11,100 Coldwell Banker
01/15/99 72.4% 1997-1997 Fee Simple 10,978 Hollywood Video
06/23/98 69.9% 1977 Fee Simple 24
04/15/98 62.3% 1960 1996 Fee Simple 87
03/31/98 59.4% 1961-1965 Fee Simple 61
08/06/98 64.3% 1975 1991 Fee Simple 42
12/31/98 71.5% circa 1936 1996 Fee Simple 5,000 Trade Fair Supermarket
03/26/98 79.1% 1900's 1997 Fee Simple 17
08/08/97 69.9% 1974 Fee Simple 50
05/20/98 55.1% circa 1982 Fee Simple 8,746 Robert G. Dinmore
08/07/98 68.6% 1977 Fee Simple 33,770 Kinetic Concepts Inc.
08/05/98 69.8% 1975 Fee Simple 99
03/20/98 44.8% 1965 Fee Simple 32
07/08/98 37.7% 1986 Fee Simple 17,858 Brandley's Cantina
07/13/98 75.8% 1973 Fee Simple 12
06/22/98 77.2% 1970 1995 Fee Simple 14
06/23/98 45.4% 1997 Fee Simple 9,646 Colotex Electrical Supply
01/18/99 78.1% 1979 1997 Fee Simple 317,500 Emery Worldwide Airlines, Inc.
VARIOUS 74.9% VARIOUS VARIOUS FEE SIMPLE 389
03/17/99 74.8% 1982 Fee Simple 40
03/17/99 76.6% 1985 ON-GOING Fee Simple 87
03/16/99 74.8% 1987 Fee Simple 63
03/18/99 74.5% 1986 Fee Simple 66
03/23/99 74.8% 1985 Fee Simple 70
03/16/99 73.7% 1987 ON-GOING Fee Simple 63
VARIOUS 73.3% VARIOUS FEE SIMPLE 377
12/09/98 69.5% 1985 Fee Simple 63
12/08/98 60.3% 1987 Fee Simple 53
12/09/98 72.0% 1984 Fee Simple 65
12/08/98 77.1% 1986 Fee Simple 97
12/08/98 77.9% 1985 Fee Simple 99
08/07/98 74.9% 1988 Fee Simple 252,680 Hamilton Fixtures Company
VARIOUS 53.6% VARIOUS VARIOUS FEE SIMPLE 415
12/10/98 55.3% 1983 1995 Fee Simple 148
12/11/98 61.3% 1976 1992/1995/1998 Fee Simple 106
12/11/98 45.8% 1983 1998 Fee Simple 161
07/28/98 79.7% 1991 Fee Simple 127,691 K-Mart Corp. Store #3934
10/01/98 68.4% 1996/1997 Fee Simple 51,808 Office Max, Inc.
10/29/98 62.6% 1995-1996 Fee Simple 78
02/25/98 77.4% 1965 1996 Fee Simple 79
02/04/99 71.7% 1973 Fee Simple 295
10/01/98 56.9% VARIOUS VARIOUS VARIOUS 38,921 VARIOUS
10/01/98 56.9% 1976 & 1984 1996 Fee Simple 27,100 Sears Roebuck & Co. (Hardware)
10/01/98 56.9% 1978-CVS, 1998-T1995-CVS Fee Simple 11,821 CVS Pharmacy
03/23/99 75.4% 1978 Fee Simple 127
11/01/98 53.5% 1974 1986 Fee Simple 38,000 Youngstown Area Comm Actn Cncl
04/06/98 76.2% 1964,1965 Fee Simple 63
12/23/98 55.7% 1996 Fee Simple 70,250
12/08/98 66.1% 1986 Fee Simple 80
03/17/99 74.8% 1985 ON-GOING Fee Simple 77
09/13/98 74.6% 1968 1997 Fee Simple 127
09/15/98 63.3% 1995-96 Fee Simple 23,314 Zetec, Inc.
10/30/98 74.6% 1978 Fee Simple 40,258 Continental Divide
12/12/98 64.1% 1986 Fee Simple 87
12/08/98 72.1% 1984 Fee Simple 61
05/13/98 72.2% 1997 Fee Simple 10,000 Big 5 Sporting Goods
05/22/98 73.9% 1997 Fee Simple 10,000 Big 5 Sporting Goods
12/11/98 59.7% 1986 1996-1997 Fee Simple 44
04/02/99 65.1% 1974 Fee Simple 32,539 Family Dollar Stores of Ohio
08/17/98 71.0% 1962 Fee Simple 33,231 CVS/Revco Drug Store
01/12/99 67.4% 1958/1974 1983 Fee Simple 22,207 Unistrut Western
04/26/99 63.6% 1958 Fee Simple 29
04/06/99 76.3% 1998 Leasehold 262,269 Kohl's Department Store
12/03/98 77.8% VARIOUS FEE SIMPLE ####### VARIOUS
12/03/98 79.7% 1987 Fee Simple 209,143 BJ's Wholesale Club
12/03/98 70.3% 1986 Fee Simple 31,264 Party City
02/26/99 63.8% 1976 - 1980 1996 Leasehold 406,359 Waremart foods
08/27/98 67.7% 1988 Fee Simple 212
11/20/98 66.2% 1984 1996-1998 Fee Simple 148,512 BankBoston
04/07/99 73.9% 1970 1986 Fee Simple 134,067 Periphonics
04/01/99 57.9% 1984 1990 Fee Simple 85,716 BeautiControl Inc.
01/26/99 74.8% VARIOUS VARIOUS VARIOUS 554 VARIOUS
01/26/99 74.8% 1986/1991 Fee Simple 120
01/26/99 74.8% 1978 288
01/26/99 74.8% 1996 146
03/11/99 74.3% 1986 Fee Simple 145
01/06/99 71.5% 1975 1994 Fee Simple 89,977 GSA - Department of Justice
05/05/99 79.1% 1972 1998 Fee Simple 164
01/25/99 77.7% 1984 Fee Simple 272
05/12/99 51.9% 1994/1998 Leasehold 136,413 Iron Mountain
06/22/98 73.4% 1947/61/74/94/96/91986 Fee Simple 83,660 Revco Discount Drug (CVS)
12/15/98 44.0% 1917 1990 Fee Simple 253,045 Cisco Systems
03/30/99 69.3% 1990-1991 Fee Simple 120
09/02/98 71.8% VARIOUS FEE SIMPLE 246
09/02/98 71.6% 1965 - 1974 Fee Simple 120
09/02/98 72.7% 1976 Fee Simple 66
09/02/98 71.1% 1976 Fee Simple 60
04/08/99 65.1% VARIOUS VARIOUS FEE SIMPLE 284
04/08/99 68.0% 1974 1998 Fee Simple 168
04/08/99 60.8% 1976 Fee Simple 116
02/15/99 75.8% 1998 Fee Simple 30,450 Office Depot, Inc.
01/21/99 74.8% 1977 & 1995 1996 Fee Simple 52,221 Scolaris Food & Drug
VARIOUS 51.7% VARIOUS VARIOUS VARIOUS 19,223 VARIOUS
02/02/99 51.7% 1998 Fee Simple 2,950 Arby's Restaurant
02/15/99 51.7% 1992 Fee Simple 2,252 Taco Bell Restaurant
02/15/99 51.7% 1994 Fee Simple 2,269 Taco Bell (Unit # 16393)
02/05/99 51.7% 1998 Fee Simple 6,385 Tony Roma's (Romacorp, Inc.)
02/20/99 51.7% 1998 Fee Simple 2,164 Del Taco Restaurant
02/04/99 51.7% 1998 Fee Simple 3,203 Winger's USA
01/11/99 40.1% VARIOUS VARIOUS VARIOUS 150
01/11/99 40.1% 1958 1991 Fee Simple 83
01/11/99 40.1% 1962 1991 Fee Simple 67
03/31/99 69.3% 1998 Fee Simple 13,905 Walgreens
01/26/99 74.2% 1974 1998 Fee Simple 134
04/14/99 68.3% 1964, 1968-69 1996-97 Fee Simple 66
09/04/98 72.7% 1970-1973 Fee Simple 104
01/07/99 79.0% 1988 Fee Simple 46
02/12/99 76.2% 1998 Fee Simple 29,951 Office Depot, Inc.
12/02/98 54.7% 1982 1985 Fee Simple 42,259 Pike Place Brewing
12/07/98 67.2% 1972 Fee Simple 105,600 K.V.R. Investment Group, Inc.
04/12/99 79.7% 1969 1998 Fee Simple 160
01/11/99 62.8% 1980 Fee Simple 57,282 Thrift Land
02/26/99 67.4% 1997 Fee Simple 52,145 Somers Convention Furniture
02/10/99 67.4% 1965 - 1968 1997 Fee Simple 80,982 Logan's Grocery
VARIOUS 51.1% VARIOUS VARIOUS VARIOUS 11,321 VARIOUS
02/15/99 51.1% 1998 Fee Simple 2,669 Jack-in-the-Box
02/15/99 51.1% 1990 Fee Simple 2,355 Taco Bell Restaurant
02/05/99 51.1% 1998 Fee Simple 6,297 Tony Roma's Restaurant
04/05/99 67.5% 1984 Fee Simple 35,915 Sports Arenas
04/17/99 58.7% 1991 Fee Simple 27,747 Winan's Furniture
03/03/99 45.6% 1965 Fee Simple 52
01/20/99 66.4% 1998 Fee Simple 16,500 Advance Auto Parts
01/22/99 71.9% 1984 Fee Simple 36,138 Stony Brook Family Medical
01/15/99 72.8% 1986-1988 Fee Simple 72
09/22/98 67.3% 1865 1989 & 1998 Fee Simple 45
03/22/99 66.0% 1972 Fee Simple 112
02/10/99 78.6% 1995 & 1998 Fee Simple 122
11/16/98 67.1% 1986 - 1987 Fee Simple 20,251 Chang's Garden Chinese Rest.
01/20/99 76.3% 1954 1991 Fee Simple 42
01/19/99 70.4% 1920 1997 & 1999 Fee Simple 37,455 Landmark America LLC
12/02/98 69.8% 1916 1996 Fee Simple 30
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
LARGEST
TENANT
SF AS PHYSICAL ORIGINAL
LARGEST A % OCCUPANCY OCCUPANCY LTV
TENANT SF OF TOTAL % AS OF DATE RATIO 1997 NOI 1998 NOI
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Various Various 100.0% 03/26/99 69.4% 0 0
31,173 100.0% 100.0% 03/26/99 69.3% 0 0
45,647 100.0% 100.0% 03/26/99 69.5% 0 0
95.4% 04/01/99 78.0% 771,391 781,639
121,890 100.0% 100.0% 12/17/98 97.0% 655,977 655,977
25,576 36.5% 100.0% 03/12/99 68.3% 870,336 854,586
96.0% 02/01/99 75.0% 395,460 364,044
202,191 100.0% 100.0% 12/02/98 62.2% 0 0
97.4% 03/01/99 71.6% 263,717 281,613
93.0% 03/31/99 80.0% 224,115 318,739
70.0% 421,536 531,689
60.9% 12/31/98 70.0% 352,462 409,990
63.0% 12/31/98 70.0% 150,372 158,815
7,743 26.9% 100.0% 05/13/99 55.7% 293,911 246,983
100.0% 04/01/99 66.7% 181,594 228,417
8,536 56.2% 100.0% 03/31/99 63.9% 223,702 248,748
95.0% 03/31/99 80.0% 138,664 228,459
79.4% 03/31/99 73.3% 180,222 178,813
4,295 13.3% 100.0% 09/10/98 62.2% 212,897 200,011
90,000 100.0% 100.0% 03/31/99 72.5% 194,990 204,285
9,440 38.7% 100.0% 03/31/99 58.3% 294,305 296,936
13,154 24.8% 100.0% 04/20/99 52.9% 268,124 276,197
100.0% 12/31/98 74.3% 0 94,833
91.0% 03/31/99 80.0% 103,486 140,839
95.8% 04/01/99 64.6% 113,823 126,839
58.9% $12,107,690 $13,116,819
60.6% 01/31/99 58.9% 1,964,369 2,086,240
72.8% 01/31/99 58.9% 620,142 635,525
81.6% 01/31/99 58.9% 1,187,268 1,658,051
82.3% 01/31/99 58.9% 734,607 699,497
67.2% 01/31/99 58.9% 1,575,647 1,349,983
71.7% 01/31/99 58.9% 1,439,100 1,441,918
70.4% 01/31/99 58.9% 619,761 789,915
70.2% 01/31/99 58.9% 1,040,279 1,097,561
76.9% 01/31/99 58.9% 585,231 649,421
73.8% 01/31/99 58.9% 142,934 247,389
54.9% 01/31/99 58.9% 240,394 320,024
54.5% 01/31/99 58.9% 146,921 159,339
72.5% 01/31/99 58.9% 856,572 1,010,484
67.1% 01/31/99 58.9% 954,465 971,472
60.2% 01/31/99 58.9% 0 0
42,400 16.0% 100.0% 03/19/99 78.8% 0 0
144,000 72.7% 100.0% 04/29/99 71.5% 3,260,820 3,195,173
94.0% 03/30/99 77.7% 956,135 1,110,127
3,244 6.9% 90.0% 03/08/99 71.4% 0 1,093,872
40,920 40.7% 97.0% 05/27/99 73.0% 1,155,447 1,128,981
96.4% 12/31/98 77.5% 1,158,380 787,733
66,650 100.0% 100.0% 07/01/98 64.9% 0 0
15,000 11.7% 91.0% 05/19/99 80.0% 884,908 1,140,607
93.0% 03/01/99 75.0% 1,194,813 1,146,198
11,586 14.3% 96.3% 02/07/99 78.6% 1,002,292 876,576
25,000 27.1% 97.0% 03/26/99 74.9% 290,956 532,995
8,856 17.6% 100.0% 07/01/98 76.5% 520,864 597,650
49,038 24.5% 100.0% 06/01/99 73.9% 984,292 1,033,009
20,770 44.8% 100.0% 03/25/99 75.8% 753,991 775,952
15,435 16.5% 94.0% 03/01/99 64.3% 305,896 973,441
82.5% 04/30/98 75.0% 0 1,156,000
76.2% 07/31/98 59.2% 1,171,143 1,187,069
99.0% 04/30/99 79.2% 0 0
99.0% 12/01/98 74.7% 621,713 721,903
68.9% 06/30/98 69.6% 963,766 812,878
5,230 13.1% 94.5% 12/01/98 69.2% 795,555 710,463
94.0% 06/30/98 72.0% 797,877 961,000
15,648 51.2% 100.0% 03/25/99 77.2% 0 458,847
35,673 100.0% 100.0% 09/01/98 74.8% 0 0
26,620 26.7% 93.0% 12/31/98 79.1% 724,438 597,590
95.0% 10/09/98 69.7% 579,451 687,573
25,000 44.3% 100.0% 12/31/98 74.6% 614,045 665,333
76.9% 660,109 0
100.0% 08/01/98 76.9% 660,109 0
100.0% 76.9% 0 0
0.0% 76.9% 0 0
97.0% 12/31/98 77.7% 468,668 485,678
32,000 98.2% 100.0% 09/18/98 80.0% 337,201 694,677
94.0% 07/07/98 62.8% 348,607 723,642
100.0% 12/31/98 78.5% 456,892 478,348
43,384 86.5% 100.0% 08/01/98 75.0% -190,435 0
76.0% 04/30/98 69.4% 764,000 764,782
3,550 10.7% 96.0% 06/03/99 52.5% 787,426 839,316
1,733 15.3% 100.0% 11/30/98 68.9% 570,579 628,534
12,425 26.9% 100.0% 05/31/99 67.2% 531,454 590,660
88.1% 12/31/98 69.2% 806,285 1,082,527
18,851 84.2% 100.0% 04/28/98 75.5% 572,536 610,878
152,200 100.0% 100.0% 01/22/99 74.8% 0 0
193,859 100.0% 100.0% 08/24/98 74.9% 475,148 0
50.0% 07/01/98 58.0% 901,825 1,554,907
160,200 75.0% 100.0% 11/24/98 69.7% 471,518 522,800
100.0% 05/01/99 82.8% 485,541 456,915
86.0% 06/30/98 65.3% 262,796 559,312
96.0% 12/31/98 42.7% 1,215,157 1,471,055
12,000 100.0% 100.0% 06/19/98 70.0% 0 0
94.0% 02/11/99 68.9% 612,200 650,447
100.0% 01/15/99 75.5% 0 486,259
99.0% 03/04/98 75.0% 494,975 566,792
97.0% 05/01/98 58.8% 444,528 0
40,526 100.0% 100.0% 07/08/98 75.0% 420,408 439,747
11,700 11.4% 100.0% 03/01/99 68.6% 547,063 677,327
97.0% 02/01/99 37.6% 881,662 847,376
5,847 9.3% 91.0% 06/01/98 63.6% 194,560 263,672
17,365 35.2% 100.0% 02/28/99 65.1% 461,401 503,918
6,750 22.6% 96.0% 05/01/99 64.8% 542,234 648,602
100.0% 12/19/97 67.4% 478,065 367,920
16,267 31.8% 97.7% 04/01/99 80.0% 381,362 438,621
3,430 12.8% 95.0% 04/01/99 77.1% 256,995 324,809
8,914 14.2% 93.4% 09/30/98 66.5% 416,290 473,393
100.0% 04/30/99 75.6% 552,368 530,339
18,600 74.4% 80.1% 03/01/99 65.2% 481,523 537,201
96.0% 12/31/98 80.0% 0 0
5,000 22.1% 100.0% 02/26/99 73.4% 0 0
75,000 96.6% 100.0% 11/17/98 58.7% 0 0
28,500 30.3% 93.2% 05/04/99 52.7% 562,829 682,782
60.0% 10/31/98 68.0% 379,385 599,539
9,067 19.6% 100.0% 04/21/99 54.2% 501,855 522,810
5,363 16.8% 97.0% 08/31/98 74.6% 332,903 299,076
11,500 48.7% 100.0% 03/25/99 77.8% 286,107 366,771
91.0% 07/14/98 76.9% 327,499 500,524
97.0% 05/01/99 74.7% 0 150,155
2,744 10.1% 84.0% 10/01/98 59.4% 204,216 318,646
2,517 6.0% 52.9% 11/01/97 63.5% 444,573 495,357
100.0% 04/19/99 80.0% 264,181 273,382
15,500 37.8% 100.0% 06/30/98 70.0% 324,328 345,708
7,650 10.0% 100.0% 05/12/99 67.7% 270,418 245,010
89.0% 06/30/98 57.5% 265,788 274,498
93.0% 12/31/98 70.5% 0 179,518
4,800 32.2% 100.0% 01/06/99 80.0% 0 23,189
4,552 14.1% 100.0% 03/01/99 72.0% 213,081 215,161
100.0% 04/19/99 61.2% 142,781 217,124
7,000 100.0% 100.0% 07/20/98 76.1% 0 0
4,850 22.6% 100.0% 04/08/99 71.7% 0 141,764
9,790 74.4% 100.0% 12/31/98 80.0% 206,005 251,016
2,000 17.8% 100.0% 04/21/99 70.5% 158,044 235,792
2,000 14.1% 100.0% 05/11/99 80.0% 139,001 145,901
9,999 36.8% 95.0% 01/28/99 75.0% 155,166 197,446
13,475 27.0% 100.0% 04/28/98 57.7% 205,262 361,830
10,125 100.0% 100.0% 02/12/99 70.1% 0 189,009
100.0% 01/25/99 77.3% 197,770 198,087
2,400 33.0% 100.0% 03/30/99 56.6% 170,053 246,585
4,971 29.4% 100.0% 03/31/99 60.9% 229,713 229,514
10,500 100.0% 100.0% 09/18/98 80.0% 171,289 211,516
96.0% 03/01/98 73.7% 193,849 234,738
6,048 33.8% 100.0% 03/31/99 87.5% 147,689 190,308
18,356 54.8% 100.0% 05/28/99 74.1% 187,462 194,472
4,376 29.7% 100.0% 10/31/98 51.4% 0 190,399
8,750 83.3% 100.0% 09/18/98 80.0% 108,422 179,822
95.0% 06/26/98 74.8% 138,406 219,872
100.0% 02/28/99 65.7% 163,666 146,510
11,100 100.0% 100.0% 09/18/98 80.0% 98,072 165,625
6,950 63.3% 100.0% 12/31/98 72.5% 0 178,836
92.0% 03/31/99 70.7% 135,782 136,207
99.0% 12/31/98 62.9% 107,409 158,691
72.0% 05/01/98 60.2% 234,308 246,973
80.0% 07/01/98 64.8% 237,681 292,311
5,000 100.0% 100.0% 71.8% 126,320 126,000
100.0% 03/25/98 80.0% 0 138,071
90.0% 07/31/98 73.1% 128,239 108,577
3,978 45.5% 100.0% 07/16/98 55.9% 85,525 102,292
4,320 12.8% 92.0% 12/01/98 69.3% 80,471 92,400
98.0% 11/16/98 70.0% 106,640 102,623
100.0% 04/12/99 45.5% 84,870 153,024
5,363 30.0% 100.0% 12/31/98 38.5% 145,588 195,407
100.0% 06/18/98 76.5% 39,970 48,906
100.0% 07/27/98 78.0% 45,882 51,754
6,431 66.7% 100.0% 04/21/98 46.2% 0 55,228
317,500 100.0% 100.0% 04/30/99 78.2% 0 0
94.7% VARIOUS 75.0% 1,093,396 1,330,846
92.5% 02/22/99 75.0% 68,103 101,234
89.7% 04/22/99 76.7% 200,893 242,342
100.0% 04/23/99 75.0% 214,156 279,454
92.4% 04/22/99 74.6% 183,927 210,752
97.1% 04/23/99 75.0% 197,295 212,913
95.2% 04/22/99 73.9% 229,022 284,151
92.9% 03/25/99 73.8% 969,052 1,061,071
96.8% 03/25/99 70.0% 146,925 151,771
94.3% 03/25/99 60.7% 145,073 141,138
92.3% 03/25/99 72.5% 125,716 161,271
93.8% 03/25/99 77.7% 241,063 287,471
89.9% 03/25/99 78.4% 310,275 319,420
252,680 100.0% 100.0% 12/01/98 75.0% 534,948 587,140
95.2% VARIOUS 54.0% 921,445 996,227
88.5% 02/26/99 55.7% 346,039 373,422
99.1% 03/25/99 61.7% 259,099 302,490
98.8% 03/25/99 46.1% 316,307 320,315
86,479 67.7% 100.0% 12/31/98 80.0% 650,801 639,238
23,315 45.0% 100.0% 05/01/99 68.9% 209,921 508,061
84.6% 04/21/99 63.2% 459,275 556,778
98.7% 05/01/99 77.9% 419,038 433,165
95.9% 02/09/99 71.8% 251,854 295,475
58.1% 435,233 368,931
21,000 77.5% 100.0% 12/08/98 58.1% 253,334 257,498
9,700 82.1% 100.0% 12/07/98 58.1% 181,899 111,433
96.8% 04/23/99 75.6% 332,314 359,855
13,414 35.3% 93.7% 03/28/99 53.7% 210,648 332,614
98.4% 05/01/99 76.9% 194,433 218,042
90.0% 03/23/99 55.9% 145,676 301,476
96.3% 03/25/99 66.5% 186,915 247,524
97.4% 04/22/99 75.0% 197,418 229,587
96.9% 03/31/99 75.0% 172,451 189,931
23,314 100.0% 100.0% 03/31/99 63.7% 179,860 190,462
15,576 38.7% 100.0% 05/01/99 75.0% 199,115 198,574
90.8% 03/25/99 64.6% 182,319 195,127
83.6% 02/26/99 72.6% 148,850 156,002
10,000 100.0% 100.0% 04/01/99 72.7% 0 117,448
10,000 100.0% 100.0% 04/01/99 74.4% 0 113,891
97.7% 03/25/99 60.1% 119,462 158,594
8,300 25.5% 89.4% 03/01/99 65.2% 160,913 160,221
13,000 39.1% 88.4% 04/29/99 71.4% 118,439 116,451
16,227 73.1% 100.0% 03/15/99 67.5% 98,178 100,830
93.1% 01/01/99 63.6% 69,232 70,307
86,584 33.0% 88.9% 05/13/99 76.3% 0 0
VARIOUS VARIOUS 96.5% 01/28/99 78.1% 1,305,953 1,416,475
119,330 57.1% 99.3% 01/28/99 80.0% 1,305,953 1,416,475
6,899 22.1% 85.9% 01/28/99 70.6% 0 0
52,759 13.0% 93.0% 05/17/99 63.9% 1,719,939 1,753,436
93.9% 04/01/99 68.2% 1,014,855 0
73,656 49.6% 95.0% 04/01/99 66.4% 710,405 789,230
54,820 40.9% 99.0% 03/18/99 73.9% 97,623 1,004,422
85,716 100.0% 100.0% 05/14/99 58.0% 0 0
74.9% 674,337 709,012
99.2% 03/10/99 74.9% 110,343 73,134
100.0% 04/01/99 74.9% 402,975 411,192
100.0% 03/10/99 74.9% 161,019 224,686
98.0% 03/01/99 74.4% 612,173 605,648
30,626 34.0% 92.7% 02/28/99 71.8% 679,741 727,671
85.4% 03/01/99 79.8% 458,211 0
92.3% 02/04/99 77.9% 543,168 563,781
136,413 100.0% 100.0% 04/13/99 52.6% 0 0
13,832 16.5% 97.1% 01/04/99 74.4% 535,400 593,495
70,554 27.9% 86.3% 02/03/99 44.2% 655,625 817,357
100.0% 03/29/99 69.5% 570,823 570,631
98.7% VARIOUS 72.2% 538,984 601,054
99.2% 03/17/99 72.0% 215,948 270,257
98.5% 03/17/99 73.1% 175,366 168,873
98.3% 01/13/99 71.4% 147,670 161,924
93.6% 04/30/99 65.1% 409,834 462,962
94.6% 04/30/99 68.1% 249,871 267,502
92.0% 04/30/99 60.9% 159,963 195,460
30,450 100.0% 100.0% 03/05/99 75.9% 0 0
41,370 79.2% 100.0% 03/03/99 75.0% 353,833 427,404
51.7% 0 0
2,950 100.0% 100.0% 02/01/99 51.7% 0 0
2,252 100.0% 100.0% 04/19/99 51.7% 0 0
2,269 100.0% 100.0% 04/19/99 51.7% 0 0
6,385 100.0% 100.0% 01/04/99 51.7% 0 0
2,164 100.0% 100.0% 01/11/99 51.7% 0 0
3,203 100.0% 100.0% 01/11/99 51.7% 0 0
40.4% 1,128,143 0
89.0% 02/01/99 40.4% 697,190 0
97.7% 01/31/99 40.4% 430,953 0
13,905 100.0% 100.0% 04/27/99 69.3% 0 0
96.3% 03/01/99 74.5% 373,457 473,028
100.0% 02/25/99 68.4% 439,943 448,156
89.4% 01/31/99 73.2% 495,797 468,603
93.5% 02/01/99 79.2% 324,376 366,123
29,951 100.0% 100.0% 03/05/99 76.4% 0 0
20,017 47.4% 100.0% 02/01/99 54.9% 427,037 470,423
19,200 18.2% 100.0% 03/23/99 67.6% 0 329,005
98.1% 04/26/99 79.8% 226,748 0
20,232 35.3% 84.5% 03/30/99 63.1% 136,699 295,463
52,145 100.0% 100.0% 03/15/99 67.7% 0 0
26,218 32.4% 100.0% 05/03/99 67.5% 286,406 316,192
51.1% 0 0
2,669 100.0% 100.0% 01/11/99 51.1% 0 0
2,355 100.0% 100.0% 01/11/99 51.1% 0 0
6,297 100.0% 100.0% 01/11/99 51.1% 0 0
4,924 13.7% 97.0% 04/29/99 67.5% 243,387 225,502
18,440 66.5% 100.0% 04/22/99 58.8% 252,213 267,734
100.0% 03/30/99 45.6% 206,387 264,799
7,000 42.4% 100.0% 03/08/99 66.7% 0 90,928
4,250 11.8% 90.2% 04/28/99 72.1% 164,267 218,969
98.6% 01/12/99 73.0% 185,952 206,847
100.0% 03/16/99 67.6% 114,256 183,836
99.1% 03/15/99 66.2% 152,835 -270,682
95.1% 04/12/99 78.7% 0 123,228
4,700 23.2% 100.0% 01/14/99 67.7% 173,218 169,115
92.9% 02/05/99 76.5% 142,817 149,700
10,702 28.6% 96.3% 03/22/99 70.5% 66,102 82,122
100.0% 02/01/99 69.9% 126,413 126,096
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
ANNUAL
ANNUAL UNDERWRITTEN U/W NET
UNDERWRITTEN UNDERWRITTEN REPLACEMENT CASH
UNDERWRITTEN NET REPLACEMENT RESERVES U/W NOI FLOW
NOI CASH FLOW RESERVES PER UNIT/SF DSCR DSCR
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1,526,287 1,400,712 11,523.00 0.15 1.44 1.32
619,357 568,725 4,676.00 0.15 1.44 1.32
906,930 831,987 6,847.00 0.15 1.44 1.32
777,740 777,740 18,000.00 75.00 1.23 1.23
636,364 636,364 0.00 0.00 1.01 1.01
780,168 688,177 13,314.00 0.19 1.57 1.39
372,403 372,403 10,300.00 50.00 1.25 1.25
394,029 339,900 48,526.00 0.24 1.60 1.38
283,874 283,874 3,800.00 50.00 1.17 1.17
285,696 285,696 24,250.00 250.00 1.32 1.32
455,073 455,073 52,460.00 397.42 1.72 1.72
0 0 0.00 1.72 1.72
0 0 0.00 1.72 1.72
332,482 280,731 6,621.00 0.23 1.83 1.54
240,013 240,013 6,000.00 50.00 1.46 1.46
234,931 215,775 3,188.00 0.21 1.43 1.31
192,903 192,903 16,500.00 250.00 1.47 1.47
188,391 188,391 3,400.00 25.00 1.36 1.36
193,819 175,625 3,230.00 0.10 1.47 1.34
188,222 172,812 9,000.00 0.10 1.45 1.33
193,972 172,974 11,472.00 0.47 1.46 1.30
288,570 249,019 11,142.00 0.21 2.21 1.91
132,071 132,071 1,300.00 25.00 1.21 1.21
126,067 126,067 11,500.00 250.00 1.42 1.42
123,037 123,037 3,550.00 50.00 1.25 1.25
$10,765,635 $10,765,635 $2,685,185.00 $1,158.48 1.66 1.66
1,838,964 1,838,964 327,301.00 1,258.85 1.66 1.66
493,504 493,504 156,711.00 1,205.47 1.66 1.66
1,310,533 1,310,533 280,399.00 1,809.03 1.66 1.66
521,163 521,163 95,517.00 764.14 1.66 1.66
1,113,187 1,113,187 203,795.00 1,164.54 1.66 1.66
1,196,328 1,196,328 224,908.00 1,292.57 1.66 1.66
632,685 632,685 198,534.00 1,272.65 1.66 1.66
918,118 918,118 198,743.00 1,190.08 1.66 1.66
516,342 516,342 103,352.00 898.71 1.66 1.66
126,629 126,629 168,728.00 1,010.35 1.66 1.66
165,843 165,843 178,140.00 1,120.38 1.66 1.66
94,020 94,020 54,747.00 506.92 1.66 1.66
880,429 880,429 113,904.00 941.36 1.66 1.66
755,886 755,886 258,894.00 1,430.35 1.66 1.66
202,003 202,003 121,512.00 972.10 1.66 1.66
4,222,747 4,129,843 26,544.00 0.10 1.29 1.26
3,218,939 3,009,796 38,007.00 0.19 1.38 1.29
1,178,138 1,178,138 85,716.00 342.86 1.25 1.25
1,244,132 1,179,983 4,713.00 0.10 1.41 1.33
1,197,098 1,148,472 16,463.00 0.16 1.32 1.27
1,017,197 1,017,197 43,600.00 200.00 1.25 1.25
1,312,699 1,312,699 27,606.00 0.41 1.50 1.50
1,171,239 1,026,526 12,807.00 0.10 1.72 1.51
1,058,090 1,058,090 143,375.00 328.09 1.41 1.41
1,000,060 921,373 12,200.00 0.15 1.36 1.25
1,024,493 936,632 16,620.00 0.18 1.51 1.38
772,040 772,040 53,757.00 1.07 1.23 1.23
942,013 845,358 43,711.00 0.22 1.49 1.34
698,495 652,347 4,632.00 0.10 1.34 1.25
829,734 650,464 9,376.00 0.10 1.59 1.25
792,085 792,085 118,445.00 834.12 1.52 1.52
878,772 878,772 132,613.00 1,020.10 1.61 1.61
585,849 585,849 37,101.00 314.42 1.28 1.28
633,131 633,131 62,205.00 435.00 1.29 1.29
753,024 753,024 112,848.00 842.15 1.38 1.38
655,888 622,163 7,824.00 0.20 1.34 1.28
832,055 832,055 30,000.00 250.00 1.77 1.77
569,122 538,836 4,588.00 0.15 1.32 1.25
586,013 571,930 13,912.00 0.39 1.33 1.30
670,149 588,660 19,911.00 0.20 1.51 1.33
552,827 552,827 41,182.00 278.26 1.35 1.35
574,134 545,916 11,287.00 0.20 1.34 1.27
577,659 577,659 32.99 1.49 1.49
577,659 577,659 18,573.00 86.39 1.49 1.49
0 0 0.00 0.00 1.49 1.49
0 0 0.00 0.00 1.49 1.49
436,354 436,354 47,689.00 322.22 1.14 1.14
591,520 553,556 4,890.00 0.15 1.45 1.36
585,235 585,235 69,271.00 225.64 1.47 1.47
426,381 426,381 40,831.00 295.88 1.17 1.17
568,215 536,769 10,012.00 0.20 1.28 1.21
619,687 619,687 89,142.00 928.56 1.52 1.52
734,896 692,610 7,406.00 0.22 1.59 1.50
478,926 459,301 1,132.00 0.10 1.32 1.27
535,377 493,597 6,940.00 0.15 1.44 1.33
830,819 830,819 31,750.00 250.00 2.42 2.42
536,075 513,680 3,359.00 0.15 1.47 1.41
438,321 427,474 15,220.00 0.10 1.31 1.27
475,190 443,584 19,462.00 0.10 1.36 1.27
1,594,392 1,594,392 34,425.00 675.00 3.76 3.76
570,092 495,092 21,360.00 0.10 1.47 1.28
456,254 456,254 8,343.00 14.26 1.34 1.34
540,492 540,492 36,000.00 300.00 1.57 1.57
671,339 671,339 48,567.00 319.52 2.00 2.00
432,080 411,800 3,809.00 0.32 1.31 1.24
565,932 565,932 28,000.00 250.00 1.75 1.75
427,785 427,785 18,000.00 300.00 1.34 1.34
514,073 514,073 30,000.00 300.00 1.54 1.54
439,690 439,690 44,250.00 250.00 1.43 1.43
414,091 373,565 27,786.00 0.69 1.35 1.22
638,801 572,176 17,381.00 0.17 1.97 1.77
738,358 738,358 171,383.00 354.83 2.47 2.47
511,979 438,473 15,500.00 0.25 1.67 1.43
449,009 413,470 14,792.00 0.30 1.60 1.47
510,404 459,265 4,478.00 0.15 1.78 1.60
432,980 432,980 16,000.00 200.00 1.63 1.63
453,124 425,461 7,379.00 0.14 1.75 1.64
385,010 357,571 5,360.00 0.20 1.42 1.32
421,135 362,031 12,570.00 0.20 1.48 1.27
415,296 415,296 33,104.00 0.40 1.39 1.39
442,997 421,889 6,000.00 0.24 1.69 1.61
295,873 295,873 18,000.00 250.00 1.23 1.23
322,530 310,645 3,244.00 0.14 1.37 1.32
382,066 356,104 11,645.00 0.15 1.51 1.41
613,248 528,248 18,817.00 0.20 1.62 1.40
553,440 553,440 68,744.00 624.95 2.20 2.20
404,257 347,518 6,850.00 0.15 1.51 1.30
303,743 268,712 6,397.00 0.20 1.40 1.24
272,315 260,219 3,563.00 0.15 1.38 1.32
230,113 230,113 28,847.00 335.43 1.29 1.29
335,602 335,602 38,400.00 200.00 1.58 1.58
326,734 308,455 8,160.00 0.30 1.48 1.40
332,692 332,692 54,458.00 439.18 1.60 1.60
248,275 248,275 11,644.00 284.00 1.33 1.33
280,677 239,021 9,430.00 0.23 1.51 1.28
273,128 254,003 15,300.00 0.20 1.47 1.37
295,242 295,242 6,833.00 52.16 1.62 1.62
202,911 202,911 15,000.00 250.00 1.16 1.16
207,018 199,552 2,240.00 0.15 1.35 1.30
252,429 212,962 6,480.00 0.20 1.53 1.29
185,758 185,758 15,000.00 250.00 1.33 1.33
179,498 172,540 1,050.00 0.15 1.31 1.26
234,067 218,554 4,290.00 0.20 1.47 1.37
208,908 192,867 1,975.00 0.15 1.54 1.42
191,761 180,244 1,688.00 0.15 1.43 1.34
187,200 176,746 3,256.00 0.23 1.35 1.27
188,653 160,643 4,560.00 0.17 1.44 1.22
192,407 164,495 7,487.00 0.15 1.49 1.27
170,407 170,407 1,519.00 0.15 1.20 1.20
176,118 176,118 4,830.00 11.96 1.36 1.36
301,125 280,991 1,456.00 0.20 2.06 1.92
184,561 176,637 2,534.00 0.15 1.35 1.29
176,801 171,551 1,575.00 0.15 1.48 1.44
193,441 193,441 12,000.00 250.00 1.48 1.48
193,530 179,837 2,698.00 0.15 1.46 1.36
160,236 150,879 9,000.00 0.27 1.32 1.24
208,583 194,573 3,666.00 0.25 1.80 1.68
141,411 128,865 1,575.00 0.15 1.39 1.27
165,748 165,748 11,500.00 250.00 1.58 1.58
138,323 138,323 3,194.00 0.15 1.27 1.27
138,277 124,125 1,665.00 0.15 1.48 1.33
132,338 123,555 1,647.00 0.15 1.38 1.28
117,056 117,056 6,600.00 275.00 1.27 1.27
133,388 133,388 5,350.00 61.49 1.45 1.45
230,315 230,315 32,400.00 531.15 2.26 2.26
148,901 148,901 22,083.00 525.79 1.55 1.55
112,864 110,306 750.00 0.15 1.28 1.25
90,230 90,230 5,100.00 300.00 1.35 1.35
94,802 94,802 12,500.00 250.00 1.33 1.33
86,383 83,568 1,312.00 0.15 1.38 1.33
92,550 80,094 5,066.00 0.15 1.70 1.48
68,800 68,800 4,950.00 50.00 1.37 1.37
85,753 85,753 8,000.00 250.00 1.72 1.72
130,495 117,461 3,572.00 0.20 2.21 1.99
37,685 37,685 3,000.00 250.00 1.29 1.29
38,406 38,406 3,500.00 250.00 1.44 1.44
49,872 44,136 1,447.00 0.15 1.70 1.50
1,529,563 1,417,803 31,750.00 0.10 1.41 1.31
1,205,556 1,094,767 110,789.00 279.03 1.61 1.46
93,050 76,571 16,479.00 411.98 1.61 1.32
219,854 192,713 27,141.00 311.97 1.52 1.33
246,622 230,872 15,750.00 250.00 1.70 1.60
194,235 176,066 18,169.00 275.29 1.56 1.42
192,874 175,374 17,500.00 250.00 1.54 1.40
258,921 243,171 15,750.00 250.00 1.70 1.60
978,287 879,237 99,050.00 261.71 1.59 1.43
137,353 118,753 18,600.00 295.24 1.67 1.45
134,095 119,520 14,575.00 275.00 1.58 1.41
144,643 128,643 16,000.00 246.15 1.63 1.45
261,899 238,149 23,750.00 244.85 1.55 1.41
300,297 274,172 26,125.00 263.89 1.58 1.45
800,281 729,078 25,268.00 0.10 1.36 1.24
890,620 776,495 114,125.00 275.00 1.61 1.40
330,490 289,790 40,700.00 275.00 1.68 1.48
264,552 235,402 29,150.00 275.00 1.66 1.48
295,578 251,303 44,275.00 275.00 1.49 1.27
613,773 584,404 29,369.00 0.23 1.42 1.35
615,266 579,222 5,181.00 0.10 1.49 1.40
562,027 541,903 20,124.00 258.00 1.57 1.51
438,013 418,263 19,750.00 250.00 1.52 1.46
333,111 318,361 14,750.00 50.00 1.32 1.27
402,933 384,828 3,422.00 0.09 1.27 1.22
227,766 211,036 0.00 0.00 1.27 1.22
175,167 173,792 0.00 0.00 1.27 1.22
335,196 303,446 31,750.00 250.00 1.58 1.43
389,639 345,404 7,563.00 0.20 1.80 1.59
227,914 209,293 18,621.00 295.57 1.41 1.30
291,231 280,693 10,538.00 0.15 1.63 1.57
230,347 208,347 22,000.00 275.00 1.56 1.41
209,140 189,890 19,250.00 250.00 1.59 1.44
188,851 181,935 6,916.00 54.46 1.39 1.34
187,775 176,669 2,257.00 0.10 1.64 1.54
210,217 179,065 12,480.00 0.31 1.89 1.61
177,377 153,452 23,925.00 275.00 1.71 1.48
146,374 130,149 16,225.00 265.98 1.59 1.41
116,073 110,443 1,000.00 0.10 1.35 1.28
115,706 110,113 980.00 0.10 1.35 1.28
119,149 105,949 13,200.00 300.00 1.54 1.37
113,345 94,087 4,881.00 0.15 1.62 1.35
115,605 91,559 6,183.00 0.19 1.70 1.35
94,313 84,765 2,665.00 0.12 1.46 1.31
62,309 60,859 1,450.00 50.00 1.82 1.77
2,083,701 1,970,030 26,227.00 0.10 1.33 1.26
1,490,381 1,356,970 48,070.00 0.20 1.53 1.39
1,145,111 1,039,848 41,817.00 0.20 1.48 1.34
345,270 317,122 6,253.00 0.20 1.72 1.58
1,712,575 1,546,406 60,954.00 0.15 1.50 1.35
1,120,185 1,077,785 42,400.00 200.00 1.38 1.33
1,477,054 1,268,796 37,327.00 0.25 1.52 1.31
1,177,950 968,160 33,517.00 0.25 1.57 1.29
943,107 788,942 21,540.00 0.25 1.64 1.37
705,563 649,995 100.30 1.47 1.35
131,372 113,598 17,774.00 148.12 1.47 1.35
355,801 330,507 25,294.00 87.83 1.47 1.35
218,390 205,890 12,500.00 85.62 1.47 1.35
602,061 565,811 36,250.00 250.00 1.49 1.40
717,751 576,153 22,499.00 0.25 1.59 1.27
554,474 517,574 36,900.00 225.00 1.64 1.53
575,676 514,476 61,200.00 225.00 1.55 1.39
530,501 516,754 13,747.00 0.10 1.28 1.25
565,049 488,982 19,898.00 0.24 1.53 1.33
783,837 607,692 63,261.00 0.25 1.99 1.54
503,402 473,402 30,000.00 250.00 1.42 1.33
513,119 451,619 61,500.00 250.00 1.60 1.40
212,538 182,538 30,000.00 250.00 1.66 1.43
161,876 145,376 16,500.00 250.00 1.53 1.37
138,705 123,705 15,000.00 250.00 1.58 1.40
473,354 402,194 71,160.00 250.56 1.47 1.25
273,870 231,710 42,160.00 250.95 1.44 1.22
199,484 170,484 29,000.00 250.00 1.51 1.29
369,537 365,883 3,654.00 0.12 1.31 1.30
433,609 420,046 7,833.00 0.15 1.52 1.47
579,323 550,691 0.25 1.70 1.61
71,359 67,977 443.00 0.15 1.70 1.61
68,959 65,021 1,172.00 0.52 1.70 1.61
62,195 58,457 970.00 0.43 1.70 1.61
170,452 162,293 958.00 0.15 1.70 1.61
116,896 111,605 806.00 0.37 1.70 1.61
89,462 85,338 500.00 0.16 1.70 1.61
509,650 450,495 394.37 1.56 1.38
339,830 304,630 35,200.00 424.10 1.56 1.38
169,820 145,865 23,955.00 357.54 1.56 1.38
352,441 350,355 2,086.00 0.15 1.34 1.33
408,946 368,746 40,200.00 300.00 1.50 1.35
420,732 376,182 44,550.00 675.00 1.70 1.52
412,523 380,387 32,136.00 309.00 1.38 1.27
326,981 314,193 12,788.00 278.00 1.35 1.30
310,808 307,214 3,594.00 0.12 1.31 1.29
416,802 360,647 6,339.00 0.15 1.56 1.35
358,372 303,729 11,880.00 0.11 1.53 1.30
362,945 314,945 48,000.00 300.00 1.50 1.31
326,193 272,413 12,915.00 0.23 1.55 1.29
292,652 287,437 5,215.00 0.10 1.39 1.37
288,803 243,844 14,440.00 0.18 1.55 1.30
348,477 331,656 0.23 1.68 1.60
112,891 107,833 655.00 0.25 1.68 1.60
65,103 61,473 990.00 0.42 1.68 1.60
170,483 162,350 945.00 0.15 1.68 1.60
264,897 224,369 8,979.00 0.25 1.50 1.27
238,584 216,770 4,162.00 0.15 1.43 1.30
221,682 207,382 14,300.00 275.00 1.48 1.38
223,175 211,063 2,475.00 0.15 1.37 1.30
245,096 184,453 9,413.00 0.26 1.73 1.30
206,427 183,757 22,670.00 314.86 1.68 1.49
204,716 193,466 11,250.00 250.00 1.38 1.30
182,697 154,697 28,000.00 250.00 1.58 1.33
154,114 148,014 6,100.00 50.00 1.42 1.37
170,089 145,454 5,318.00 0.26 1.44 1.23
144,415 132,865 11,550.00 275.00 1.47 1.36
180,370 140,388 9,084.00 0.24 1.61 1.25
124,275 116,775 7,500.00 250.00 1.45 1.37
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
CUT-OFF MONTHLY MONTHLY MONTHLY MONTHLY
ORIGINAL LOAN DATE LOAN PAID TO REPLACEMENT TAX INSURANCE TI/LC
PER UNIT/SF PER UNIT/SF DATE RESERVES ESCROW ESCROW PAYMENT
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
152.30 152.00 07/01/99 961 15,446 2,307 -
152.31 152.01 07/01/99 390 6,268 936 -
152.30 152.00 07/01/99 571 9,178 1,371 -
28,541.67 27,524.70 07/01/99 - 2,400 - -
53.33 53.08 07/01/99 - - - -
81.34 81.25 07/01/99 1,085 11,619 555 6,000
15,291.26 15,268.71 07/01/99 - 3,101 540 -
13.85 13.75 07/01/99 4,820 - - -
35,328.95 35,291.89 07/01/99 317 3,963 449 -
26,546.39 26,492.48 07/01/99 2,021 4,168 809 -
18,825.76 18,743.02 07/01/99 3,289 7,466 3,852 -
22,963.41 22,862.49 07/01/99
12,040.00 11,987.08 07/01/99
76.42 72.42 07/01/99 - 3,667 665 -
16,666.67 16,644.24 07/01/99 - 1,187 264 -
125.14 123.69 07/01/99 - 2,022 323 -
23,636.36 23,588.36 07/01/99 1,375 2,646 552 -
10,882.35 10,851.16 07/01/99 - 2,734 378 -
44.90 44.72 07/01/99 287 1,835 911 1,526
16.11 15.98 07/01/99 750 2,216 206 1,289
57.36 56.82 07/01/99 1,008 2,960 841 -
25.44 25.42 07/01/99 1,115 2,391 405 -
25,000.00 24,905.91 07/01/99 - 1,186 64 -
22,956.52 22,909.90 07/01/99 958 1,957 379 -
14,788.73 14,766.21 07/01/99 - 1,505 415 -
$29,961.17 $29,892.00 07/01/99 186,030 149,610 31,900 -
53,219.26 53,096.39 07/01/99
27,628.72 27,564.93 07/01/99
45,965.08 45,858.95 07/01/99
19,077.41 19,033.36 07/01/99
41,384.85 41,289.30 07/01/99
43,991.46 43,889.90 07/01/99
22,646.49 22,594.21 07/01/99
38,960.10 38,870.16 07/01/99
25,600.38 25,541.28 07/01/99
6,699.02 6,683.56 07/01/99
9,258.00 9,236.63 07/01/99
7,360.11 7,343.12 07/01/99
39,416.13 39,325.13 07/01/99
24,723.46 24,666.38 07/01/99
16,015.60 15,978.62 07/01/99
146.70 146.40 07/01/99 2,215 29,132 11,399 7,754
137.12 136.86 07/01/99 - - - -
45,508.00 45,412.74 07/01/99 7,146 12,132 1,351 -
234.61 232.46 07/01/99 - - - -
103.73 102.90 07/01/99 - 28,187 - -
45,871.56 45,300.07 07/01/99 3,533 2,425 2,359 -
141.04 140.05 07/01/99 1,972 15,093 2,962 -
71.84 71.25 07/01/99 1,611 18,687 2,275 -
20,251.72 19,989.76 07/01/99 9,105 9,032 - -
104.51 104.31 07/01/99 1,017 14,993 681 6,778
89.27 88.47 07/01/99 1,385 6,290 782 -
133.87 132.78 07/01/99 - 7,186 427 3,572
32.51 31.85 07/01/99 - 18,439 1,332 -
127.90 127.15 07/01/99 386 6,712 588 3,846
62.39 61.97 07/01/99 781 18,829 1,852 14,221
41,302.82 40,818.54 07/01/99 9,870 6,258 2,917 -
44,615.38 44,264.05 07/01/99 9,357 7,418 1,700 -
48,983.05 48,591.68 07/01/99 2,757 9,057 1,542 -
39,720.28 39,541.42 07/01/99 5,184 12,068 1,641 -
41,044.78 40,231.90 07/01/99 10,350 4,845 1,711 -
135.14 134.39 07/01/99 652 2,356 1,059 2,810
45,000.00 44,585.72 07/01/99 2,100 2,908 2,749 -
171.64 170.11 07/01/99 510 3,977 2,680 1,081
145.77 144.01 07/01/99 1,174 - - -
52.23 51.56 07/01/99 9,043 5,406 553 -
33,986.49 33,622.88 07/01/99 - 9,974 4,723 -
88.60 87.37 07/01/99 - 6,550 - 2,083
8,676.73 8,608.46 07/01/99 1,553 4,727 953 -
11,360.47 11,271.08 07/01/99
2,998.58 2,974.99 07/01/99
11,634.34 11,542.80 07/01/99
32,567.57 32,311.94 07/01/99 3,157 4,014 - -
147.24 145.65 07/01/99 - - - 1,358
15,309.45 15,161.18 07/01/99 - 8,293 2,565 -
33,260.87 32,999.80 07/01/99 2,875 3,901 - -
89.73 88.09 07/01/99 861 7,895 895 -
44,791.67 44,111.36 07/01/99 - 6,366 1,354 -
130.34 126.48 07/01/99 - - - -
370.96 370.25 07/01/99 - 7,652 625 1,635
90.78 89.96 07/01/99 578 7,599 771 -
32,677.17 32,486.51 07/01/99 - 4,870 919 -
185.31 183.22 07/01/99 280 - 568 1,870
26.28 26.23 07/01/99 - - - 578
20.63 20.47 07/01/99 1,622 4,833 433 2,625
78,431.37 77,475.47 07/01/99 2,857 5,898 586 -
18.59 18.49 07/01/99 1,780 4,919 753 6,250
6,581.20 6,507.88 07/01/99 695 1,962 689 -
32,083.33 31,704.39 07/01/99 2,500 7,715 2,982 -
25,000.00 24,699.05 07/01/99 - 4,425 - -
315.00 310.42 07/01/99 260 8,921 1,250 -
33,214.29 32,947.02 07/01/99 2,333 9,648 - -
61,666.67 61,264.27 07/01/99 1,250 2,800 971 -
36,000.00 35,481.40 07/01/99 2,083 1,659 1,659 -
20,254.24 19,948.18 07/01/99 3,688 22,506 778 -
86.98 85.91 07/01/99 2,431 2,167 420 -
34.11 33.92 07/01/99 1,500 5,368 617 5,200
7,298.14 7,203.74 07/01/99 12,075 14,323 - -
55.77 55.39 07/01/99 1,084 4,856 353 4,167
70.98 70.44 07/01/99 - 6,468 352 -
117.23 116.08 07/01/99 373 4,725 469 -
41,250.00 40,658.39 07/01/99 - 3,834 621 -
62.54 62.03 07/01/99 - 4,936 1,855 1,245
119.39 118.38 07/01/99 583 3,560 491 2,165
48.69 48.35 07/01/99 1,048 5,063 1,136 4,925
37.75 36.75 07/01/99 - 2,944 730 -
120.00 118.53 07/01/99 389 12,728 835 1,417
38,888.89 38,491.75 07/01/99 1,200 3,192 476 -
119.33 119.11 07/01/99 270 5,093 314 967
34.78 34.54 07/01/99 971 4,156 1,227 2,165
30.82 28.48 07/01/99 1,568 5,241 1,028 -
24,090.91 23,948.48 07/01/99 4,583 2,115 789 -
56.32 55.06 07/01/99 385 3,690 1,600 4,250
77.38 76.43 07/01/99 533 2,773 464 2,093
97.46 96.54 07/01/99 295 3,580 846 -
26,162.79 25,935.89 07/01/99 2,400 2,887 440 -
11,458.33 11,251.77 07/01/99 3,200 3,395 1,768 -
70.04 79.46 07/01/99 340 11,748 930 -
17,419.35 17,372.32 07/01/99 4,538 5,053 1,468 -
52,682.93 52,443.49 07/01/99 - 3,625 409 -
51.22 50.82 07/01/99 786 2,836 747 1,042
27.45 27.09 07/01/99 1,658 3,708 367 -
15,267.18 15,207.12 07/01/99 569 1,887 462 -
32,916.67 32,212.69 07/01/99 - 669 635 -
120.55 120.25 07/01/99 187 2,788 387 585
55.56 55.26 07/01/99 540 6,284 519 3,209
28,333.33 28,031.66 07/01/99 1,250 3,218 1,494 -
239.29 237.86 07/01/99 - - - -
76.92 75.47 07/01/99 304 1,336 253 1,257
121.58 120.27 07/01/99 548 - - -
137.78 136.50 07/01/99 141 2,468 344 960
105.96 105.56 07/01/99 271 4,160 286 871
55.13 54.58 07/01/99 380 1,386 236 2,335
30.05 29.70 07/01/99 417 3,852 1,022 -
148.15 146.24 07/01/99 - - - -
3,675.74 3,659.90 07/01/99 118 3,047 324 -
206.04 202.21 07/01/99 118 5,257 2,500 -
82.88 82.49 07/01/99 - 2,054 668 -
134.10 132.65 07/01/99 131 - - 438
29,166.67 28,965.25 07/01/99 1,000 1,380 672 -
78.30 76.83 07/01/99 - 2,564 384 -
40.59 40.07 07/01/99 750 1,476 355 945
88.35 87.30 07/01/99 313 6,720 1,503 -
114.29 113.05 07/01/99 - - - 415
25,217.39 25,002.50 07/01/99 - 1,161 485 -
54.01 53.07 07/01/99 - 1,437 253 -
99.10 98.03 07/01/99 139 - - 463
99.11 98.93 07/01/99 138 260 170 732
44,166.67 43,655.57 07/01/99 550 541 237 -
11,494.25 11,376.55 07/01/99 - 545 189 -
16,393.44 16,153.55 07/01/99 - 1,437 542 -
20,833.33 20,652.68 07/01/99 - 1,019 268 -
172.40 171.58 07/01/99 - 2,534 232 -
37,411.76 36,987.23 07/01/99 - 1,071 388 -
13,000.00 12,432.03 07/01/99 - 1,464 2,183 -
70.32 69.29 07/01/99 - 947 286 -
17.77 17.60 07/01/99 422 1,808 128 -
5,303.03 5,284.20 07/01/99 - 466 3,700 -
15,625.00 15,387.07 07/01/99 - 2,749 580 -
28.00 27.44 07/01/99 - 2,180 250 -
26,000.00 25,769.80 07/01/99 - 743 348 -
21,714.29 21,496.01 07/01/99 - 824 587 -
31.10 30.61 07/01/99 - 1,056 102 410
38.90 38.87 07/01/99 2,395 - - 2,083
22,541.61 22,493.62 07/01/99 - 11,970 - -
16,500.00 16,464.87 07/01/99 - 1,021 - -
18,965.52 18,925.14 07/01/99 - 2,716 - -
26,190.48 26,134.72 07/01/99 - 2,352 - -
21,477.27 21,431.55 07/01/99 - 2,389 - -
20,464.29 20,420.72 07/01/99 - 1,171 - -
27,559.52 27,500.85 07/01/99 - 2,321 - -
18,611.63 18,488.30 07/01/99 - 13,256 - -
14,555.56 14,459.10 07/01/99 - 2,463 - -
17,867.92 17,749.52 07/01/99 - 1,545 - -
15,276.92 15,175.69 07/01/99 - 1,551 - -
19,453.61 19,324.70 07/01/99 - 2,850 - -
21,393.94 21,252.17 07/01/99 - 4,847 - -
26.42 26.37 07/01/99 521 6,559 2,028 -
15,022.42 14,922.87 07/01/99 - 10,088 - -
14,817.57 14,719.38 07/01/99 - 2,808 - -
16,811.32 16,699.92 07/01/99 - 3,350 - -
13,788.82 13,697.45 07/01/99 - 3,930 - -
39.16 38.99 07/01/99 2,403 - - -
94.39 93.69 07/01/99 233 3,795 375 -
46,153.85 45,730.40 07/01/99 1,656 6,661 1,336 -
42,405.06 42,101.49 07/01/99 322 2,471 2,527 -
9,491.53 9,480.96 07/01/99 631 728 458 -
64.23 62.83 07/01/99 400 2,792 250 -
51.49 50.37 07/01/99
93.45 91.41 07/01/99
19,045.28 19,004.73 07/01/99 - 4,400 - -
57.89 57.75 07/01/99 630 2,623 552 -
31,746.03 31,462.30 07/01/99 1,537 3,717 351 -
27.05 26.97 07/01/99 182 4,059 475 -
20,612.50 20,475.91 07/01/99 - 2,561 - -
19,480.52 19,439.05 07/01/99 - 1,189 - -
11,811.02 11,745.44 07/01/99 576 1,062 142 -
55.33 55.01 07/01/99 62 1,324 188 800
31.67 31.48 07/01/99 1,034 3,038 158 -
13,356.32 13,267.82 07/01/99 - 2,646 - -
16,901.64 16,789.64 07/01/99 - 2,039 - -
95.20 94.58 07/01/99 67 - - -
94.80 94.19 07/01/99 61 - - -
19,681.82 19,551.39 07/01/99 - 1,108 - -
23.05 23.01 07/01/99 - 1,696 188 -
22.57 22.42 07/01/99 515 479 433 -
30.40 30.34 07/01/99 - 1,010 83 -
12,068.97 12,055.84 07/01/99 - 1,483 148 -
66.92 66.87 07/01/99 - 734 1,357 -
51.03 50.83 07/01/99 - 11,174 1,990 -
44.37 44.20 07/01/99 - 9,721 1,728 -
76.77 76.47 07/01/99 - 1,453 262 -
28.30 28.25 07/01/99 - 25,691 2,853 -
50,471.70 50,097.54 07/01/99 - 12,442 1,428 -
70.20 69.97 07/01/99 - 27,652 987 -
63.12 63.08 07/01/99 - 26,190 1,591 128,048
67.67 67.58 07/01/99 - 8,270 831 -
10,406.14 10,390.49 07/01/99 2,146 5,583 1,026 -
9,358.77 9,344.69 07/01/99
9,618.73 9,604.27 07/01/99
12,820.23 12,800.95 07/01/99
33,620.69 33,543.08 07/01/99 - 7,916 1,288 -
53.62 53.40 07/01/99 - 9,575 620 -
27,195.12 26,968.14 07/01/99 - 11,168 946 -
16,176.47 16,140.52 07/01/99 - 11,749 2,412 -
32.03 31.55 07/01/99 - - - -
51.40 50.69 07/01/99 - 4,611 479 -
16.60 16.53 07/01/99 - 16,395 725 3,333
34,166.67 34,085.22 07/01/99 - 12,145 1,095 -
15,036.59 14,964.93 07/01/99 5,125 3,027 1,902 -
12,291.67 12,232.62 07/01/99 2,500 1,220 881 -
18,545.45 18,456.36 07/01/99 1,375 843 557 -
16,666.67 16,588.98 07/01/99 1,250 964 464 -
12,024.65 12,012.51 07/01/99 - 3,731 1,406 -
11,994.05 11,981.94 07/01/99 - 2,733 822 -
12,068.97 12,056.78 07/01/99 - 998 584 -
110.34 110.10 07/01/99 - - 1,468 -
63.50 63.37 07/01/99 - 2,981 - -
170.42 170.42 07/01/99 - 3,725 - -
157.64 157.64 07/01/99
167.50 167.50 07/01/99
168.52 168.52 07/01/99
153.76 153.76 07/01/99
278.18 278.18 07/01/99
146.00 146.00 07/01/99
20,533.33 20,372.74 07/01/99 - 3,449 2,836 -
17,641.71 17,503.74 07/01/99
24,115.49 23,926.88 07/01/99
219.35 219.19 07/01/99 - - 444 -
22,649.25 22,573.53 07/01/99 - 1,933 1,824 -
45,454.55 45,386.38 07/01/99 1,375 6,254 804 -
28,846.15 28,646.58 07/01/99 - 5,127 1,924 -
61,978.26 61,856.46 07/01/99 - 2,938 332 -
94.32 94.11 07/01/99 - - 1,503 -
66.26 66.06 07/01/99 - 2,789 - -
23.67 23.55 07/01/99 - 5,019 2,789 -
15,087.50 15,061.69 07/01/99 3,334 2,278 1,223 -
39.09 38.93 07/01/99 - 3,879 - 3,400
40.27 40.06 07/01/99 - 1,659 1,191 -
25.01 24.98 07/01/99 - 3,072 769 -
176.13 176.13 07/01/99 - 4,995 - -
258.61 258.61 07/01/99
173.68 173.68 07/01/99
142.09 142.09 07/01/99
54.99 54.96 07/01/99 - 1,590 1,212 -
63.54 63.47 07/01/99 - 1,641 424 -
32,692.31 32,626.33 07/01/99 - 1,445 455 -
101.09 100.55 07/01/99 - 646 709 -
42.89 42.80 07/01/99 - 6,177 596 -
20,277.78 20,217.50 07/01/99 - 2,602 953 -
31,844.44 31,690.04 07/01/99 - 2,949 700 1,350
11,607.14 11,580.85 07/01/99 - 1,498 1,165 -
9,680.33 9,659.47 07/01/99 - 1,831 100 -
58.52 58.01 07/01/99 - 5,120 557 -
27,333.33 27,256.21 07/01/99 - 3,547 335 -
30.12 30.06 07/01/99 - 1,884 143 2,500
33,333.33 33,268.60 07/01/99 650 1,646 198 -
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
MONTHLY
MONTHLY ECONOMIC CURRENT CURRENT CURRENT
P&I RESERVE CURRENT REPAIR & REPLACEMENT CURRENT TAX INSURANCE TI/LC
RESERVE (& OTHER) REMEDIATION RESERVE RESERVE RESERVE RESERVE
PAYMENT PAYMENT RESERVE BALANCE BALANCE BALANCE BALANCE BALANCE
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- - 1,250 961 108,121 16,145 -
- - 507 779 50,144 7,487 -
- - 743 1,141 73,423 10,965 -
- - - - 9,176 - -
- - - - - - -
- - - 2,170 46,475 1,666 12,000
- - 7,879 - 27,909 3,238 -
- - 395,600 - - - -
- - 72,000 85,634 15,852 4,488 -
- - - 6,063 25,028 5,661 -
- - 88,840 13,175 67,197 27,662 -
- - 7,700 6,439 32,075 5,115 -
- - - - 11,865 3,701 -
- - - 4,963 36,004 3,806 -
- - - 4,125 15,878 3,862 -
- - - - 19,139 1,891 -
- - - - 14,676 5,466 22,772
386 - - - 4,868 699 6,445
- - 4,025 4,032 18,249 4,767 -
- - - 1,115 2,391 405 -
- - - - 4,742 256 100,000
- - - 2,874 11,744 2,656 -
- - 940 - 13,546 2,489 -
- 118,750 1,011,764 79,263 1,109,780 186,785 -
- - - 6,660 45,022 56,995 23,314
- - - - - - -
- - - 55,982 36,396 6,755 -
- - - - - - -
- - - - 82,296 - 5
- - - 4,467 47,508 26,895 -
- - - 13,902 117,074 53,321 -
- - - 16,258 50,113 15,034 -
- - - 39,576 25,031 - -
- - - 3,053 44,979 8,172 20,355
- - - 15,235 25,190 2,913 -
- - 2,875 - 79,047 3,414 21,430
- - - - 78,454 17,296 154,579
- - 90,706 1,549 73,836 8,819 15,430
- - 2,915 4,723 175,530 16,672 61,345
- - - 80,486 12,757 26,579 -
- - - 8,879 (23,442) 22,103 -
- - 49,466 30,922 12,475 7,589 -
- 10,594 - 36,429 96,543 26,255 -
- - 138 115,297 14,767 12,551 -
- - 19,308 10,515 13,164 6,815 11,276
- - - 2,600 23,195 32,983 -
- - - 5,098 10,541 2,083 10,812
- - 36,781 11,874 - - 205,234
- - - 29,860 12,775 - 38,738
- - - - 10,262 3,865 -
- - - - 31,686 - 38,092
- - 6,676 33,255 - 5,849 -
- - - 32,536 8,140 - -
- - - - - - 10,981
- - 45,648 - 51,218 36,727 -
- - - 18,934 7,887 - -
- - - 7,749 13,483 9,842 -
- - - 20,266 16,353 11,779 -
- - - - - - -
- - - - 38,260 1,875 6,560
- - 4,215 3,470 22,798 7,724 -
- - - - 9,335 9,193 -
- - - 2,240 - 4,355 15,125
- - - - - - 1,157
- - 43,750 8,109 38,667 6,067 13,125
25,000 - 26,722 19,999 57,847 6,447 -
- - 47,738 5,342 29,514 3,010 87,579
- - - 7,351 3,096 6,690 -
- - - 22,500 19,538 28,558 -
- - - - 13,230 - -
- - - 3,120 64,483 18,750 -
- - - 11,667 28,943 3,538 -
- - - 11,250 10,870 4,544 -
- - - 15,780 5,647 14,927 -
- - - 44,635 221,297 11,674 -
- - 12,020 21,879 19,500 3,235 514,945
- - 12,632 6,016 22,125 4,317 143,136
- - 1,800 25,353 28,846 - -
- - - 5,441 24,661 2,230 20,916
- - 31,148 - 43,111 1,925 -
- - - 3,732 14,644 6,095 -
- - - - 18,581 3,805 -
- - 12,722 - 39,509 19,153 13,874
- - - 5,833 10,194 2,452 21,647
- 1,743 - 7,118 29,534 10,222 18,106
- - - - 13,483 11,013 -
2,500 - 53,381 3,501 76,377 6,126 12,753
- - - 8,449 24,573 5,239 -
- - 752 812 20,372 3,764 2,903
- - 3,189 1,373 39,875 4,909 15,234
- - - 25,311 49,662 303 -
- - 20,921 27,606 21,154 11,041 -
- - - 395 31,773 12,798 44,526
- - - 5,864 27,628 6,034 23,023
- - 1,875 1,770 15,044 11,993 -
- - 54,694 21,851 6,398 4,814 -
- - - 25,600 785 11,589 -
- - - 7,471 30,457 5,742 -
- - 450 13,615 35,371 11,743 -
- - 7,762 - 13,641 1,228 -
- - 49,999 3,929 15,040 5,231 5,210
- - - 18,233 15,490 4,394 -
- - - 1,142 5,743 6,376 -
- - - - 1,473 6,015 -
- - 3,762 748 22,304 3,092 1,760
- - 3,206 2,160 18,851 5,191 12,836
- - - 4,109 (264) 1,469 -
- - - - - - -
- - - 2,757 14,691 435 11,399
- - - - - - 4,431
- - 938 985 21,991 3,096 21,718
- - 21,574 1,362 29,119 1,719 4,371
- - - 2,460 2,803 1,870 44,365
- - - 4,215 23,112 8,178 -
- - - - - - -
- - 4,025 474 22,301 1,621 -
- - 757 1,180 31,541 28,674 -
- - - - 9,920 3,187 -
- - - 925 - - 3,541
- - 11,434 11,707 6,788 13,778 -
- - - 350,000 19,624 1,939 6,480
- - - 7,500 14,522 3,513 9,453
- - - 2,813 46,472 12,288 -
- - 2,940 - - - 3,356
- - 122 - 8,542 - -
- - - - 5,567 2,778 -
- - - 981 - - 3,744
- - - 276 1,298 1,696 1,465
- - - 4,400 2,100 2,843 -
- - - - 1,750 1,887 -
- - - - 7,255 2,154 -
- - - 4,140 6,364 4,559 -
- - - - 17,738 1,853 -
- - - - 1,499 1,344 -
- - - - 11,709 1,928 -
- - - - 6,629 3,332 -
- - - 3,405 18,172 1,534 -
- - - - 3,730 3,700 -
- - 4,249 - 9,244 1,739 -
- - - - 15,474 925 -
- - - - 6,683 3,832 -
- - - - 5,770 5,152 -
- - - - 935 1,019 3,308
- - 20,570 9,582 - - 12,500
- - 155,450 - 83,795 - -
- - - - 8,170 - -
- - 41,125 - 21,277 - -
- - 24,750 - 18,818 - -
- - 68,325 - 19,115 - -
- - 500 - 9,366 - -
- - 21,250 - 18,570 - -
- - 29,313 - 40,787 - -
- - 16,375 - 8,008 - -
- - - - 4,707 - -
- - - - 4,907 - -
- - - - 8,319 - -
- - 12,938 - 14,846 - -
- - - 1,042 35,535 10,977 -
- - 213,013 - 80,698 - -
- - 61,700 - 22,460 - -
- - 438 - 26,802 - -
- - 150,875 - 31,436 - -
- - 20,356 9,669 - - -
- - - 1,400 407 40 -
- - - 8,307 18,366 3,682 -
- - - 3,559 15,079 15,445 -
- - 19,375 631 5,663 3,560 -
- - 1,255 2,102 13,002 1,161 -
- - 25,626 - 26,398 - -
- - 10,573 1,892 13,570 2,859 -
- - - 18,665 3,718 350 -
- - - 546 17,131 2,010 -
- - - - 6,437 - -
- - 34,313 - 9,512 - -
- - - 2,889 8,313 1,112 -
- - - 309 4,461 637 4,011
- - 3,771 5,187 9,209 474 -
- - 25,175 - 21,166 - -
- - - - 6,328 - -
- - - 473 - - -
- - - 426 - - -
- - - - 8,868 - -
- - 40,404 - 11,190 1,243 -
- - 19,575 3,102 3,124 2,827 -
- - - - 2,586 213 -
- - 781 - 14,630 1,333 -
- - - - 7,341 6,784 -
- - - - 122,913 27,856 -
- - - - 106,935 24,190 -
- - - - 15,978 3,666 -
- 461 - - 25,691 8,560 2,900,000
- - - - 29,233 10,588 -
- 4,000 - - 55,304 1,974 -
- - - - 61,809 3,754 -
- - - - 49,620 4,989 -
- - - 4,306 37,030 3,077 -
- - 18,288 - 31,563 6,442 -
- - - - 76,603 4,961 262,751
- - - - 57,818 33 -
- - - - 70,492 19,293 -
- - - - - - -
- - 40,842 - 27,663 5,366 -
- - - - 114,762 5,076 238,521
- - - - 24,289 2,190 -
- - 95,982 15,462 24,218 4,783 -
- - 22,188 7,558 9,760 (201) -
- - 73,794 4,125 6,745 804 -
- - - 3,779 7,713 4,180 -
- - 97,125 - - 9,950 -
- - 54,000 - - 4,108 -
- - 43,125 - - 5,842 -
- - - - - 5,873 -
- - - - 5,961 - -
- - - - 18,976 9,221 660,159
- - 45,242 - 23,992 28,359 -
- - - - - 3,997 -
- - - - 14,229 12,802 -
- - - 2,755 43,775 3,214 -
- - 16,637 - 35,889 17,313 -
- - 21,990 - 2,938 667 -
- - - - - 6,010 -
- - - - 5,578 - 260,000
- - 160,942 - 20,076 25,098 -
- - 105,586 3,334 9,114 6,115 -
- - 50,639 - 15,514 - 10,278
- - - - 6,637 4,765 -
- - - - 3,072 4,614 125,370
- - - - 40,255 - -
- - - - 7,950 10,907 50,000
- - - - 6,562 848 -
- - - - 4,335 2,732 -
- - - - 646 5,443 -
- - - - 12,353 1,787 -
- - - - 18,217 8,579 -
- - - - 24,842 2,799 4,050
- - 26,400 - 10,487 6,990 -
- - - - 8,515 500 -
- - - - 25,601 3,427 -
- - 26,666 - 21,284 1,673 -
- - - - 3,767 1,434 2,500
- - 6,488 1,302 3,293 2,534 -
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------
CURRENT
CURRENT CURRENT ECONOMIC
P&I ENVIRONMENTAL RESERVE FINANCIAL FINANCIAL
RESERVE RESERVE (& OTHER) STATEMENT STATEMENT CONTROL
BALANCE BALANCE BALANCE PAYMENT BALANCE NUMBER
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- - - - - 6
- - - - - 6.10
- - - - - 6.20
- - - - - 25
- - - - - 26
- - - - - 36
- - - - - 105
- - - - - 118
- - - - - 121
- - - - - 125
- - - - - 128
128.10
128.20
- - - - - 142
- - - - - 146
- - - - - 153
- - - - - 164
- - - - - 174
- - - - - 177
1,930 - - - - 178
- - - - - 183
- - - - - 185
- - - - - 188
- - - - - 203
- - - - - 204
- 9,924 2,649,500 - - 1
1.10
1.20
1.30
1.40
1.50
1.60
1.70
1.80
1.90
1.91
1.92
1.93
1.94
1.95
1.96
- - 396,943 - - 2
- - - - - 3
- - - - - 9
- - - - - 10
- - 129 - - 13
- - 15,000 - - 14
- - 1,114,480 - - 15
- - - - - 16
- - 14,199 - - 17
- - - - - 19
- - - - - 21
- - - - - 23
- - - - - 27
- - 77,270 - - 29
- - 22,266 - - 30
- - - - - 31
- - - - - 34
- - - - - 35
- - 180,132 - - 37
- - - - - 38
- - 70,463 - - 39
- - - - - 40
- - 6 - - 41
- - - - - 42
- - - - - 43
- - - - - 45
- - - - - 46
- - - - - 49
49.10
49.20
49.30
- - - - - 51
- - - - - 52
- - - - - 53
- - - - - 54
- - - - - 56
- - - - - 60
- - - - - 61
- - - - - 62
- 1,875 - - - 64
- - - - - 65
- - 18,494 - - 66
- - - - - 68
- - 1,300 - - 69
176,183 - - - - 70
300,316 - - - - 71
- - - - - 72
- - - - - 73
- - - - - 74
- - - - - 75
- - - - - 76
- - - - - 78
- - - - - 80
- - - - - 81
- - - - - 82
- - - - - 83
- - 16,388 - - 84
- - - - - 85
- - - - - 86
- - - - - 87
- - - - - 102
- - - - - 103
- - 90,157 - - 104
- - 2,490 - - 108
- - - - - 110
22,551 - - - - 113
- - - - - 119
- - - - - 120
- - 7,654 - - 122
- - - - - 123
- - - - - 124
- - - - - 126
- - - - - 130
- - - - - 133
- - - - - 134
- - - - - 137
- - - - - 138
- - - - - 139
- - - - - 140
- - - - - 143
- - - - - 144
- - - - - 148
- 1,067 - - - 151
- - 138,440 - - 154
- - - - - 155
- - - - - 158
- - - - - 159
- - - - - 162
- - - - - 163
- - - - - 166
- - 5,000 - - 168
- - - - - 170
- - - - - 171
- - - - - 172
- - - - - 173
- - 2,000 - - 175
- - - - - 180
- - - - - 181
- - - - - 182
- - - - - 184
- - - - - 186
- - - - - 189
- - - - - 192
- - - - - 196
- - - - - 198
- - - - - 200
- - - - - 201
- - - - - 205
- - - - - 209
- - - - - 210
- - - - - 213
- - 5,000 - - 215
- - - - - 222
- 1,068 - - - 223
- - - - - 224
- - - - - 226
27,822 - - - - 227
- - - - - 228
- - - - - 229
- - - - - 232
- - - - - 233
- - - - - 234
- - - - - 5
- - - - - 18
- - - - - 18.10
- - - - - 18.20
- - - - - 18.30
- - - - - 18.40
- - - - - 18.50
- - - - - 18.60
- - - - - 22
- - - - - 22.10
- - - - - 22.20
- - - - - 22.30
- - - - - 22.40
- - - - - 22.50
- - - - - 24
- - - - - 28
- - - - - 28.10
- - - - - 28.20
- - - - - 28.30
- - - - - 44
- - - - - 48
- - - - - 79
- - - - - 90
- - - - - 116
- - - - - 129
129.10
129.20
- 350 - - - 131
- - - - - 136
- - - - - 149
- - - - - 152
- - - - - 161
- - - - - 167
- - - - - 169
- - - - - 190
- - - - - 191
- - - - - 195
- - - - - 206
- - - - - 211
- - - - - 212
- - - - - 214
- - - - - 216
- - - - - 218
- - - - - 221
- - - - - 231
- - - - - 4
- - - 487 2,920 7
- - - 387 2,320 7.10
- - - 100 600 7.20
- - 923 - - 8
- - - 446 3,567 11
- 2,500 1,018,493 - - 12
- 100,000 - - - 20
- - 850,000 - - 32
91,982 - - 217 650 33
33.10
33.20
33.30
- - - 203 609 47
- - - - 2,000 50
- 1,027 126,396 - 2,230 55
- - - 125 500 57
- - - - 1,125 58
- 1,168 26,985 179 2,150 59
- 31,125 50,000 175 875 63
- - - 171 512 67
- - - 154 617 77
- - - 61 246 77.10
- - - 51 204 77.20
- - - 42 167 77.30
- 1,125 - 58 117 88
- 1,125 - - - 88.10
- - - 58 117 88.20
- - - - 1,680 89
- 1,136 - 142 425 100
- - - 138 553 101
101.10
101.20
101.30
101.40
101.50
101.60
- 1,262 - 129 775 106
106.10
106.20
- - - 125 250 107
- 1,125 - 126 506 109
- 627 - 121 362 111
- 1,139 - 125 625 112
- - - - - 114
- - - - 1,416 115
- - - 117 350 117
- 2,092 - 104 625 127
- 1,125 - - - 132
- - - 94 375 135
- - - 94 375 141
- 1,128 42,542 84 169 145
- - 1,844 85 340 147
147.10
147.20
147.30
- 1,125 - - - 150
- - - 75 150 156
- 1,125 - 71 283 157
- - - 71 212 160
- - - 65 194 165
- 20,237 - 61 243 176
- 1,336 2,800 60 239 179
- - - 52 156 187
- - - 49 148 193
- - - 50 297 194
- 1,137 - 48 239 197
- 1,125 - 50 100 199
- - - - - 207
</TABLE>
<PAGE>
EXHIBIT C-1
FORM OF TRANSFEREE AFFIDAVIT FOR THE
CLASS R-I, CLASS R-II AND CLASS R-III CERTIFICATES
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
__________________________, being first duly sworn, deposes
and says:
1. _______ That he is a _____________ of
______________________(the "Purchaser"), a ___________________, on behalf of
which he makes this affidavit.
2. _______ That the Purchaser's Taxpayer Identification Number
is ____________.
3. _______ That the Purchaser of the Prudential Securities
Secured Financing Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1999-C2, Class R-I, Class R-II and Class R-III (the "Class R-I
Certificates," the "Class R-II Certificates," and the "Class R-III
Certificates," respectively), is a Permitted Transferee (as defined in Article I
of the Pooling and Servicing Agreement, dated as of July 1, 1999, by and among
Prudential Securities Secured Financing Corporation, as depositor, National
Realty Funding L.C., as master servicer and special servicer and The Chase
Manhattan Bank, as trustee (the "Pooling and Servicing Agreement")) or is
acquiring the Class R-I Certificates, the Class R-II Certificates and the Class
R-III Certificates for the account of, or as agent (including as a broker,
nominee, or other middleman) for, a Permitted Transferee and has received from
such person or entity an affidavit substantially in the form of this affidavit.
4. _______ That the Purchaser historically has paid its debts
as they have become due and intends to pay its debts as they become due in the
future and the Purchaser intends to pay taxes associated with holding the Class
R-I Certificates, Class R-II Certificates and the Class R-III Certificates as
they become due.
5. _______ That the Purchaser understands that it may incur
tax liabilities with respect to the Class R-I Certificates, Class R-II
Certificates and/or the Class R-III Certificates in excess of any cash flow
generated by the Class R-I Certificates, Class R-II Certificates and the Class
R-III Certificates.
<PAGE>
6. _______ That the Purchaser will not transfer the Class R-I
Certificates, Class R-II Certificates or the Class R-III Certificates to any
person or entity from which the Purchaser has not received an affidavit
substantially in the form of this affidavit or as to which the Purchaser has
actual knowledge that the requirements set forth in paragraph 3, paragraph 4 or
paragraph 7 hereof are not satisfied or that the Purchaser has reason to know
does not satisfy the requirements set forth in paragraph 4 hereof.
7. _______ That the Purchaser is not a Disqualified Non-U.S.
Person (as defined in Article I of the Pooling and Servicing Agreement) and is
not purchasing the Class R-I Certificates, Class R-II Certificates or the Class
R-III Certificates for the account of, or as an agent (including as a broker,
nominee or other middleman) for, a Disqualified Non-U.S. Person.
8. _______ That the Purchaser agrees to such amendments of the
Pooling and Servicing Agreement as may be required to further effectuate the
restrictions on transfer of the Class R-I Certificates, Class R-II Certificates
or the Class R-III Certificates to such a "disqualified organization," an agent
thereof, or a person that does not satisfy the requirements of paragraph 4 and
paragraph 7 hereof.
9. _______ That, if a "tax matters person" is required to be
designated with respect to the (Upper-Tier/Middle-Tier/Lower-Tier) REMIC
pursuant to Section 4.4 of the Pooling and Servicing Agreement, the Purchaser
agrees to the irrevocable designation of the Trustee as the Purchaser's agent in
performing the function of "tax matters person" and "tax matters partner."
10. ______ The Purchaser agrees to be bound by and to abide by
the provisions of Section 5.2 of the Pooling and Servicing Agreement concerning
registration of the transfer and exchange of Class R-I Certificates, Class R-II
Certificates and Class R-III Certificates.
[Signature on next page]
- 2 -
<PAGE>
IN WITNESS WHEREOF, the Purchaser has caused this instrument
to be executed on its behalf, pursuant to authority of its Board of Directors,
this __ day of ______, 1999.
-------------------------------------------
By:
-------------------------------------------
Name:
Title:
Personally appeared before me the above-named ________________
known or proved to me to be the same person who executed the foregoing
instrument and to be the ____________ of the Purchaser, and acknowledged to me
that he executed the same as his free act and deed and the free act and deed of
the Purchaser.
Subscribed and sworn before me this ___ day of __________,
1999.
NOTARY PUBLIC
COUNTY OF NEW YORK )
) ss:
STATE OF NEW YORK )
My commission expires on the ___ day of ____________________, _____
<PAGE>
EXHIBIT C-2
FORM OF TRANSFER LETTER
_______, 1999
The Chase Manhattan Bank
as Trustee and Certificate Registrar
450 West 33rd Street
New York, New York 10001-2697
Attention: Capital Markets Fiduciary Services (CMBS)
RE: Prudential Securities Secured Financing Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2
Ladies and Gentlemen:
The undersigned, an authorized officer of ______________________
(the "Purchaser") has reviewed the attached affidavit of
______________________________, a ______________________ of the Purchaser, and
has no actual knowledge that such affidavit is not true and has no reason to
know that the information contained in paragraph 4 thereof is not true.
Very truly yours,
By:
-------------------------------
Name:
Title:
<PAGE>
EXHIBIT D
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
The Chase Manhattan Bank
450 West 33rd Street
14th Floor
New York, New York 10001
Attention: ______________________
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series
1999-C2 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_______________ (the "Transferor") to ________________ (the "Transferee") of a
Certificate (the "Transferred Certificate") having an initial Principal Balance
or Notional Amount as of July __, 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 __, 1999, among Prudential
Securities Secured Financing Corporation, as Depositor (the "Depositor"),
National Realty Funding L.C., as master servicer and as 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:
-------------------------------------------
1
<PAGE>
FORM I 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
Attention: ________________
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series
1999-C2 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to __________________ (the "Transferee") of
Class __________ Certificates having an initial Principal Balance or Notional
Amount as of July __, 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 __, 1999 (the "Pooling and Servicing Agreement"), among Prudential
Securities Secured Financing Corporation, as Depositor (the "Depositor"),
National Realty Funding L.C., as master servicer and as 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.
1
<PAGE>
Very truly yours,
--------------------------------------------
(Transferee)
By:
Name:
Title:
2
<PAGE>
ANNEX 1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates being
transferred (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A") because (i) the Transferee owned and/or invested on a
discretionary basis $______________________(1) in securities ____
(other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A) and (ii) the Transferee
satisfies the criteria in the category marked below.
____ Corporation, etc. The Transferee is a corporation (other
than a bank, savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Certificate in the case of a U.S. bank,
and not more than 18 months preceding such date of sale for a foreign bank or
equivalent institution.
____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a State
or Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as of a date not more
than 16 months preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months preceding such
date of sale for a foreign savings and loan association or equivalent
institution.
____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and
- --------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
3
<PAGE>
which is subject to supervision by the insurance commissioner or a similar
official or agency of a State, U.S. territory or the District of Columbia.
____ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Adviser. The Transferee is an investment adviser
registered under the Investment Advisers Act of 1940, as amended.
____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection (a)(1) of
Rule 144A pursuant to which it qualifies. Note that registered investment
companies should complete Annex 2 rather than this Annex 1.)
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the
Transferee, if the Transferee is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on
a discretionary basis by the Transferee, the Transferee did not include
any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless
the Transferee reports its securities holdings in its financial
statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed
under the Transferee's direction. However, such securities were not
included if the Transferee is a majority-owned, consolidated subsidiary
of another enterprise and the Transferee is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may
be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "No", then in each case
where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the
"qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
4
<PAGE>
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the
Transferee agrees that it will furnish to such parties any updated
annual financial statements that become available on or before the date
of such purchase promptly after they become available.
-------------------------------------------
Print Name of Transferee
By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
Date:
--------------------------------------
5
<PAGE>
ANNEX 2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act of
1933, as amended ("Rule 144A") because the Transferee is part of a
Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and
(ii) as marked below, the Transferee alone owned and/or invested on a
discretionary basis, or the Transferee's Family of Investment Companies
owned, at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of
securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee of any member of the Transferee's Family of Investment
Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities of such entity were valued at
market.
The Transferee owned and/or invested on a discretionary basis
$__________ in securities (other than the excluded securities referred to below)
as of the end of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
The Transferee is part of a Family of Investment Companies which owned
in the aggregate $____________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or
because one investment adviser is a majority owned subsidiary of the
other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes
and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement
and (vi) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on
a discretionary basis by the Transferee, or owned by the Transferee's
Family of Investment Companies, the securities referred to in this
paragraph were excluded.
6
<PAGE>
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "No", then in each case
where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the
"qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice by the undersigned, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
Print Name of Transferee or Adviser
By:
Name:
-------------------------------------------
Title:
-------------------------------------------
Date:
-------------------------------------------
IF AN ADVISER:
-----------------------------------------------
Print Name of Transferee
Date:
-----------------------------------------------
7
<PAGE>
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
Attention: _____________________
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series
1999-C2 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
__________________ (the "Transferor") to _____________________ (the
"Transferee") of Class ____ Certificates having an initial Principal Balance or
Notional Amount as of July __, 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 __, 1999 (the "Pooling and Servicing Agreement") among Prudential
Securities Secured Financing Corporation, as Depositor (the "Depositor"),
National Realty Funding L.C., as master servicer and as 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 to so register or
qualify the Class of Certificates to which the Transferred Certificates
belong, and (c) no Transferred Certificate may be resold or transferred
unless it is (i) registered pursuant to the Securities Act and
registered or qualified pursuant any applicable state securities laws
or (ii) sold or transferred in transactions which are exempt from such
registration and qualification and the Certificate Registrar has
received either: (A) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit
___ to the Pooling and Servicing Agreement and a certificate from such
Certificateholder's prospective transferee substantially in the form
attached either as Exhibit ___ or as Exhibit ___ to the Pooling and
Servicing Agreement; or (C) an opinion of counsel satisfactory to the
Trustee with respect to the availability of such exemption from
registration under the Securities Act, together with copies of the
written certification(s) from the transferor and/or transferee setting
forth the facts surrounding the transfer upon which such opinion is
based.
8
<PAGE>
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the
provisions of Section 3.3 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS
OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.] [NOT
APPLICABLE FOR CLASS A-EC CERTIFICATES.]
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a pledge, disposition or other transfer of any Certificate, any
interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation with respect to any Certificate, any interest in
any Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with
respect to any Certificate, any interest in any Certificate or any
other similar security, which (in the case of any of the acts described
in clauses (a) through (e) above) would constitute a distribution of
the Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of
the Securities Act or any state securities law or would require
registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any Certificate, any interest in any
Certificate or any other similar security.
6. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund
created pursuant thereto, (d) the nature, performance and servicing of
the Mortgage Loans, and (e) all related matters, that it has requested.
7. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities
Act or an entity in which all of the equity owners come within such
paragraphs. The Transferee has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Transferred Certificate; the
Transferee has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such investment and
can afford a complete loss of such investment.
9
<PAGE>
Very truly yours,
-------------------------------------------
(Transferee)
By:
-------------------------------------------
Name:
-------------------------------------------
Title:
-------------------------------------------
10
<PAGE>
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series
1999-C2 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to __________________ (the "Transferee")
of a Certificate (the "Transferred Certificate") having an initial Principal
Balance or Notional Amount as of July __, 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
__, 1999, between Prudential Securities Secured Financing Corporation, as
Depositor (the "Depositor"), National Realty Funding L.C., as master servicer
and as 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 acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in
any manner which would violate the Securities Act of 1933, as amended
(the "Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been
and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated to so
register or qualify the Certificates and (c) no interest in the
Certificates may be sold or transferred unless (i) such Certificates
are registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) such
interest sold or transferred in transactions which are exempt from such
registration and qualification and the Certificate Owner desiring to
effect such transfer has received either (A) a certification from such
Certificate Owner's prospective transferee (substantially in the form
attached to the Pooling and Servicing Agreement) setting forth the
facts surrounding the transfer or (B) an opinion of counsel
satisfactory to the Certificate Registrar with respect to the
availability of such exemption, together with copies of the
certification(s) from the transferor and/or transferee setting forth
the facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate
except in compliance with the provisions of Section 3.3 of the Pooling
and Servicing Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE WITHOUT
1
<PAGE>
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
[NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.] [NOT APPLICABLE TO CLASS A-EC CERTIFICATES.]
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a pledge, disposition or other transfer of any Certificate, any
interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, that (in the case of any of the
acts described in clauses (a) through (e) above) would constitute a
distribution of any Certificate under the Securities Act, would render
the disposition of an Certificate a violation of Section 5 of the
Securities Act or any state securities law or would require
registration or qualification of any Certificate pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate.
6. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and (d) all related
matters, that it has requested.
7. The Transferee is an institutional "accredited investor" as defined
in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has
such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the
Certificates; the Transferee has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
an investment and can afford a complete loss of such investment.
Very truly yours,
-------------------------------------------
(Transferee)
By:
-------------------------------------------
Name:
-------------------------------------------
Title:
-------------------------------------------
2
<PAGE>
NY_DOCS\371791.1
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series
1999-C2 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _____________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Principal Balance or Notional Amount as of July __, 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 __, 1999,
between Prudential Securities Secured Financing Corporation, as Depositor (the
"Depositor"), National Realty Funding L.C., as master servicer and as 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.
3
<PAGE>
4. Transferee understands that each Transferred Certificate will bear
the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
[NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.] [NOT APPLICABLE TO CLASS A-EC CERTIFICATES]
5. _______ The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the
nature, performance and servicing of the Mortgage Loans, (c) the
Pooling and Servicing Agreement, and (d) any credit enhancement
mechanism associated with the Transferred Certificate, that it has
requested.
Very truly yours,
-------------------------------------------
(Transferee)
By:
-------------------------------------------
Name:
-------------------------------------------
Title:
-------------------------------------------
4
<PAGE>
ANNEX 1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor and the Trustee, as
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A"), because (i) the Transferee owned and/or invested on a
discretionary basis $__________(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, 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.
- ---------------
(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.
5
<PAGE>
____ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
____ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
____ Investment Adviser. The Transferee is an investment adviser
registered under the Investment Advisers Act of 1940, as
amended.
____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
=============================================================
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the
Transferee, if the Transferee is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on
a discretionary basis by the Transferee, the Transferee did not include
any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless
the Transferee reports its securities holdings in its financial
statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed
under the Transferee's direction. However, such securities were not
included if the Transferee is a majority-owned, consolidated subsidiary
of another enterprise and the Transferee is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. _______ The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to
the Transferred Certificate are relying and will continue to rely on
the statements made herein because one or more sales to the Transferee
may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account?
6. _______ If the answer to the foregoing question is "No", then in
each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a
6
<PAGE>
"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
<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:
----------------------------------------------
8
<PAGE>
ANNEX 2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor and the Trustee, with
respect to the commercial mortgage pass-through certificate being transferred
(the "Transferred Certificate") as described in the Transferee Certificate to
which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee")
or, if the Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A"), because the Transferee is part of a Family of Investment
Companies (as defined below), is an executive officer of the investment
adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and
(ii) as marked below, the Transferee alone owned and/or invested on a
discretionary basis, or the Transferee's Family of Investment Companies
owned, at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of
securities owned by the Transferee or the Transferee's Family of
Investment Company, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment
Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $_________ in securities (other
than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or
because one investment adviser is a majority owned subsidiary of the
other).
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.
9
<PAGE>
5. _______ The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying
and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account?
6. _______ If the answer to the foregoing question is "No", then in
each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a
"qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. _______ The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification by
the undersigned as of the date of such purchase.
--------------------------------------------
Print Name of Transferee or Adviser
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
IF AN ADVISER:
--------------------------------------------
Print Name of Transferee
Date:
--------------------------------------------
10
<PAGE>
EXHIBIT E
FORM OF REQUEST FOR RELEASE
(FOR TRUSTEE/CUSTODIAN)
Loan Information
- ----------------
Name of Mortgagor: ____________________________
Mortgage Loan
Control Number: ____________________________
Custodian/Trustee
- -----------------
Name: The Chase Manhattan Bank
Address: 450 West 33rd Street, 14th Floor
New York, New York 10001-2697
Depositor
- ---------
Name: Prudential Securities Incorporated
Address: One New York Plaza, 18th Floor
New York, New York 10292
Certificates: Prudential Securities Secured
Financing Corporation, Commercial
Mortgage Pass-Through Certificates,
Series 1999-C2
The undersigned Master Servicer hereby acknowledges that it has received
from The Chase Manhattan Bank, as Trustee for the Holders of Prudential
Securities Secured Financing Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2, the documents referred to below (the "Documents").
All capitalized terms of not otherwise defined in this Request for Release shall
have the meanings given them in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of July 1, 1999, by and among
Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), National Realty Funding L.C., as master servicer (the "Master
Servicer") and special servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee").
(i) Promissory Note dated ___________, 199_, in the original principal sum of
$_________________, made by _______________, payable to, or endorsed to
the order of, the Trustee.
<PAGE>
(ii) Mortgage recorded on _________________ as instrument no. ________________
in the County Recorder's Office of the County of ___________________,
State of__________________ in book/reel/docket ________________ of
official records at page/image __________________.
(iii) Deed of Trust recorded on ____________________ as instrument no.
____________ in the County Recorder's Office of the County of
_________________, State of ________________ in book/reel/docket
____________________ of official records at page/image
___________________.
(iv) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_________________________ as instrument no. ____________________ in the
County Recorder's Office of the County of _________________, State of
_______________________ in book/reel/docket __________ of official records
at page/image ______________________
(v) Other documents, including any amendments, assignments or other
assumptions of the Note or Mortgage.
(a) __________________________________
(b) __________________________________
(c) __________________________________
(d) __________________________________
The undersigned Master Servicer and Special Servicer hereby acknowledge and
agree as follows:
(1) Each of the Master Servicer and Special Servicer, as applicable, shall
hold and retain possession of the Documents in trust for the benefit
of the Trustee, solely for the purposes provided in the Agreement.
(2) Each of the Master Servicer and Special Servicer shall not cause or
permit the Documents to become subject to, or encumbered by, any
claim, liens, security interest, charges, writs of attachment or other
impositions nor shall any of the Master Servicer or Special Servicer
assert or seek to assert any claims or rights of set-off to or against
the Documents or any proceeds thereof.
(3) The Master Servicer or Special Servicer, as applicable, shall return
the Documents to the Custodian when the need therefor no longer
exists, unless the Mortgage Loan relating to the Documents has been
liquidated and the proceeds thereof have been remitted to the
Collection Account and except as expressly provided in the Agreement.
-2-
<PAGE>
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of the Master Servicer
or Special Servicer shall at all times be earmarked for the account of
the Trustee, and the Master Servicer and Special Servicer shall keep
the Documents and any proceeds separate and distinct from all other
property in the Master Servicer's or Special Servicer's possession,
custody or control.
NATIONAL REALTY FUNDING L.C.
as Master Servicer
and Special Servicer
By: _______________________
Title: _______________________
Date: July ___, 1999
-3-
<PAGE>
EXHIBIT F
Intentionally Omitted
-4-
<PAGE>
EXHIBIT G-1
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT I (this
"Agreement") dated July __, 1999, is between PRUDENTIAL SECURITIES CREDIT CORP.,
a Delaware corporation (the "Seller"), and PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION, a Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller has originated or otherwise acquired
certain fixed rate mortgage loans from National Realty Finance L.C., a Missouri
limited liability company, and Bridger Commercial Realty Finance LLC , a
Missouri limited liability company (collectively, the "Mortgage Loan Sellers"),
pursuant to separate Mortgage Loan Purchase and Sale Agreements, each dated July
___, 1999, between the Seller and each of the Mortgage Loan Sellers
(collectively, the "Underlying Mortgage Loan Purchase and Sale Agreements");
WHEREAS, the Purchaser is simultaneously acquiring certain
fixed rate mortgage loans from Greenwich Capital Financial Products, Inc., a
Delaware corporation, pursuant to a separate Mortgage Loan Purchase and Sale
Agreement II, dated July _, 1999;
WHEREAS, the Seller desires to sell to Purchaser on the
Closing Date (as hereinafter defined), and the Purchaser desires to purchase
from the Seller, certain mortgage loans (collectively, the "Mortgage Loans"),
all of which are described in, and set forth in, the schedules attached hereto
as Annex A (the "Mortgage Loan Characteristics Schedule"), and the Purchaser
intends to deposit the Mortgage Loans in a trust fund (the "Trust Fund"), the
beneficial ownership of which will be evidenced by the Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, Class A-1, Class A-2, Class A-EC1,
Class A-EC2, 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 and Class R-II
(collectively, the "Certificates") issued pursuant to the Pooling and Servicing
Agreement dated as of July 1, 1999 (the "Pooling and Servicing Agreement") by
and between the Purchaser, as depositor (in such capacity, the "Depositor"),
National Realty Funding L.C., as servicer (in such capacity, the "Servicer") and
special servicer (in such capacity, the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (in such capacity, the "Trustee") (capitalized terms
used herein and not defined herein or in Annex B attached hereto shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement);
WHEREAS, the Purchaser intends to sell the Class A-1, Class
A-2, Class B, Class C, Class D, Class E and Class F Certificates (collectively,
the "Publicly Offered Certificates") registered under the Securities Act of
1933, as amended (the "Securities Act") to Prudential Securities Incorporated
("PSI"), and Greenwich NatWest Limited, as agent for National Westminster Bank
Plc. ("GNL"), as underwriters (in such capacities, the "Underwriters") pursuant
to an Underwriting Agreement to be dated the date hereof (the "Underwriting
Agreement");
WHEREAS, the Purchaser intends to sell the Class A-EC1, Class
A-EC2, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class R-I and Class R-II
<PAGE>
Certificates (the "Privately Offered Certificates") to PSI and GNL, as placement
agents (in such capacities, the "Placement Agents"), pursuant to a Certificate
Purchase Agreement to be dated on or about the date hereof (the "Certificate
Purchase Agreement"), as described in a Private Placement Memorandum relating
thereto, to be dated the date hereof (the "Private Placement Memorandum");and
WHEREAS, at the request of the Mortgage Loan Sellers, the
Underwriters have structured the several transactions contemplated by this
Agreement (collectively, the "Securitization Transaction"), and the Purchaser,
in reliance on the representations, warranties and covenants of the parties
contained herein, has agreed to enter into and complete the Securitization
Transaction, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals,
which are incorporated into the operative provisions of this Agreement by this
reference, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto
hereby agree as follows:
1. Purchase Proceeds; Purchase and Sale; Delivery of Mortgage
Files.
(a) On the Closing Date, the Seller hereby agrees to sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, and the Purchaser agrees to purchase all of the Seller's right, title
and interest in and to the Mortgage Loans and the related mortgage loan
documents (collectively, the "Mortgage Loan Documents"), including, without
limitation: (i) all scheduled payments of interest and principal due on or with
respect to each Mortgage Loan after July 1, 1999 (the "Cut-off Date"); (ii) all
other payments of interest and principal received on or with respect to each
Mortgage Loan after the Cut-off Date, other than any such payments of interest
or principal which were allocable to a period on or prior to the Cut-off Date;
(iii) all of the Seller's right, title and interest in and to the proceeds of
any related title, hazard or other insurance policies received on or with
respect to any Mortgage Loan after the Cut-off Date; (iv) all reserve accounts
and escrow accounts, if any, established pursuant to the related Mortgage Loan
Documents (collectively, the "Reserve Accounts"), and all of the Seller's right,
title and interest in and to the funds therein; and (v) to the extent
assignable, all of the Seller's rights under the Underlying Mortgage Loan
Purchase and Sale Agreements.
(b) The Purchaser shall purchase the Mortgage Loans and
Mortgage Loan Documents and pay the Seller an amount of the purchase proceeds
determined with that certain Loan Seller Agreement, dated May 24, 1999, between
Greenwich Capital Financial Markets, Inc., National Realty Finance L.C. and
Bridger Commercial Realty Finance LLC (the "Loan Seller Agreement") (the
"Purchase Proceeds") in an amount equal to $______________. The Purchase
Proceeds shall be paid to the Seller by wire transfer in immediately available
funds on the date of the consummation of the Securitization Transaction (the
"Closing Date") (or by such other method as the Purchaser and the Seller may
agree), with such later adjustments as provided for in the Loan Seller
Agreement. The closing for the purchase and sale of the Mortgage Loans shall
take place at the offices of Latham & Watkins, 885 Third Avenue, New York, New
York 10022.
2
<PAGE>
(c) The Seller hereby agrees to deliver to the Purchaser or
its designee, within the respective time periods described below, the following
documents or instruments with respect to each Mortgage Loan:
(i) the original of the related Note, endorsed
by the Seller in blank or in the following form: "Pay to the order of
The Chase Manhattan Bank, as Trustee, for the registered holders of
Prudential Securities Secured Financing Corporation Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, without recourse", which the
Purchaser or its designee is authorized to complete and which Note and
all endorsements thereof shall show a complete chain of endorsement
from the Originator to the Seller;
(ii)(a) the related original recorded Mortgage
or a copy thereof certified by the related title insurance company,
public recording office or closing agent to be in the form in which
executed and submitted for recording, (b) the related original recorded
Assignment of Mortgage from the Originator to the Seller, or a copy
thereof certified by the related title insurance company, public
recording office or closing agent to be in the form in which executed
and submitted for recording, and (c) the related original Assignment of
Mortgage executed by the Seller in blank, which the Purchaser or its
designee is authorized to complete (and but for the insertion of the
name of the assignee and any related recording information which is not
yet available to the Seller, is in suitable form for recordation in the
jurisdiction in which the related Mortgaged Property is located);
(iii)(a) if the related security agreement is
separate from the Mortgage, the original security agreement or a
counterpart thereof, (b) if the security agreement is not assigned
under the Assignments of Mortgage described in clause (ii) above, the
related original assignment of such security agreement from the
Originator to the Seller or a counterpart thereof, and (c) the related
original assignment of such security agreement executed by the Seller
in blank, which the Purchaser or its designee is authorized to
complete;
(iv)(a) a copy of each Form UCC-1 financing
statement, if any, filed with respect to personal property constituting
a part of the related Mortgaged Property, (b) a copy of each Form UCC-2
or UCC-3 assignment, if any, of such financing statement to the Seller
from the Originator, and (c) a copy of each Form UCC-2 or UCC-3
assignment, if any, of such financing statement executed by the Seller
in blank, which the Purchaser or its designee is authorized to complete
(and but for the insertion of the name of the assignee and any related
filing information which is not yet available to the Seller, is in
suitable form for filing in the filing office in which such financing
statement was filed);
(v) the related original of the Loan
Agreement, if any, relating to such Mortgage Loan or a counterpart
thereof;
3
<PAGE>
(vi) the related original lender's title
insurance policy (or the original pro forma title insurance policy),
together with any endorsements thereto;
(vii) if any related Assignment of Leases, Rents
and Profits is separate from the Mortgage, (a) the original recorded
Assignment of Leases, Rents and Profits or a copy thereof certified by
the related title insurance company, public recording office or closing
agent to be in the form in which executed and submitted for recording,
(b) the related original recorded reassignment of such instrument, if
any, from the Originator to the Seller or a copy thereof certified by
the related title insurance company, public recording office or closing
agent to be in the form in which executed and submitted for recording,
and (c) the related original reassignment of such instrument, if any,
executed by the Seller in blank, which the Purchaser or its designee is
authorized to complete (and but for the insertion of the name of the
assignee and any related recording information which is not yet
available to the Seller, is in suitable form for recordation in the
jurisdiction in which the related Mortgaged Property is located) (any
of which reassignments, however, may be included in a related
Assignment of Mortgage and need not be a separate instrument);
(viii) if any related assignment of contracts is
separate from the Mortgage, the original assignment of contracts or a
counterpart thereof, and if the assignment of contracts is not assigned
under the Assignments of Mortgage described in clause (ii) above, the
related original reassignment of such instrument from the Originator to
the Seller or a counterpart thereof and the related original
reassignment of such instrument executed by the Seller in blank, which
the Purchaser or its designee is authorized to complete;
(ix) with respect to the related Reserve
Accounts, if any, a copy of the original of any separate agreement with
respect thereto between the related Borrower and the Originator;
(x) the original of any other written
agreement, instrument or document securing such Mortgage Loan,
including, without limitation, originals of any guarantees with respect
to such Mortgage Loan or the original letter of credit, if any, with
respect thereto, together with any and all amendments thereto,
including, without limitation, any amendment which entitles the
Purchaser or its designee to draw upon such letter of credit, and the
original of each instrument or other item of personal property given as
security for a Mortgage Loan possession of which by a secured party is
necessary to a secured party's valid, perfected, first priority
security interest therein, together with all assignments or
endorsements thereof necessary to entitle the Purchaser or its designee
to enforce a valid, perfected, first priority security interest
therein;
(xi) with respect to the related Reserve Accounts,
if any, (a) a copy of the UCC-1 financing statements, if any,
submitted for filing with respect to the Originator's security interest
in such Reserve Accounts and all funds contained therein, (b) a copy of
each Form UCC-2 or UCC-3
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assignment, if any, of such financing statement from the Originator to
the Seller, and (c) a copy of each Form UCC-2 or UCC-3 assignment, if
any, of such financing statement executed by the Seller in blank which
the Purchaser or its designee is authorized to complete (and but for
the insertion of the name of the assignee and any related filing
information which is not yet available to the Seller is in suitable
form for filing in the filing office in which such financing statement
was filed); and
(xii) copies of any and all amendments,
modifications and supplements to, and waivers related to, any of the
foregoing.
Such documents and instruments relating to each Mortgage Loan
are collectively referred to herein as the "Mortgage File". In connection with
the Seller's delivery of Mortgage Loan Documents in accordance with this Section
1(c), the Seller hereby authorizes the Purchaser or its designee to complete
each endorsement or assignment in blank appearing thereon in such manner as the
Purchaser or its designee shall determine in the exercise of its sole discretion
(provided that such endorsement or assignment will be without recourse,
representation or warranty except as expressly set forth in this Agreement). In
addition, all funds held by the Seller in the Reserve Accounts shall be
delivered to the Purchaser or its designee on or before the Closing Date.
If the Seller cannot deliver, or cause to be delivered, as to
any of the Mortgage Loans, the original or a copy of any of the documents and/or
instruments referred to in this Section 1(c)(ii)(a) or (b), (iv)(a) or (b),
(vii)(a) or (b), (xi)(a) or (b) and (xii), with (if appropriate) evidence of
recording or filing, as the case may be, thereon, solely because of a delay
caused by the public recording or filing office where such document or
instrument was submitted for recording or filing, the delivery requirements set
forth above shall be deemed to have been satisfied as to such missing document
or instrument, and such missing document or instrument shall be deemed to have
been included in the related Mortgage File, provided that the Seller has
delivered to the Purchaser or its designee on or before the Closing Date a copy
of such document or instrument (without evidence of recording or filing thereon,
but certified (which certificate may relate to multiple documents and/or
instruments) by the Seller to be a true and complete copy of the original
thereof submitted for recording or filing, as the case may be), and the Seller
shall deliver to or at the direction of the Purchaser or its designee, promptly
following the receipt thereof, the original of such missing document or
instrument (or a copy thereof) with (if appropriate) evidence of recording or
filing, as the case may be, thereon. If the Seller cannot deliver, or cause to
be delivered, as to any of the Mortgage Loans, the original of any of the
documents referred to in clause 1(c)(ii)(a) or (b) or (vii)(a) or (b) solely
because the public recording office retains the original assignment, then the
Seller, at its expense, shall deliver to the Purchaser or its designee a copy of
the recorded original. If the Seller cannot deliver, or cause to be delivered,
as to any of the Mortgage Loans, the original or a copy of the related lender's
title insurance policy referred to in clause (vi) solely because such policy has
not yet been issued, the delivery requirements set forth above shall be deemed
to be satisfied as to such missing document, and such missing document shall be
deemed to have been included in the related Mortgage File, provided that the
Seller has delivered to the Purchaser or its designee on or before the Closing
Date a commitment for title insurance "delivered" at the closing of such
Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser or its designee, promptly following the receipt thereof, the original
lender's title insurance policy (or a copy thereof).
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Notwithstanding the immediately preceding paragraph, the
failure to deliver the originals or copies of any of the documents or
instruments referred to in this Section 1(c)(ii)(a) or (b), (iv)(a) or (b),
(vii)(a) or (b), (xi)(a) or (b) and (xii) within 120 days after the Closing Date
shall cause the related Mortgage Loan to become a Defective Document Mortgage
Loan under Section 3 hereof.
In addition, the Seller shall be required to deliver to the
Purchaser or its designee all other Mortgage Loan Documents related to such
Mortgage Loan that are not required to be delivered pursuant to clauses (i)
through (xii) above, including without limitation a copy of the Management
Agreement, if any, for the related Mortgaged Property; a copy of the related
ground lease, as amended, if any, for such Mortgaged Property; any and all
amendments, modifications and supplements to, and waivers related to, any of the
foregoing; copies of the related Appraisals, surveys, environmental reports,
leases and other similar documents; and any other written agreements related to,
or documents obtained or maintained in connection with the origination of, such
Mortgage Loan.
(d) The Mortgage Loans shall be sold to the Purchaser
on a servicing-released basis. In accordance with the Pooling and Servicing
Agreement, the Servicer shall assume responsibility for the servicing of each
Mortgage Loan immediately upon deposit of the Mortgage Loans in the Trust Fund
on the Closing Date. The Seller shall cooperate in all reasonable respects with
the Purchaser and the Servicer in connection with such transfer of servicing
responsibilities effective on the Closing Date. The Seller and the Purchaser
acknowledge that certain third parties currently act as custodian with respect
to the Mortgage Loans. Effective upon deposit of the Mortgage Loans in the Trust
Fund on the Closing Date, the Trust Fund shall appoint The Chase Manhattan Bank
to act as custodian (in such capacity, the "Custodian") for the Trust Fund with
respect to the original Mortgage Files pursuant to the Pooling and Servicing
Agreement. The Seller agrees to cooperate with the Purchaser and the Custodian
in connection with the transfer of the Mortgage Files to the Custodian and to
provide such documents, information and instructions as shall be reasonably
necessary or convenient with respect thereto. Effective on the Closing Date, the
Seller shall provide the Purchaser (or the Servicer or other designee of the
Purchaser) with copies of the Mortgage Files and specific assignments of the
Mortgage Loan Documents pursuant to Section 1 above and such other documents and
information as the Purchaser shall reasonably request.
2. Representations and Warranties.
(a) The Seller hereby represents and warrants to the Purchaser
and its successors and assigns as provided in this Agreement (subject to the
qualifications with respect to matters of enforceability set forth below in
Section 2(c)) as of the date hereof and as of the Closing Date that:
(i) Due Organization; Qualification. It is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, and is duly qualified to transact
business as a foreign corporation and in good standing in each state in
which the nature of its business or property owned by it requires such
foreign qualification.
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(ii) Authority. It has the full power,
authority and legal right to execute and deliver this Agreement (and
all agreements executed and delivered by it in connection herewith) and
to perform all transactions contemplated by this Agreement (and all
agreements executed and delivered by it in connection herewith). It has
duly authorized the execution, delivery and performance of this
Agreement (and all agreements executed and delivered by it in
connection herewith), and has duly executed and delivered this
Agreement (and all agreements executed and delivered by it in
connection herewith). This Agreement (and each agreement executed and
delivered by it in connection herewith), assuming due authorization,
execution and delivery by each other party hereto (and thereto),
constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally, by general principles
of equity and by any applicable anti-deficiency laws (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
(iii) No Conflicts. Neither the execution and
delivery of this Agreement nor the fulfillment of or compliance with
the terms and conditions of this Agreement by it will (A) conflict with
or result in a breach of any of the terms, conditions or provisions of
its certificate of incorporation, as amended, or other organizational
documents or any agreement or instrument to which the Seller is now a
party or by which it (or any of its properties) is bound, or constitute
a default or result in an acceleration of indebtedness under any of the
foregoing; (B) conflict with or result in a breach of any legal
restriction if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement, or (2) for it to perform its duties
and obligations under this Agreement (or any agreement executed and
delivered by it in connection herewith); (C) result in the violation of
any law, rule, regulation, order, judgment or decree to which it (or
any of its properties) is subject if compliance therewith is necessary
(1) to ensure the enforceability of this Agreement, or (2) for it to
perform its duties and obligations under this Agreement (or any
agreement executed and delivered by it in connection herewith); or (D)
result in the creation or imposition of any lien, charge or encumbrance
that would have a material adverse effect upon any of its properties
pursuant to the terms of any mortgage, deed of trust, contract or other
instrument.
(iv) Solvency. It is solvent and the execution,
delivery and performance of this Agreement (A) will not cause it to
become insolvent, and (B) is not intended by it to hinder, delay or
defraud any of its creditors.
(v) No Consent Required. No consent, approval,
authorization or order of, or registration or filing with, or notice
to, any court or governmental agency or body having jurisdiction or
regulatory authority over it is required for (A) its execution and
delivery of this Agreement (and each agreement executed and delivered
by it in connection herewith) or (B) the consummation by it of the
transactions contemplated by this Agreement (and each agreement
executed and delivered by it in connection herewith) or, to the extent
so required, such consent, approval, authorization, order,
registration, filing or notice has been obtained, made or given (as
applicable), except that (1) it may
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not be duly qualified to transact business as a foreign corporation or
licensed in one or more states if such qualification or licensing is
not necessary for it to perform its duties and obligations under this
Agreement (or any agreement executed and delivered by it in connection
herewith), and (2) it makes no representation with respect to any
required registration under the Securities Act or any state securities
or "Blue Sky" laws in connection with the Securitization Transaction.
(vi) Ability to Perform. It does not believe,
nor does it have any reason or cause to believe, that it cannot perform
each and every covenant of it contained in this Agreement (or any
agreement executed and delivered by it in connection herewith).
(vii) No Litigation Pending. There are no
actions, suits or proceedings with respect to which it has received
service of process or, to its knowledge, threatened against it which
draw into question the validity of this Agreement or which (if decided
adversely to it), either in any one instance or in the aggregate, would
result in any material adverse change in its business, operations, or
financial condition or would materially impair its ability to perform
its duties and obligations under this Agreement (or any agreement
executed and delivered by it in connection herewith).
(viii) No Brokers. It has not dealt with any Person
(other than the Purchaser) that may be entitled, by reason of any act
or omission by it, to any commission or compensation in connection with
this Agreement or the transactions contemplated hereby.
(ix) No Default. It is not in default or breach
of any agreement or instrument to which it is now a party or by which
it (or any of its properties) is bound which breach or default would
materially and adversely affect its ability to perform its obligations
under this Agreement.
(b) The Seller (with respect to each Mortgage Loan unless
otherwise indicated) hereby represents and warrants to the Purchaser and its
successors and assigns as provided in this Agreement (subject to the
qualifications with respect to matters of enforceability set forth below in
Section 2(c)) that as of the date specified below or, if no such date is
specified, as of the date hereof, and as of the Closing Date and subject to the
exceptions disclosed on Annex C attached hereto:
(i) Mortgage Loan Characteristics. The information
set forth in the Mortgage Loan Characteristics Schedule is true,
correct and complete in all material respects; provided, however,
that with respect to the information set forth with respect to each
Mortgage Loan under the captions "Physical Occupancy %," "Occupancy As
of Date," "1996 NOI," "1997 NOI," "1998 NOI," "Underwritten NOI,"
"Underwritten Net Cash Flow" and "Underwritten NOI DSCR", the Seller
represents only that such information is a correct and accurate
reproduction or derivation, as adjusted by the Seller in accordance
with its customary underwriting practices and procedures, of the
information provided to it by the related Borrower (or an affiliate or
principal thereof) and takes no responsibility for the accuracy or
completeness of any such information provided
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by the related Borrower (or such affiliate or principal); provided,
further, however, that the Seller has no actual knowledge that such
information is incorrect, inaccurate or incomplete following the
reasonable and customary due diligence performed by the Seller in
connection with its origination or purchase of the Mortgage Loans.
(ii) Domestic Borrower. The related Borrower is
an individual who is a citizen of, or an entity organized under the
laws of, a state of the United States of America.
(iii) Single-Purpose, Bankruptcy Remote Entity.
Each Borrower of a Mortgage Loan in excess of $25,000,000 is an entity
which has represented in connection with the origination of the
Mortgage Loan, or whose organizational documents as of the date of
origination of the Mortgage Loan provide that so long as the Mortgage
Loan is outstanding it will be a single-purpose entity whose activities
and ability to incur debt are restricted by the applicable Mortgage or
the organizational documents in a manner intended to make the
likelihood of bankruptcy proceedings being commenced by or against such
Borrower remote, and as to which the Borrower has delivered an opinion
of counsel concerning substantive non-consolidation and as to which the
Borrower has at least one independent director. For this purpose,
"single-purpose entity" shall mean a Person, other than an individual,
which does not engage in any business unrelated to the related
Mortgaged Property and its financing, does not have any assets other
than those related to its interest in such Mortgaged Property or its
financing, or any indebtedness other than as permitted by the related
Mortgage or the other Mortgage Loan Documents, has its own books and
records separate and apart from any other Person and holds itself out
as being a legal entity, separate and apart from any other Person.
(iv) Delivery of Mortgage Loans Documents. The
Seller has caused or will cause to be delivered to the Purchaser (or
its designee) within the time period prescribed in Section 1 each of
the documents comprising the Mortgage File for such Mortgage Loan.
(v) Payment Current. All payments required to
be made with respect to such Mortgage Loan under the terms of the
related Note or the related Mortgage (inclusive of any applicable grace
or cure period) up to the Closing Date have been made. Within the
twelve months preceding the Closing Date, there has not been any
delinquency in excess of 30 days with respect to such Mortgage Loan.
(vi) Equity Participation or Participation
Interest. Such Mortgage Loan contains no equity participation by the
Seller and is a whole loan and not a participation interest. Neither
the related Note nor the related Mortgage provides for negative
amortization or any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property. The
Seller has no ownership interest in such Mortgaged Property or the
related Borrower other than in such Mortgage Loan being sold and
assigned. Neither the Seller nor any affiliate of the Seller has any
obligation to make any capital contributions to the related Borrower
under the Mortgage or any other related Mortgage Loan Document.
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(vii) Compliance with Applicable Laws. As of the
date of its origination, such Mortgage Loan either complied with, or
was exempt from, applicable federal or state laws, regulations and
other requirements pertaining to usury. To the best of the Seller's
knowledge, as of the date of origination of such Mortgage Loan, the
related originator complied in all material respects with the
requirements of any and all other federal, state or local laws
applicable to the origination, servicing and collection of such
Mortgage Loan. No governmental or regulatory approval or consent is
required for the sale of such Mortgage Loan by the Seller, and the
Seller has full right, power and authority to sell such Mortgage Loan.
To the extent necessary to ensure the enforceability of such Mortgage
Loan and the effective sale, transfer and assignment thereof and of the
related Note, the originator and/or the Seller each was qualified and
appropriately licensed to transact business in the jurisdiction in
which the related Mortgaged Property is located at the time such entity
had possession of the related Note.
(viii) Proceeds Fully Disbursed. The proceeds of such
Mortgage Loan have been fully disbursed (although certain reserve
accounts controlled by the Seller may have been established as
described in the Mortgage Loan Characteristics Schedule), and there is
no requirement for future advances thereunder.
(ix) Origination Expenses Paid. All costs, fees
and expenses incurred in connection with the origination and closing of
such Mortgage Loan, including, without limitation, recording costs and
fees, have been paid to the appropriate person or arrangements have
been made for their payment to the appropriate person on a timely basis
by the related Borrower.
(x) Documents Valid. Each of the related Note,
the related Mortgage and any other related Mortgage Loan Document is
the legal, valid and binding obligation of the related Borrower, the
related guarantor or other party executing such document (subject to
any non-recourse or partial recourse provisions contained therein), and
is enforceable in accordance with its terms (subject to the
qualifications set forth in Section 2(c)). There is no valid offset,
defense, counterclaim or right of rescission with respect to such Note,
Mortgage or any other Mortgage Loan Document, nor will the operation of
any of the terms of such Note or Mortgage, or the exercise of any right
thereunder, render either such Note or Mortgage unenforceable or
subject to any valid offset, defense, counterclaim or right of
rescission, including, without limitation, the defense of usury, and
the Seller has no knowledge that any such offset, defense,
counterclaim, or right of rescission has been asserted or is available
with respect thereto. Except as described in the immediately following
sentence, the related Note and the related Mortgage do not require the
related mortgagee to release any portion of the related Mortgaged
Property except upon payment in full of such Mortgage Loan or the
exercise of a defeasance feature. In the case of certain Mortgaged
Properties securing cross-collateralized Mortgage Loans, certain
Mortgage Loans secured by multiple Mortgaged Properties, and certain
Mortgage Loans secured by one or more parcels constituting a single
Mortgaged Property, the related mortgagee may be required to release a
Mortgaged Property or a portion thereof upon payment of a portion of
the related Mortgage Loan as specified in the related Mortgage Loan
Documents.
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(xi) Assignment of Mortgage; Note Endorsement.
The related Assignment of Mortgage (but for the insertion of the name
of the assignee and any related recording information which is not yet
available to the Seller) is or will be in recordable form and
constitutes or will constitute the Seller's legal, valid and binding
assignment to the Purchaser of the related Mortgage and any related
Assignment of Leases, Rents and Profits or assignment of Assignment of
Leases, Rents and Profits. The Seller's endorsement and delivery of the
related Note to the Purchaser in accordance with the terms of this
Agreement constitutes or will constitute the Seller's legal, valid and
binding assignment to the Purchaser of such Note, and together with the
Seller's execution and delivery of such Assignment of Mortgage to the
Purchaser, legally and validly conveys or will convey all right, title
and interest of the Seller in such Mortgage Loan to the Purchaser.
(xii) First Lien. Based on the related policy of
title insurance (or pro forma or specimen policy or "marked-up"
commitment for title insurance), the related Mortgage is a legal, valid
and enforceable first lien on the related Mortgaged Property (including
all buildings and improvements on such Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air
conditioning systems located in or annexed to such buildings, and all
additions, alterations and replacements made at any time prior to the
closing date of such Mortgage Loan with respect to the foregoing, but
excluding any related personal property) which Mortgaged Property is
free and clear of all liens and encumbrances having priority over or
equal to the first lien of such Mortgage, except for (A) the lien of
current real estate taxes and special assessments not yet delinquent or
accruing interest or penalties, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage which do not
materially and adversely (1) affect the value of such Mortgaged
Property as security for such Mortgage Loan, or (2) interfere with the
related Borrower's ability to make required interest and principal
payments or to make use of such Mortgaged Property for the intended
purposes therefor, (C) leases and subleases pertaining to such
Mortgaged Property which the Seller did not require to be subordinated
to the lien of such Mortgage; provided that such leases and subleases,
if any, are with entities which are not affiliated with the Seller, and
(D) other matters which do not, individually or in the aggregate,
materially and adversely (1) affect the value of such Mortgaged
Property as security for such Mortgage Loan, or (2) interfere with the
related Borrower's ability to make required principal and interest
payments or to make use of such Mortgaged Property for the intended
purposes therefor.
(xiii) No Modification, Release or Satisfaction.
Except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (A)
neither the related Note nor the related Mortgage (including any
amendments or supplements thereto included in the related Mortgage
File) has been impaired, waived, modified, altered, satisfied, canceled
or subordinated or rescinded, (B) the related Mortgaged Property has
not been released from the lien of such Mortgage and (C) the related
Borrower has not been released from its obligations under such
Mortgage, in whole or in any part, in each such event in a manner which
would materially interfere with the benefits of the security intended
to be provided by such Mortgage.
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(xiv) Defeasance. A Mortgage Loan which permits
defeasance provides that, after the applicable Defeasance Lockout
Period, the related Borrower may obtain the release of all or a portion
of the related Mortgaged Property from the lien of the related Mortgage
upon the pledge to the Trustee of non-callable U.S. Treasury or other
non-callable U.S. government obligations that provide for payments on
or prior to all successive payment dates to maturity (or, in the case
of an ARD Loan, through the related Anticipated Repayment Date) in the
amounts due on such dates and upon the satisfaction of certain other
conditions. A Mortgage Loan containing a defeasance provision has a
Defeasance Lockout Period of not less than two years after the Closing
Date or includes other conditions precedent the satisfaction of which
will ensure that the exercise of such a feature will not cause a REMIC
to fail to be a REMIC. In certain cases, the Mortgage Loans require
that a REMIC opinion be provided as a condition to exercise of any
defeasance option, and the Mortgage or the other related Mortgage Loan
Documents generally require the satisfaction of one or more of the
following conditions prior to the defeasance of the related Mortgaged
Property:
(A) the related Borrower must provide
the mortgagee with a prior written notice of not less than 30
days;
(B) the related Borrower must either
(i) deliver to the mortgagee or the servicer of the Mortgage
Loan, as the case may be, government obligations described
above in this Section 2(b)(xiv) or (ii) pay to the mortgagee
or the servicer of the Mortgage Loan, as the case may be, an
amount sufficient to purchase the government obligations
described above in this Section 2(b)(xiv);
(C) the related Borrower must provide
a written confirmation from the Rating Agencies indicating
that such defeasance will not result in a reduction,
withdrawal or qualification of the respective ratings of any
outstanding Classes of Certificates;
(D) the related Borrower must deliver
an officer's certificate to the effect that all of its
obligations with respect to the Mortgage Loan have been
satisfied and that the Mortgage Loan is not in default; and
(E) the related Borrower must
undertake to provide such other documents or information as
the mortgagee may reasonably request in connection with such
defeasance.
(xv) No Delinquent Taxes or Assessments. All
tax or governmental assessments, or installments thereof, which were
due on or prior to the date of origination had been paid as of such
date and the Seller knows of no tax or governmental assessment, or if
payable in installments, any installment thereof, which became due and
owing thereafter and prior to the Closing Date in respect of the
related Mortgaged Property, which, if left unpaid, would be, or might
become, a lien on such Mortgaged Property having priority over the
related Mortgage which has become delinquent such that (A) such tax,
assessment or installment has commenced to accrue interest or
penalties, or (B)
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the applicable taxing authority may commence proceedings to collect
such tax, assessment or installment, as applicable.
(xvi) Escrow or Reserve Deposits. As of the
Closing Date: (A) the related Reserve Account(s), if any, contain all
escrow deposits and other payments required by the terms of the related
Mortgage Loan Documents (inclusive of any applicable grace or cure
period) to be held by the Seller as of the Closing Date; and (B) the
Seller is transferring all amounts on deposit in the related Reserve
Account(s) on the Closing Date to the Purchaser or to the extent not
being transferred to the Purchaser, all escrow deposits and other
payments required under the related Note, the related Mortgage and any
other related Mortgage Loan Documents have been applied in accordance
with their intended purposes by the related mortgage loan originator,
the related Mortgage Loan Seller or its agent.
(xvii) No Third Party Advances. The Seller has not,
directly or indirectly, (A) advanced funds, (B) induced or solicited
any payment from a Person other than the related Borrower, or (C) to
the Seller's knowledge, received any payment other than from such
Borrower, for the payment of any amount required under the related Note
or the related Mortgage, except for interest accruing from the date of
such Note or the date of disbursement of the proceeds of such Mortgage
Loan, whichever is later, to the date which precedes by 30 days the
first Due Date under such Note.
(xviii) No Condemnation or Damages. To the best of
the Seller's knowledge, no proceedings for the total or partial
condemnation of the related Mortgaged Property (A) have occurred since
the date as of which the appraisal relied upon in the origination of
such Mortgage Loan was prepared, or (B) are pending or threatened other
than, in each such case, proceedings as to partial condemnation which
do not materially and adversely affect the value of such Mortgaged
Property as security for such Mortgage Loan. To the best of Seller's
knowledge, the related Mortgaged Property is free of material damage.
The related Mortgage requires that any related condemnation award be
applied either to the restoration of the related Mortgaged Property or
to the payment of the outstanding principal balance of or accrued
interest on such Mortgage Loan.
(xix) No Mechanics' Liens. To the Seller's
knowledge, the related Mortgaged Property (excluding any related
personal property) (i) is free and clear of any mechanics' and
materialmen's liens or liens in the nature thereof, and (ii) no rights
are outstanding that, under applicable law, could give rise to any such
liens, any of which liens are or may be prior to, or equal with, the
lien of the related Mortgage, except, with respect to (i) and (ii)
above, those which are insured against by the related lender's title
insurance policy referred to in Section 2(b)(xxiii) below.
(xx) Title Survey: Improvements; Separate Tax
Parcels. The Seller has delivered an as-built survey, a survey
recertification, a site plan, a recorded plat or the like with respect
to the related Mortgaged Property which satisfied, or the Seller
otherwise satisfied, the requirements of the related title insurance
company for deletion of the standard general exceptions for
encroachments, boundary and other survey matters and
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for easements not shown by the public records from the related title
insurance policy, except with respect to any related Mortgaged Property
located in a jurisdiction (such as the State of Texas where survey
title insurance coverage is prohibited by law) in which the exception
for easements not shown by the public records could not be deleted and
such standard general exception is customarily accepted by prudent
commercial mortgage lenders in such jurisdiction. Except for
encroachments and similar matters which are inconsequential, do not
materially and adversely affect the value of such Mortgaged Property as
security for such Mortgage Loan, or are insured against by the related
lender's title insurance policy described in Section 2(b)(xxiii) below,
surveys and/or title insurance obtained at the time of the origination
of such Mortgage Loan indicated or insured that (A) none of the
improvements which were included for the purpose of determining the
Appraised Value of such Mortgaged Property in the related appraisal at
the time of the origination of such Mortgage Loan lie outside the
boundaries and building restriction lines of such Mortgaged Property,
and (B) no improvements on adjoining properties encroach upon such
Mortgaged Property. The related Mortgaged Property constitutes one or
more complete separate tax lots or is subject to an endorsement under
the related lender's title insurance policy.
(xxi) Title. The Seller has good title to and is
the sole owner and beneficial holder of such Mortgage Loan. The Seller
has full power, authority and legal right to sell and assign such
Mortgage Loan hereunder, is the sole mortgagee or beneficiary of record
under the related Mortgage and is transferring such Mortgage Loan to
the Purchaser free and clear of any and all liens, encumbrances,
participation interests, pledges, charges or security interests of any
nature encumbering such Mortgage Loan.
(xxii) Compliance with Laws. To the best of the
Seller's knowledge (based upon a letter or letters from governmental
authorities, a legal opinion, an endorsement or endorsements to the
related title insurance policy, a representation of the related
Borrower at the time of origination of such Mortgage Loan or other
information reasonably acceptable to the Seller at the time of its
origination thereof), (A) no improvements located on or forming a part
of the related Mortgaged Property are in violation of any applicable
zoning and building laws or ordinances, (B) the related Mortgaged
Property complies with all other laws and regulations pertaining to the
use and occupancy thereof (excluding Environmental Laws which are
addressed in Sections 2(b)(xxxiv) and 2(b)(xxxv) below) and all
applicable insurance requirements, (C) such Borrower has obtained all
inspections, licenses, permits, authorizations, and certificates
necessary for such compliance, including, but not limited to,
certificates of occupancy (if available), and (D) the Seller has not
received notification from any governmental authority that such
Mortgaged Property violates or does not comply with such laws or
regulations or is being used, operated or occupied unlawfully or that
such Borrower has failed to obtain such inspections, licenses, permits,
authorizations, or certificates, except for such violation or
non-compliance (1) which does not materially and adversely affect the
value of such Mortgaged Property as security for such Mortgage Loan or
the use for which such Mortgaged Property was intended at the time of
origination of such Mortgage Loan, (2) which is specifically addressed
by the appraiser in the determination of the related Appraised Value,
or (3) for which a Reserve Account held for the Seller has been
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established in an amount sufficient to pay for the estimated costs to
correct such violations or non-compliance.
(xxiii) Title Insurance. The lien of the related
Mortgage is insured by an ALTA lender's title insurance policy or, if
an ALTA lender's title insurance policy is unavailable, another
state-approved form of lender's title insurance policy issued in an
amount not less than the stated principal amount of such Mortgage Loan
(after all advances of principal) insuring the Seller and its
successors and assigns that the related Mortgage is a valid first lien
on the related Mortgaged Property, subject only to exceptions described
in Section 2(b)(xii) above (or, if such a title insurance policy has
not yet been issued in respect of such Mortgage Loan, such a policy
will be issued and is currently evidenced by a pro forma or specimen
policy or by a "marked-up" commitment for title insurance which was
furnished by the related title insurance company for purposes of
closing such Mortgage Loan). The premium for such title insurance
policy has been paid in full and such title insurance policy is (or,
when issued, will be) in full force and effect, and upon endorsement
and delivery of the related Note to the Purchaser and recording of the
related Assignment of Mortgage in favor of the Purchaser in the
applicable real estate records, such title insurance policy will inure
to the benefit of the Purchaser. Such title insurance policy (A) does
not contain the standard general exceptions for encroachments, boundary
or other survey matters and for easements not shown by the public
records, other than matters which do not materially and adversely (1)
affect the value of the related Mortgaged Property as security for the
Mortgage Loan, or (2) interfere with the related Borrower's ability to
make required principal and interest payments or to make use of such
Mortgaged Property for the intended purposes, and (B) only contains
such exceptions for encroachments, boundary and other survey matters as
are customarily accepted by prudent commercial mortgage lenders. The
Seller and its agents have not taken, or failed to take, any action
that would materially impair the coverage benefits of any such title
insurance policy. The Seller has not made any claim under such title
insurance policy.
(xxiv) Insurance Related to Mortgaged Property. All
improvements on the related Mortgaged Property are insured by (A) a
fire and extended perils insurance policy providing coverage on a full
replacement cost basis in an amount not less than the lesser of (1) the
full replacement cost of all improvements to such Mortgaged Property,
and (2) the outstanding principal balance of such Mortgage Loan, but in
any event in an amount sufficient to avoid the operation of any
co-insurance provisions contained in such insurance policy, which
policy contains a standard mortgagee clause naming the originator or
the Seller and its successors as additional insureds; (B) an insurance
policy providing business interruption or rental continuation coverage
in an amount not less than the income anticipated from 12 months of
operations of such Mortgaged Property; (C) a comprehensive general
liability insurance policy in an amount not less than $1,000,000 per
occurrence; and (D) if any material improvement on such Mortgaged
Property is located in an area identified by the Federal Emergency
Management Agency as having special flood hazards under the National
Flood Insurance Act of 1968, as amended, a flood insurance policy
providing coverage in an amount not less than the lesser of (1) the
stated principal amount of the related Note, and (2) the maximum amount
of insurance
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available under the Flood Disaster Protection Act of 1973, as amended.
As of the Closing Date, the insurance premium for each such insurance
policy shall have been paid or escrowed. Each such insurance policy
contains a clause providing that it is not terminable and may not be
reduced without 30 days' prior written notice to the mortgagee (except
that, in the event of nonpayment of insurance premiums, each such
insurance policy provides for termination upon not less than 10 days'
prior written notice), and no such notice has been received by the
Seller. With respect to each such insurance policy, the Seller has
received a certificate of insurance or similar document dated within
the last 12 months to the effect that such insurance policy is in full
force and effect. The Seller has no knowledge of any action, omission,
misrepresentation, negligence or fraud which would result in the
failure of any such insurance policy. The related Mortgage Loan
Documents require the related Borrower or a tenant of such Borrower to
maintain each such insurance policy at its expense, but authorizes the
mortgagee to maintain any such insurance policy at the related
Borrower's expense upon such Borrower's or such tenant's failure to do
so (subject to any applicable notice or cure periods). The related
Mortgage and insurance policy require that any related insurance
proceeds, in excess of a specified amount, will be applied either to
the repair or restoration of all or part of the related Mortgaged
Property or to the payment of the outstanding principal balance of or
accrued interest on such Mortgage Loan.
(xxv) UCC Financing Statements. One or more
Uniform Commercial Code financing statements covering all furniture,
fixtures, equipment and other personal property (A) which are
collateral under the related Mortgage or under a security or similar
agreement executed and delivered in connection with such Mortgage Loan,
and (B) in which a security interest can be perfected by the filing of
Uniform Commercial Code financing statement(s) under applicable law
have been filed or recorded (or have been sent for filing or recording)
wherever necessary to perfect under applicable law a security interest
in such furniture, fixtures, equipment and other personal property
(including rights under leases and all agreements affecting the use,
enjoyment or occupancy of all or any part of the Mortgaged Property and
hotel room revenues).
(xxvi) Default, Breach and Acceleration. There is no
material default, breach, violation or event of acceleration existing
under the related loan agreement, related Note or the related Mortgage.
The Seller has no knowledge of any event (other than failure to make
payments due but not yet delinquent) which, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of acceleration
thereunder. The Seller has no knowledge that the related Borrower is a
debtor in any state or federal bankruptcy or insolvency proceeding.
(xxvii) Customary Provisions. The related Note and
the related Mortgage, together with applicable state law, contain
customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the related Mortgaged Property of the benefits of the security,
including, but not limited to, judicial or, if applicable, non-judicial
foreclosure.
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(xxviii) Access Routes. (A) Surveys, title insurance
reports, the title insurance policy or other relevant documents
contained in the related Mortgage File indicate that at the time of
origination of such Mortgage Loan the related Borrower had sufficient
rights with respect to amenities, ingress and egress and similar
matters identified in the appraisal of the related Mortgaged Property
as being critical to the Appraised Value thereof, and (B) such
Mortgaged Property was receiving services from public or private water,
sewer and other utilities that were adequate as of the date that the
Mortgage Loan was originated, and none of such services is subject to
revocation as a result of a foreclosure or change in ownership of an
adjacent property.
(xxix) Mortgage Loans Secured by Ground Lease but Not
Fee Interest. With respect to each Mortgage Loan that is secured in
whole or in part by the interest of the related Borrower as lessee
under a ground lease of all or a portion of the related Mortgaged
Property (a "Ground Lease"), but the related fee interest in the
portion of such Mortgaged Property covered by such Ground Lease (the
"Fee Interest") is not subject or subordinate to the lien of the
related Mortgage, the Seller hereby represents and warrants that:
(A) as of the date of the closing of
such Mortgage Loan, such Ground Lease is in full force and
effect, and such Ground Lease or a memorandum thereof has been
duly recorded in the applicable real estate records and (1)
such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor)
does not prohibit the interest of the related lessee
thereunder from being encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property of
such lessee in a manner that would interfere with the related
Borrower's ability to make required principal and interest
payments or to make use of such Mortgaged Property for the
intended purposes, or a separate written agreement permitting
such encumbrance has been obtained, and (2) there have been no
material changes in the terms of such Ground Lease that would
be binding on the mortgagee as successor to the lessee except
as set forth in written instruments which are part of the
related Mortgage File;
(B) based on the related policy of
title insurance, the related lessee's leasehold interest in
the portion of the related Mortgaged Property covered by such
Ground Lease is not subject to any liens or encumbrances
securing indebtedness which are superior to, or of equal
priority with, the related Mortgage, except for liens of
current real estate taxes and special assessments not yet
delinquent or accruing interest or penalties;
(C) the related lessee's interest in
such Ground Lease may be transferred to the Purchaser and its
successors and assigns through a foreclosure of the related
Mortgage or conveyance in lieu of foreclosure and, thereafter,
may be transferred to another Person by the related mortgagee
and its successors and assigns, upon notice to, but without
the consent of, the related lessor (or, if any such consent is
required, either (1) it has been obtained prior to the Closing
Date,
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or (2) it may not be unreasonably withheld) provided that such
Ground Lease has not been terminated and all amounts owed
thereunder have been paid;
(D) the related lessor is required to
give notice of any default under such Ground Lease by the
related lessee to the mortgagee either under the terms of such
Ground Lease or under the terms of a separate estoppel letter
or written agreement;
(E) the related mortgagee is entitled,
under the terms of such Ground Lease or a separate estoppel
letter or written agreement, to receive notice of any default
by the related lessee under such Ground Lease, and after any
such notice, is entitled to not less than the time provided to
the related lessee under such Ground Lease to cure such
default, which is curable during such period before the lessor
may terminate the Ground Lease; all rights of the related
lessee under the Ground Lease may be exercised by or on behalf
of the mortgagee;
(F) the currently effective term of
such Ground Lease (excluding any extension or renewal which is
not binding on the lessor thereunder) extends not less than 10
years beyond the Maturity Date of such Mortgage Loan;
(G) such Ground Lease does not impose
any restrictions on subletting which the Seller considered to
be commercially unreasonable at the time of its origination or
purchase of such Mortgage Loan or that a prudent commercial
mortgage lender would have considered unreasonable at such
date;
(H) to the Seller's knowledge as of
the Closing Date, (1) no event of default has occurred under
such Ground Lease and (2) no event has occurred which, with
the passage of time, the giving of notice or both (other than
rental or other payments being due, but not yet delinquent),
would result in a default or an event of default under the
terms of such Ground Lease;
(I) the related lessor has agreed in a
writing included in the related Mortgage File that such Ground
Lease may not be amended, modified, cancelled or terminated
without the prior written consent of the Seller or the
mortgagee and that any such action without such consent is not
binding upon the mortgagee, its successors and assigns. Unless
the mortgagee fails to cure a default of the lessee under the
Ground Lease following notice thereof from the lessor as set
forth in (E) above, the lessor is required to enter into a new
ground lease upon termination of such Ground Lease for any
reason (including, without limitation, rejection of such
Ground Lease in a bankruptcy proceeding);
(J) under the terms of such Ground
Lease and the related Mortgage, taken together, any related
insurance proceeds or condemnation award (other than in
respect of a total or substantially total loss or taking) will
be applied either to (1) the repair or restoration of all or
part of the related Mortgaged
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Property covered by such Ground Lease, with the mortgagee or a
trustee appointed by it having the right to hold and disburse
such proceeds as such repair or restoration progresses (except
where such Mortgage Loan provides that the related Borrower or
its agent may hold and disburse such proceeds with respect to
any loss or taking less than a stipulated amount not greater
than $50,000), or (2) the payment of the outstanding principal
balance of and accrued interest on such Mortgage Loan; and
(K) there are no existing mortgages on
the Fee Interest which can be foreclosed upon that are not
subject to the Ground Lease, and the provisions of the Ground
Lease and/or other documents related thereto and included as
part of the related Mortgage File preclude the creation of any
future mortgage on the Fee Interest that can be foreclosed
upon not subject to the Ground Lease.
(xxx) Deed of Trust. With respect to any related
Mortgage that is a deed of trust or trust deed, a trustee, duly
qualified under applicable law to serve as such, has either been
properly designated and currently so serves or may be substituted in
accordance with applicable law. Except in connection with (A) a
trustee's sale after default by the related Borrower or (B) the release
of the related Mortgaged Property following the payment of the related
Mortgage Loan in full, no fees or expenses are payable by the Seller or
the Purchaser to such trustee.
(xxxi) Cross-Security. The related Mortgaged Property
is not collateral or security for the payment or performance of (A) any
other obligations owed to the originator of such Mortgage Loan or the
Seller other than another Mortgage Loan being sold, transferred and
assigned by the Seller under this Agreement, or (B) to the Seller's
knowledge, any other obligations owed to any Person other than the
Seller. The related Note is not secured by any property other than a
Mortgaged Property.
(xxxii) Assignment of Leases, Rents and Profits.
Unless the related Mortgaged Property is occupied by the related
Borrower, the related Mortgage Loan Documents contain the provisions of
an Assignment of Leases, Rents and Profits or include a separate
Assignment of Leases, Rents and Profits or assignment of Assignment of
Leases, Rents and Profits. Any related Assignment of Leases, Rents and
Profits incorporated within the related Mortgage or set forth in a
separate Mortgage Loan Document creates on recordation (with the same
priority as the related Mortgage) a valid assignment of, or security
interest in, the right to receive all payments due under the related
leases, if any.
(xxxiii) REMIC. (A) Such Mortgage Loan is principally
secured by an interest in real property and either (1) the fair market
value of such real property was at least equal to 80% of the adjusted
issue price of such Mortgage Loan on the date of origination of such
Mortgage Loan or, if such Mortgage Loan has been "significantly
modified" within the meaning of Section 1001 of the Code, on the date
of such modification (unless such modification may be disregarded under
Treas. Reg. Sec.
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1.860G-2(b)(3)), or (2) substantially all of the proceeds of such
Mortgage Loan were used to acquire or improve or protect an interest in
real property that, at origination of such Mortgage Loan, was the only
security for such Mortgage Loan; (B) such Mortgage Loan contains no
equity participation by the Seller, and neither the related Note nor
the related Mortgage provides for any contingent or additional interest
in the form of participation in the cash flow or proceeds realized on
disposition of the related Mortgaged Property; and (C) such Mortgage
Loan is a "qualified mortgage" as defined in, and for purposes of,
Section 860G(3)(A) of the Code and provides for the payments of
interest at a fixed rate or at a rate described in Treas. Reg. Sec.
1.860G-1(a)(3).
(xxxiv) Environmental Site Assessments. Environmental
Site Assessments (collectively, the "ESAs"), transaction screen
assessments, studies or updates prepared or obtained in connection with
the origination of such Mortgage Loan identified no material adverse
environmental conditions or circumstances anticipated to require any
material expenditure with respect to any Mortgaged Property, except
for: (A) those cases where such conditions or circumstances were
investigated further and, based upon such additional investigation, a
qualified environmental consultant recommended no further investigation
or remediation; (B) those cases in which an operations and maintenance
plan was recommended by the environmental consultant and such plan was
obtained or an escrow reserve established to cover the estimated costs
of obtaining such plan; (C) those conditions in which soil or
groundwater contamination was suspected or identified and either (1)
such condition or circumstance was remediated or abated prior to the
date of closing of the related Mortgage Loan, (2) a "no further action"
letter was obtained from the applicable regulatory authority, or (3)
either an environmental insurance policy was obtained, a letter of
credit provided, an escrow reserve account established, or an indemnity
from the responsible party was obtained, to cover the estimated costs
of any required investigation, testing, monitoring or remediation; or
(D) those cases in which (1) a leaking underground storage tank or
groundwater contamination was identified to be located on or to have
originated from an offsite property, (2) a responsible party has been
identified under applicable law, and (3) either such condition is not
known to have affected the Mortgaged Property or the responsible party
has either received a "no further action" letter from the applicable
regulatory agency, established a remediation fund, or provided a
guaranty or indemnity to the related Borrower.
(xxxv) Notice of Environmental Problem. Other than
with respect to any conditions identified in the ESAs, transaction
screen assessments, studies or updates referred to in Section
2(b)(xxxiv) above, the Seller: (A) has not received actual notice from
any federal, state or other governmental authority of (1) any failure
of the related Mortgaged Property to comply with any applicable
Environmental Laws, or (2) any known or threatened release of Hazardous
Materials on or from such Mortgaged Property in violation of any
applicable Environmental Laws; (B) has not received actual notice from
the related Borrower that (1) such Borrower has received any such
notice from any such governmental authority, (2) such Mortgaged
Property fails to comply with any applicable Environmental Laws, or (3)
such Borrower has received actual notice that there is any known or
threatened release of Hazardous Materials on or from such Mortgaged
Property in violation of any applicable Environmental Laws; or (C) has
no
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actual knowledge that (1) the related Mortgaged Property fails to
materially comply with any applicable Environmental Laws or (2) there
has been any known or threatened release of Hazardous Materials on or
from such Mortgaged Property where such release falls outside the
exceptions (A) through (D) of Section 2(b)(xxxiv) above.
(xxxvi) Recourse. The related Mortgage Loan Documents
contain standard provisions providing for recourse against the related
Borrower or a principal of such Borrower for damages sustained in
connection with the Borrower's fraud, material misrepresentation or
misappropriation of any tenant security deposits, rent, insurance
proceeds or condemnation proceeds. The related Mortgage Loan Documents
contain provisions pursuant to which the related Borrower or a
principal of such Borrower has agreed to indemnify the mortgagee for
damages resulting from violations of any applicable Environmental Laws.
(xxxvii) Environmental Compliance. Each Mortgage
Loan contains either a representation, warranty or covenant that the
related Borrower will not use, cause or permit to exist on the related
Mortgaged Property any Hazardous Materials in violation of any
applicable Environmental Laws or an indemnity with respect to any such
violation in favor of the Seller.
(xxxviii) Inspection The Seller or originator has
inspected the related Mortgaged Property or caused such Mortgaged
Property to be inspected within the 12 months preceding the Closing
Date.
(xxxix) Subordinate Debt. Except as has been
disclosed in the Mortgage Loan Characteristics Schedule, the related
Mortgage contains a provision for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan in the event that
the related Borrower encumbers the related Mortgaged Property without
the prior written consent of the mortgagee thereunder.
(xl) Common Ownership. To Seller's knowledge,
no two properties securing Mortgage Loans are directly or indirectly
under common ownership except to the extent that such common ownership
and the ownership structure have been specifically disclosed in the
Mortgage Loan Characteristics Schedule and Annex A and Annex C to the
Prospectus Supplement.
(xli) Operating or Financial Statement. The
related Mortgage Loan Documents require the related Borrower to furnish
to the mortgagee at least annually an operating statement with respect
to the related Mortgaged Property or, in the case of a
borrower-occupied Mortgaged Property, a financial statement with
respect to the related Borrower.
(xlii) Litigation. To the best of the Seller's
knowledge as of the date of origination or purchase of such Mortgage
Loan, and to the Seller's knowledge thereafter, there is no pending
action, suit, proceeding, arbitration or governmental investigation
with respect to the related Borrower or Mortgaged Property which if
determined
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adversely to the related Borrower would have a material adverse effect
on the value of the related Mortgaged Property or such Borrower's
ability to continue to perform its obligations under such Mortgage
Loan.
(xliii) Assisted Living Loans and Nursing Home Loans.
If the Mortgage Loan is secured in whole or in part by a Mortgage on a
Mortgaged Property operated as a Facility, based upon due diligence
performed in the origination of the related Mortgage Loan, and to its
knowledge as of the date hereof:
(A) All governmental licenses,
permits, regulatory agreements or other approvals or
agreements necessary or desirable for the use and operation of
the Facility as intended, including, without limitation, a
valid certificate of need or similar certificate, license, or
approval issued by the applicable department of health for the
requisite number of beds, and approved provider status in any
approved provider payment program, were, as of the related
date of origination, held by the related Mortgagor or the
operator of the Facility and were in full force and effect;
and
(B) In connection with the most recent
governmental inspection of the Facility (a) the Facility had
not received a "Level A" (or equivalent) violation that has
not been cured to the satisfaction of the applicable
governmental agency, (b) no statement of charges or
deficiencies had been made or penalty enforcement action has
been undertaken against the Facility, its operator or the
Mortgagor or against any officer, director or stockholder of
such operator or the Mortgagor by such governmental agency,
(c) there were no violations that threatened the Facility's,
the operator's or the Mortgagor's certification for
participation in Medicare or Medicaid or any other third-party
payor program, (d) to the Seller's knowledge, the Mortgagor
and Facility comply with all federal, state and local laws,
regulations, quality and safety standards, accreditation
standards and requirements of the applicable state department
of health and (e) there was no threatened or pending
revocation, suspension, termination, probation, restriction,
limitation, or nonrenewal affecting the Mortgagor, such
operator or the Facility or any participation or provider
agreement with any third-party payor to which the Mortgagor or
such operator is subject.
(xliv) ARD Loans. With respect to each Mortgage Loan
that is an ARD Loan, it commenced amortizing on its initial scheduled
Due Date (or, in the case of certain interest-only Mortgage Loans, as
otherwise set forth in the related Notes) and provides that: (A) the
spread used in calculating its Mortgage Rate will increase by no more
than five percent (5%) in connection with the passage of its
Anticipated Repayment Date; (B) its Anticipated Repayment Date is of
the term specified in the Mortgage Loan Characteristics Schedule and
the Additional Loan Characteristics Schedule following the origination
of such Mortgage Loan; (C) no later than the related Anticipated
Repayment Date, if it has not previously done so, the related Borrower
is required to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the Servicer; and (D) any cash
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flow from the related Mortgaged Property that is applied to amortize
such Mortgage Loan following its Anticipated Repayment Date shall, to
the extent such net cash flow is in excess of the Monthly Payment
payable therefrom, be net of budgeted and discretionary (Servicer
approved) capital expenditures.
(xlv) Due-on-Sale. The related Mortgage contains
a "due-on-sale" clause that provides for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if,
without the prior written consent of the mortgagee, the related
Mortgaged Property subject to such Mortgage is directly or indirectly
transferred or sold; provided that certain of the Mortgages permit (A)
changes in ownership between existing partners and members, (B)
transfers to family members (or trusts for the benefit of family
members), affiliated companies and certain specified individuals and
entities, (C) issuance by the related borrower of new partnership or
membership interests, (D) certain other changes in ownership for estate
planning purposes, or (E) certain other transfers similar in nature to
the foregoing.
(xlvi) Loan Origination; Loan Underwriting. Each
Mortgage Loan was originated by the related Mortgage Loan Seller, an
affiliate of the related Mortgage Loan Seller or an originator approved
by the related Mortgage Loan Seller, or was purchased by the related
Mortgage Loan Seller, and each Mortgage Loan substantially complied
with all of the terms, conditions and requirements of the related
Seller's underwriting standards in effect at the time of its
origination or purchase of such Mortgage Loan, subject to such
exceptions as the related Mortgage Loan Seller approved.
(c) Each representation and warranty of the Seller set
forth in Section 2(a) or 2(b) of this Agreement, to the extent related to the
enforceability of any instrument, agreement or other document or as to offsets,
defenses, counterclaims or rights of rescission related to such enforceability
is qualified to the extent that (i) enforcement may be limited (A) by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, (B) by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and (C) by any applicable anti-deficiency law or statute; and (ii)
such instrument, agreement or other document may contain certain provisions
which may be unenforceable in accordance with their terms, in whole or in part,
but the unenforceability of such provisions will not (subject to the
qualification in clause (i), above) (A) cause the related Note or the related
Mortgage to be void, (B) invalidate the related Borrower's obligation to pay
interest at the stated interest rate of such Note on, and repay the principal
of, the related Mortgage Loan in accordance with the payment terms of such Note,
such Mortgage and other written agreements delivered to the Seller in connection
therewith, (C) invalidate the obligation of any related guarantor to pay
guaranteed obligations with respect to interest at the stated interest rate of
such Note on, and the principal of, such Mortgage Loan in accordance with the
payment terms of such guarantor's written guaranty, (D) impair the mortgagee's
right to accelerate and demand payment of interest at the stated interest rate
of such Note on, and principal of, such Mortgage Loan upon the occurrence of a
legally enforceable default, or (E) impair the mortgagee's right to realize
against the related Mortgaged Property by judicial or, if applicable,
non-judicial foreclosure.
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(d) The Seller agrees that it shall, at the request of
the Purchaser in connection with the consummation of the Securitization
Transaction, deliver to the Purchaser (i) certified copies of the charter,
by-laws and a certificate of good standing dated as of a recent date of the
Seller and (ii) an officer's certificate of the Seller to the effect that each
of the representations and warranties of the Seller contained in Section 2 of
this Agreement is true and correct in all material respects as of the Closing
Date, except to the extent that such representation and warranty specifically
relates to an earlier date, in which case such representation was true and
correct in all material respects as of such earlier date.
(e) The Purchaser hereby represents and warrants to the
Seller as of the Closing Date that:
(i) Due Organization; Qualification. It is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, and is in compliance with the laws
of each State in which any Mortgaged Property is located to the extent
necessary to perform its duties and obligations under this Agreement.
(ii) Authority. It has the full power,
authority and legal right to execute and deliver this Agreement (and
all agreements executed and delivered by it in connection herewith) and
to perform all transactions contemplated by this Agreement (and all
agreements executed and delivered by it in connection herewith). It has
duly authorized the execution, delivery and performance of this
Agreement (and all agreements executed and delivered by it in
connection herewith), and has duly executed and delivered this
Agreement (and all agreements executed and delivered by it in
connection herewith). This Agreement (and each agreement executed and
delivered by it in connection herewith), assuming due authorization,
execution and delivery by each other party hereto (and thereto),
constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally, by general principles
of equity and by any applicable anti-deficiency laws (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
(iii) Solvency. It is solvent and the execution,
delivery and performance of this Agreement (A) will not cause it to
become insolvent, and (B) is not intended by it to hinder, delay or
defraud any of its creditors.
3. Remedies for Breach of Certain Representations and
Warranties.
(a) It is understood and agreed that the representations and
warranties set forth in this Agreement or contained in the certificates of
officers of the Seller or the Purchaser submitted pursuant hereto shall survive
the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit
of the Purchaser and the Trustee (for the benefit of the Certificateholders) as
the transferee of the Purchaser, notwithstanding (i) any restrictive or
qualified endorsement on any Note, Assignment of Mortgage, Assignment of Leases,
Rents and Profits or reassignment of
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Assignment of Leases, Rents and Profits, (ii) any termination of this Agreement,
or (iii) the examination by any Person of, or failure by any Person to examine,
any Mortgage File.
(b) Upon the discovery by the Seller or the Purchaser
that (i) a document required to be delivered pursuant to Section 1(c) of this
Agreement in connection with any Mortgage Loan has not been executed or received
or has not been recorded or filed (if required) within the time required for
delivery of such document, appears not to be what it purports to be or has been
torn, mutilated or otherwise defaced (such Mortgage Loan, a "Defective Document
Mortgage Loan") or (ii) a breach of any of the foregoing representations and
warranties set forth in Section 2(b) or a default in the performance of any of
the covenants or other obligations of the Seller under this Agreement has
occurred (a "Breach") which, in the case of either clause (i) or (ii),
materially and adversely affects the interest of the owners of one or more
Mortgage Loans, who may include Certificateholders, the party discovering (x)
that a Mortgage Loan is a Defective Document Mortgage Loan, or (y) the existence
of a Breach (any such Mortgage Loan as described in the preceding clause (x) or
so affected by a Breach as described in preceding clause (y), a "Defective
Mortgage Loan") shall give prompt written notice thereof to the other party and
to each Rating Agency. Within 85 days of its discovery or its receipt of notice
of any such Defective Mortgage Loan (including such notice given by the
Purchaser, the Trustee, the Servicer or any special servicer or custodian for
the Mortgage Loans), the Seller shall (i) promptly cure such defect or Breach in
all material respects, or (ii) repurchase the Defective Mortgage Loan or Loans
at the Repurchase Price for such Mortgage Loan or Loans in accordance with the
directions of the owners of such Defective Mortgage Loans; provided, however, if
such defect or Breach cannot be cured within such 85-day period, so long as the
Seller shall be actively and diligently attempting to cure such defect or
Breach, such 85-day period shall be extended for a reasonable period of time in
which to effect such cure, but in any event to a date not more than 180 days
from the earlier of the date of Seller's discovery or its receipt of notice of
any Defective Mortgage Loan, provided such Defective Mortgage Loan is
susceptible to such cure within such period of time; provided, further that no
such extension shall be applicable unless the Seller delivers to the Purchaser
(or its successor in interest) an officer's certificate describing the measures
being taken to cure such defect or Breach, stating that the Seller believes such
defect or Breach will be cured within such period. If any Mortgage Loan fails to
constitute a Qualified Mortgage by reason of defective or missing documentation
as described above or a breach of a representation, warranty, or covenant of the
Seller pursuant to this Agreement, the Seller shall correct such condition,
defect or breach or repurchase such Mortgage Loan at the Repurchase Price within
85 days of discovery of such failure and no extension of the 85-day period shall
apply. The Repurchase Price with respect to any Mortgage Loans repurchased by
the Seller shall be paid in accordance with the Pooling and Servicing Agreement.
It is understood and agreed that the obligations of the Seller set forth in this
Section 3(b) to cure or repurchase a Defective Mortgage Loan constitute the sole
remedies available to the Purchaser and its successors and assigns respecting a
breach of the representations and warranties of the Seller set forth in Section
2(b).
Upon any such repurchase of a Mortgage Loan by the Seller, the
Purchaser shall execute and deliver, or shall cause the owner of such Mortgage
Loan to execute and deliver, such instruments of sale, transfer or assignment
presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
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Mortgage Loan (including any property acquired in respect thereof or proceeds of
any insurance policy with respect thereto), and shall deliver, or shall cause
such owner to deliver, the related Mortgage File to the Seller or its designee
after receipt of the related Repurchase Price.
(c) Except as expressly set forth in Section 3(b), no
provision of this Agreement shall be interpreted as limiting (or otherwise be
deemed to limit) the right of the Purchaser, its successors or assigns to pursue
any remedies it may have under this Agreement, in equity or at law, in
connection with any breach by the Seller of any term hereof.
(d) The Seller hereby acknowledges the assignment by
the Purchaser to the Trustee, in its capacity as a trustee under the Pooling and
Servicing Agreement for the benefit of the Certificateholders, of the
representations and warranties contained in this Agreement and of the obligation
of the Seller to cure or repurchase any Defective Mortgage Loans pursuant to
this Section 3. The Trustee or its designee may enforce such obligation as
provided in Section 10 hereof.
4. Provision of Information. The Seller shall make
available to the Purchaser or its designees all relevant information reasonably
available to the Seller concerning the Mortgage Loans, the related Mortgaged
Properties and the related Borrowers and the Seller's business, properties and
operations, as the Purchaser may, in its sole discretion reasonably exercised,
determine is necessary in the marketing of the Certificates(including the
compliance with federal securities laws or state "Blue Sky" laws) (such
information shall be referred to as the "Requested Disclosure Information");
provided, however, that it is understood and agreed that the Requested
Disclosure Information shall not include information as of any date after the
Closing Date. As of the date such Requested Disclosure Information was made
available to the Purchaser or its designees, such Requested Disclosure
Information did not contain any untrue statement by the Seller or any Affiliate
thereof of any material fact or any omission of the Seller or any Affiliate
thereof of any information with respect to any Mortgage Loan, the related
Mortgaged Property or the related Borrower (or the Seller's business, properties
and operations) that is necessary to make such statements with respect to such
Mortgage Loan, the related Mortgaged Property or the related Borrower (or the
Seller's business, properties and operations), taken by themselves and only in
the context of the sale of the Mortgage Loans to the Purchaser, not misleading.
The Seller will, at such time upon making available such Requested Disclosure
Information, be deemed to represent that it does not know or have any reason to
know that the Requested Disclosure Information contains any untrue statement of
any material fact or any omission of the Seller or any Affiliate thereof of any
information with respect to any Mortgage Loan, the related Mortgaged Property or
the related Borrower (or the Seller's business, properties and operations) that
is necessary to make such statements with respect to such Mortgage Loan, the
related Mortgaged Property or the related Borrower (or the Seller's business,
properties and operations), taken by themselves and only in the context of the
sale of the Mortgage Loans to the Purchaser, not misleading. The Seller agrees
that so long as any Underwriter is required by applicable laws to deliver a
prospectus in connection with any sale of the Certificates, the Seller shall
notify the Purchaser or its designee immediately if any event shall occur or
condition shall exist as a result of which any of the Requested Disclosure
Information contains an untrue statement of a material fact or any omission of
any material fact by the Seller or any Affiliate thereof of any information with
respect to any Mortgage Loan, the related Mortgaged Property or
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the related Borrower (or the Seller's business, properties and operations) that
is necessary to make the statements by Seller or any Affiliate with respect to
such Mortgage Loan, the related Mortgaged Property or the related Borrower (or
the Seller's business, properties and operations), taken by themselves and only
in the context of the sale of the Mortgage Loans to the Purchaser, not
misleading. The Seller understands that the Purchaser or its designee will use
the Requested Disclosure Information in preparing the Registration Statement
(including, insofar as they are required to be filed as part of the Registration
Statement, any Computational Materials), the Prospectus Supplement, the Private
Placement Memorandum and to otherwise sell the Certificates, and that the
Purchaser or its designee shall be entitled to rely on the true, correct and
complete nature of the Requested Disclosure Information and shall have no
obligation to independently verify any of such information furnished or to be
furnished by the Seller hereunder, provided that the Purchaser or its designee
has previously provided a copy of each of the documents referred to above in
this sentence to the Seller for the Seller's review and approval; and provided,
further, that the Seller shall not be required to provide information that
specifically relates to facts existing or events first occurring from and after
the Closing Date.
5. Indemnification.
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(a) The Seller shall indemnify and hold harmless the
Purchaser, each Affiliate thereof, each Underwriter, each Placement Agent and
their respective officers and directors, and each person, if any, who "controls"
the Purchaser, any Underwriter or any Placement Agent, within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (collectively, for purposes hereof, the
"Indemnified Parties") against any and all losses, claims, damages, liabilities
or expenses (including, without limitation, the reasonable cost of investigating
and defending against any claims therefor and legal fees and disbursements
incurred in connection therewith except as otherwise provided below), joint or
several, which may be based upon the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law, by contractual
arrangement or otherwise, insofar as such losses, claims, damages, liabilities
or expenses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Prospectus Supplement, the Private Placement Memorandum or, insofar as they are
required to be filed as part of the Registration Statement, any Computational
Materials with respect to the Publicly Offered Certificates, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission (in the case of any Computational Materials, when read in
conjunction with the Prospectus and, in the case of the Private Placement
Memorandum, when read together with the other information specified therein as
being available for review by investors) to state therein a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, but only if and to the extent that
such untrue statement, alleged untrue statement, omission or alleged omission
was made in reliance upon (i) any Requested Disclosure Information furnished to
the Purchaser or its designee or any Underwriter or Placement Agent, directly or
indirectly, by the Seller or approved by the Seller and used in connection with
the preparation of the Prospectus Supplement, the Private Placement Memorandum
or any Computational Materials or (ii) any representations, warranties,
statements or covenants of the Seller contained in this Agreement or any
document or certificate delivered pursuant hereto (the foregoing items (i) and
(ii), collectively, the "Seller's Information"). This indemnity agreement will
be in addition to any liability the Seller may otherwise have.
In no case shall the Seller be liable with respect to any
claims made against any of the Indemnified Parties unless an Indemnified Party
shall have notified the Seller in writing of the nature of the claim within a
reasonable time after service of a summons or other first legal process that
shall have been served upon such Indemnified Party, but failure to notify the
Seller of any such claims shall not relieve the Seller from any liability which
it may have to any Indemnified Party otherwise than on account of the indemnity
agreement contained in this Section 5(a). The Seller will be entitled to
participate at its own expense in the defense or, if it so elects promptly after
receiving such notice from any Indemnified Party, to assume the defense of any
suit brought to enforce any such liability with legal counsel chosen by the
Seller and reasonably acceptable to the Indemnified Parties. In the event the
Seller elects to assume the defense of any such suit and retain such legal
counsel, any Indemnified Party that is a defendant in the suit may retain
additional legal counsel but shall bear the legal fees and disbursements of such
legal counsel unless (i) the Seller and such Indemnified Party shall have
mutually agreed to the retention of such legal counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include the Seller and
such Indemnified Party, and representation of both such
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parties by the same legal counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the Seller
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the legal fees and disbursements of more than one
legal counsel (in addition to any local counsel necessary to the conduct of
defense in such proceeding or proceedings) for all the Indemnified Parties and
that all such legal fees and disbursements shall be reimbursed by the Seller as
they are incurred. The Seller shall not be liable to indemnify any person for
any settlement of any claim effected without the Seller's consent, provided that
if any claim is settled with such consent or if there is a final judgment
against any Indemnified Party, the Seller agrees to indemnify the Indemnified
Parties from and against any losses, claims, damages, liabilities or expenses by
reason of such settlement or judgment. Notwithstanding the immediately preceding
sentence, if at any time an Indemnified Party shall have requested the Seller to
reimburse the Indemnified Party for fees and expenses of counsel retained in
accordance with the fourth sentence of this paragraph, the Seller agrees that it
shall be liable for any settlement of any claim effected without its consent if
(x) such settlement is entered into more than 60 days after the receipt by the
Seller of such request and (y) the Seller shall not have reimbursed such
Indemnified Party in accordance with such request prior to the date of such
settlement. The Seller shall not, without the prior written consent of any
Indemnified Party, effect any settlement of any pending or threatened proceeding
in respect of which such Indemnified Party is or could reasonably have been a
party and indemnity is or could have been sought hereunder by such Indemnified
Party unless such settlement includes an unconditional release of such
Indemnified Party from all liability relating to the claims that are the subject
matter of such proceeding.
(b) If the indemnification provided for in Section 5(a) above
is unavailable or insufficient to hold harmless an Indemnified Party in respect
of any losses, claims, damages, liabilities or expenses (or actions in respect
thereof) referred to therein, then the Seller shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Seller on the
one hand and such Indemnified Party on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Seller or by such Indemnified Party and
such party's relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The parties hereto agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above. The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages, liabilities or
expenses (or actions in respect thereof) referred to above shall be deemed to
include any legal fees and disbursements or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
claim, except where such Indemnified Party is required to bear such expenses
pursuant to this Section 5, which expenses the Seller shall pay as and when
incurred, at the request of such Indemnified Party, to the extent that the
Seller will be ultimately obligated to pay such expenses. No person guilty of
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fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(c) The indemnity and contribution provided for in this
Section 5 shall remain operative and in full force and effect irrespective of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Purchaser or its designees, any Underwriter, any Placement Agent,
their respective officers and directors or any person who controls the Purchaser
or any Underwriter or Placement Agent, or by or on behalf of the Seller, its
directors and officers or any person who controls the Seller, or (iii) the
acceptance of and payment for any of the Certificates.
6. Opinion of Counsel. The Seller hereby covenants to
the Purchaser to deliver or cause to be delivered to the Purchaser in connection
with the Securitization Transaction (a) opinions of counsel for the Seller
(which may be rendered by the Seller's internal counsel) as to various corporate
matters in form satisfactory to the Purchaser and (b) opinions of counsel for
the Seller, in forms acceptable to the Purchaser, its counsel, any subsequent
purchaser of the Mortgage Loans or its counsel, and each Rating Agency, as to
such matters as shall be required for the assignment of ratings to the
Certificates or such other matters as reasonably requested by any subsequent
purchaser of the Mortgage Loans or its counsel or any Rating Agency (including,
without limitation, a "true sale" opinion) (it being agreed that such opinions
or appropriate reliance letters shall expressly provide that each Rating Agency,
each Placement Agent, each Underwriter, the Trustee and any fiscal agent shall
be entitled to rely on such opinions).
7. Cooperation. The Seller hereby agrees to furnish
any and all information, documents, certificates, letters or opinions with
respect to the Mortgage Loans reasonably requested by the Purchaser in order for
the Purchaser to perform any of its obligations or satisfy any of the conditions
on its part to be performed or satisfied pursuant to this Agreement or the
transactions contemplated by the Pooling and Servicing Agreement. The Seller
further agrees that, at the request of the Purchaser, the Seller shall use all
commercially reasonable efforts to obtain from the Borrowers of the Mortgage
Loans such current financial statements and other information as the Purchaser,
the Depositor or any Rating Agency may reasonably request in connection with the
transactions contemplated by this Agreement or the Pooling and Servicing
Agreement.
8. Costs and Expenses. The Seller agrees to pay to the
Purchaser its share (based on the ratio of the aggregate principal amount of the
Seller's Mortgage Loans to the aggregate principal amount of all Mortgage Loans
in the Securitization Transaction) of the transaction costs and expenses
incurred by the Purchaser with respect to the Securitization Transaction in
accordance with the Loan Seller Agreement.
9. Notices. All communications hereunder shall be in
writing and effective only upon receipt and, if sent to the Seller, will be
mailed, delivered or transmitted by facsimile and confirmed to it at the
following:
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Clay Lebhar John Mulligan
Investment Banking Commercial Mortgage
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza, 18th Floor One New York Plaza, 15th Floor
New York, New York 10292-2018 New York, New York 10292-2015
Telecopy No.: (212) 778-5099 Telecopy No.: (212) 778-1905
David Rodgers Fred Robustelli, Esq.
Investment Banking Law Department
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza, 18th Floor One New York Plaza, 30th Floor
New York, New York 10292-2018 New York, New York 10292
Telecopy No.: (212) 778-5099 Telecopy No.: (212) 214-7938
If sent to the Purchaser, will be mailed, delivered or transmitted by facsimile
and confirmed to it at the following:
Peter Riemenschneider John Mulligan
Investment Banking Commercial Mortgage
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza, 18th Floor One New York Plaza, 15th Floor
New York, New York 10292-2018 New York, New York 10292-2015
Telecopy No.: (212) 778-5099 Telecopy No.: (212) 778-1905
David Rodgers Fred Robustelli, Esq.
Investment Banking Law Department
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza, 18th Floor One New York Plaza, 30th Floor
New York, New York 10292-2018 New York, New York 10292
Telecopy No.: (212) 778-5099 Telecopy No.: (212) 214-7938
If sent to the Rating Agencies, will be mailed, delivered or transmitted by
facsimile and confirmed to the respective Rating Agency at the following:
Joan Biro Nicholas Levidy
Standard & Poors Moody's Investors Service, Inc.
26 Broadway 99 Church Street
New York, New York 10003 New York, New York 10007
Telecopy No.: (212) 412-0539 Telecopy No.: (212) 553-1350
or such other address as may hereafter be furnished to or by the other party or
any Rating Agency by like notice.
10. Trustee as Beneficiary. The representations,
warranties and agreements made by the Seller in this Agreement are made for the
benefit of the Depositor, the Trustee and the Certificateholders and may be
enforced by the Depositor and the Trustee to the same extent
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that the Purchaser has rights against the Seller under this Agreement in respect
of the representations, warranties and agreements made by the Seller herein, and
all such representations and warranties shall survive delivery of the respective
Mortgage Loan Documents to any subsequent purchaser and to the Trustee and to
the Servicer.
11. Successors and Assigns. This Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder, other than as otherwise expressly provided herein.
12. Governing Law. This Agreement will be governed by
and construed in accordance with the substantive laws of the State of New York
(without regard to conflicts of laws principles), and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
13. Miscellaneous.
(a) Subject to Section 13(b) hereof, neither this
Agreement nor any term hereof may be amended, modified, waived, discharged or
terminated except by a writing signed by the party against whom enforcement of
such amendment, modification, waiver, discharge or termination is sought.
(b) In the event the Underwriting Agreement is
terminated pursuant to a failure of a condition precedent set forth therein,
this Agreement shall automatically terminate, and thereafter no party to this
Agreement shall have any further rights or obligations hereunder other than
pursuant to any provision which expressly provides that it survives the
termination of this Agreement.
(c) Subsequent to any Securitization Transaction, this
Agreement shall not be changed in any manner which would have a material adverse
effect on the Certificateholders without the prior written consent of the
Trustee. Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely conclusively upon an opinion of counsel at
the expense of the party requesting such amendment stating that the execution of
such amendment is authorized or permitted by this Agreement. The Trustee may,
but shall not be obligated to, consent to any amendment which affects the
Trustee's own rights, duties or immunities under this Agreement.
(d) This Agreement may be executed in any number of
counterparts, each of which shall, for all purposes, be deemed to be an original
and all of which shall together constitute but one and the same instrument.
(e) If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then, to the extent permitted by applicable law, 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.
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(f) This Agreement supersedes all prior or
contemporaneous agreements and understandings relating to the subject matter
hereof.
(g) It is the express intent of the parties hereto that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. It is, further, not the intention of the parties
that such conveyance be deemed a pledge of the Mortgage Loans by the Seller to
secure a debt or other obligation of the Seller. However, in the event that,
notwithstanding the intent of the parties, the Mortgage Loans are held to
continue to be property of the Seller then (i) this Agreement shall also be
deemed to be a security agreement under applicable law; (ii) the transfer of the
Mortgage Loans provided for herein shall be deemed to be a grant by the Seller
to the Purchaser of a first priority security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans and all amounts payable
to the holder of the Mortgage Loans in accordance with the terms thereof and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property; (iii) the possession by the
Purchaser or any successor thereto of the related Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" for purposes of
perfecting the Purchaser's security interest pursuant to Section 9-305 of the
New York Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction; and (iv) notifications to Persons holding such
property, and acknowledgments, receipts or confirmations from Persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser or any successor thereto for the purpose of perfecting such
security interest under applicable law. Any assignment of the interest of the
Purchaser pursuant to any provision hereof shall also be deemed to be an
assignment of any security interest created hereby.
14. Third Party Beneficiary.
(a) The Underwriters and Placement Agents are intended third
party beneficiaries of the representations, warranties, covenants and
indemnities made by the Seller in Section 5 of this Agreement and, to the extent
they affect the rights of the Underwriters and Placement Agents as third party
beneficiaries under such Section 5, the covenants of the Seller made in the
other provisions of this Agreement. It is acknowledged that such
representations, warranties, covenants and indemnities of the Seller may be
enforced by the Underwriters and Placement Agents to the same extent as if they
were parties hereto.
(b) Each of the officers, directors, employees, controlling
persons and Affiliates of the Underwriters and Placement Agents is an intended
third party beneficiary of the representations, warranties, covenants and
indemnities of the Seller made in Section 5 of this Agreement and, to the extent
they affect the rights of such persons and entities as third party beneficiaries
under such Section 5, the covenants of the Seller made in the other provisions
of this Agreement. It is acknowledged that such representations, warranties,
covenants and indemnities of the Seller may be enforced by or on behalf of such
persons or entities against the Seller to the same extent as if any such person
or entity was a party hereto.
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[Signatures on Next Page]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
PRUDENTIAL SECURITIES CREDIT CORP.
By:
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Name:
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Title:
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PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By:
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Name:
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Title:
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1
<PAGE>
ANNEX A
MORTGAGE LOAN CHARACTERISTICS SCHEDULE
[See Attached Pages]
Annex A-1
<PAGE>
ANNEX B
CERTAIN DEFINED TERMS
"Additional Loan Characteristics Schedule": As defined in the
Recitals.
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled by" have meanings correlative to the foregoing.
"Agreement": As defined in the Preamble.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value of such Mortgaged Property as determined by an appraisal thereof
made not more than one year prior to the origination date of the related
Mortgage Loan and reviewed by the Seller.
"Assignment of Leases, Rents and Profits": With respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
agreement executed by the Borrower, assigning to the mortgagee all of the
income, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered by the Borrower, as amended,
modified, renewed or extended through the date hereof and from time to time
hereafter.
"Assignment of Mortgage": An assignment of mortgage without
recourse, notice of transfer or equivalent instrument, in recordable form, which
is sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording.
"Borrower": With respect to each Mortgage Loan, any obligor on
any related Note.
"Breach": As defined in Section 3(b).
"CERCLA": Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. ss.ss. 9601 et seq.).
"Certificateholders": As defined in the Recitals.
"Certificates": As defined in the Recitals.
"Closing Date.": As defined in Section 1(b).
Annex B-1
<PAGE>
"Commission": Securities and Exchange Commission.
"Computational Materials": As defined in the no-action letter
dated May 20, 1994, issued by the Division of Corporation Finance of the
Commission to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated and Kidder Structured Asset Corporation and the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Associates.
"Custodian": As defined in Section 1(d).
"Cut-off Date": As defined in Section 1(a).
"Defective Mortgage Loan": As defined in Section 3(b).
"Defective Document Mortgage Loan": As defined in Section 3(b).
"Depositor": As defined in the Recitals.
"Due Date": With respect to any Mortgage Loan, the date on
which scheduled payments are due on such Mortgage Loan (without regard to grace
periods), such day being for all Mortgage Loans the first day of each month.
"Environmental Law": Any environmental law, ordinance, rule,
regulation or order of a federal, state or local governmental authority,
including, without limitation, CERCLA, the Hazardous Material 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, as amended (42 U.S.C. ss.ss. 7401 et seq.) and the regulations promulgated
pursuant thereto.
"Environmental Report": With respect to each Mortgaged
Property, the environmental audit report or reports required in connection with
the origination of the related Mortgage Loan.
"Fee Interest": As defined in Section 2(b)(xxxi).
"Ground Lease": As defined in Section 2(b)(xxxi).
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA, or any other Environmental Laws now
existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum
and petroleum products, urea formaldehyde and any substances classified as being
"in inventory", "usable work in process" or similar classification which would,
if classified as unusable, be included in the foregoing definition.
"Indemnified Parties": As defined in Section 5(a).
Annex B-2
<PAGE>
"Legal Summary": With respect to any Mortgage Loan, the "Legal
Summary" prepared by the related Mortgage Loan Seller in connection with the
origination of such Mortgage Loan, substantially in the form of the sample Legal
Summary previously submitted to the Purchaser, with all blanks completed.
"Loan Agreement": With respect to any Mortgage Loan, the loan
agreement, if any, between the Seller and the Borrower, pursuant to which such
Mortgage Loan was made.
"Maturity Date": With respect to any Mortgage Loan, the
maturity date as set forth in the applicable Mortgage Loan Characteristics
Schedule.
"Moody's": Moody's Investors Service, Inc., and its successors
in interest.
"Mortgage File": As defined in Section 1(c).
"Mortgage Loan Characteristics Schedule": As defined in the
Recitals.
"Mortgage Loan Control #": With respect to any Mortgage Loan,
the "Control Number" assigned to such Mortgage Loan for purposes of the
Securitization Transaction as set forth on the applicable Mortgage Loan
Characteristics Schedule.
"Mortgage Loan Documents": Any and all documents contained in
the Mortgage File and the Servicing File.
"Mortgage Loans": As defined in the Recitals.
"Mortgage Loan Sellers": As defined in the Recitals.
"Mortgaged Property": The underlying property securing a
Mortgage Loan, consisting of a fee simple or leasehold estate in a parcel of
land improved by a commercial property, together with any personal property,
fixtures, leases and other property or rights pertaining thereto.
"Mortgage Rate": With respect to each Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan (in the absence of a
default), as set forth in the applicable Mortgage Loan Characteristics Schedule.
"Note": With respect to any Mortgage Loan as of any date of
determination, the note or other evidence of indebtedness and/or agreements
evidencing the indebtedness of the related Borrower under such Mortgage Loan,
including any amendments or modifications, or any renewal or substitution notes,
as of such date.
"Originator": With respect to a Mortgage Loan, the originator
of such Mortgage Loan, as identified in the Mortgage Loan Characteristics
Schedule.
Annex B-3
<PAGE>
"Person": Any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
estate, unincorporated organization or government or any agency or political
subdivision thereof.
"Placement Agents": As defined in the Recitals.
"Pooling and Servicing Agreement": As defined in the Recitals.
"Private Placement Memorandum": The Private Placement
Memorandum relating to the Privately Offered Certificates dated July __, 1999..
"Prospectus": The prospectus dated October 29, 1998, as
supplemented by a prospectus supplement to be dated on or about July __, 1999
(the "Prospectus Supplement"), relating to the Publicly Offered Certificates.
"PSI": As defined in the Recitals.
"Purchaser": As defined in the Preamble.
"Qualified Mortgage": 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 Regulations 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage), or any substantially similar
successor provision.
"Rating Agency": Each of S&P or Moody's.
"Registration Statement": The registration statement No.
_________ filed by the Purchaser on Form S-3 and declared effective on ________,
1998.
"Requested Disclosure Information": As defined in Section 4.
"Reserve Accounts": As defined in Section 1(a)..
"S&P": Standard & Poor's Ratings Services.
"Securities Act": As defined in the Recitals.
"Securitization Transaction": As defined in the Recitals.
"Seller": As defined in the Preamble.
"Servicer": As defined in the Recitals.
"Special Servicer": As defined in the Recitals.
"Trustee": As defined in the Recitals.
"Trust Fund": As defined in the Recitals.
Annex B-4
<PAGE>
"Underlying Mortgage Loan Purchase and Sale Agreement": As
defined in the Recitals.
"Underwriters": As defined in the Recitals.
Annex B-5
<PAGE>
ANNEX C
DISCLOSURES
Annex C-1
<PAGE>
EXHIBIT G-2
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
-----------------------------------------
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT (this "Agreement") dated
July 22, 1999, is between BRIDGER COMMERCIAL REALTY FINANCE LLC, a Missouri
limited liability company (the "Seller"), BRIDGER COMMERCIAL FUNDING LLC
("Bridger Funding"), a Missouri limited liability company, and PRUDENTIAL
SECURITIES CREDIT CORP., a Delaware corporation (the "Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller originated or otherwise acquired certain fixed rate
mortgage loans;
WHEREAS, the Seller, Bridger Funding, as an Affiliate of the Seller, the
Purchaser, and Prudential Securities Incorporated, an Affiliate of the Purchaser
("PSI"), are parties to that certain Mortgage Loan Securitization Agreement
dated as of June 10, 1997 (the "Securitization Agreement"), which contemplates,
among other things, the disposition of commercial mortgage loans through a whole
loan securitization transaction (the "Securitization Transaction");
WHEREAS, in order to effect the Securitization Transaction, the Seller
desires to sell to Purchaser on the Closing Date (as hereinafter defined), and
the Purchaser desires to purchase from the Seller, certain mortgage loans
(collectively, the "Mortgage Loans"), all of which are described in, and set
forth in, the schedule attached hereto as Annex A (the "Mortgage Loan
Characteristics Schedule");
WHEREAS, on the Closing Date the Purchaser intends to sell the Mortgage
Loans to Prudential Securities Secured Financing Corporation, an Affiliate of
the Purchaser (the "Depositor") which will deposit the Mortgage Loans in a trust
fund (the "Trust Fund"), the beneficial ownership of which will be evidenced by
the Commercial Mortgage Pass-Through Certificates, Series 1999-C2, Class A-1,
Class A-2, Class A-EC1, Class A-EC2, 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 and Class R-II (collectively, the "Certificates") issued to certain
purchasers of the Certificates (collectively, the "Certificateholders") pursuant
to the Pooling and Servicing Agreement dated as of July 1, 1999 (the "Pooling
and Servicing Agreement"), by and between the Depositor, National Realty Funding
L.C., as servicer (in such capacity, the "Servicer") and special servicer (in
such capacity, the "Special Servicer"), and The Chase Manhattan Bank, as trustee
(in such capacity, the "Trustee") (capitalized terms used herein and not defined
herein or in Annex B attached hereto shall have the respective meanings ascribed
to such terms in the Pooling and Servicing Agreement);
WHEREAS, the Depositor intends to sell the Class A-1, Class A-2, Class B,
Class C, Class D, Class E and Class F Certificates (collectively, the "Publicly
Offered Certificates") registered under the Securities Act of 1933, as amended
(the "Securities Act") to PSI and Greenwich NatWest Limited, as agent for
National Westminster Bank Plc. ("GNL"), as
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underwriters (in such capacities, the "Underwriters"), pursuant to an
Underwriting Agreement to be dated the date hereof (the "Underwriting
Agreement");
WHEREAS, the Depositor intends to sell the Class A-EC1, Class A-EC2, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class R-I and
Class R-II Certificates (the "Privately Offered Certificates") to PSI and GNL,
as placement agents (in such capacities, the "Placement Agents"), pursuant to a
Certificate Purchase Agreement to be dated on or about the date hereof (the
"Certificate Purchase Agreement"), as described in a Private Placement
Memorandum relating thereto, to be dated the date hereof (the "Private Placement
Memorandum");and
WHEREAS, the Purchaser, in reliance on the representations, warranties and
covenants of the parties contained herein, has agreed to enter into and effect
the Securitization Transaction, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated into the operative provisions of this Agreement by this reference,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby conclusively acknowledged, the parties hereto hereby agree as
follows:
1. Purchase Proceeds; Purchase and Sale; Delivery of Mortgage Files.
(a) On the Closing Date, the Seller hereby agrees to sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase all of the Seller's right, title and interest
in and to the Mortgage Loans and the related mortgage loan documents
(collectively, the "Mortgage Loan Documents"), including, without limitation:
(i) all scheduled payments of interest and principal due on or with respect to
each Mortgage Loan after July 1, 1999 (the "Cut-off Date"); (ii) all other
payments of interest and principal received on or with respect to each Mortgage
Loan after the Cut-off Date, other than any such payments of interest or
principal which were allocable to a period on or prior to the Cut-off Date;
(iii) all of the Seller's right, title and interest in and to the proceeds of
any related title, hazard or other insurance policies received on or with
respect to any Mortgage Loan after the Cut-off Date; and (iv) all reserve
accounts and escrow accounts, if any, established pursuant to the related
Mortgage Loan Documents (collectively, the "Reserve Accounts"), and all of the
Seller's right, title and interest in and to the funds therein.
(b) The Purchaser shall purchase the Mortgage Loans and the Mortgage Loan
Documents and pay the Seller an amount of the purchase proceeds determined in
accordance with that certain Loan Seller Agreement, dated May 24, 1999, between
the Seller, National Realty Finance L.C. and Greenwich Capital Financial
Products, Inc. ( the "Loan Seller Agreement") (the "Purchase Proceeds"). The
Purchase Proceeds shall be paid to the Seller by wire transfer in immediately
available funds on the date of the consummation of the Securitization
Transaction (the "Closing Date") (or by such other method as the Purchaser and
the Seller may agree), with such later adjustments as provided for in the Loan
Seller Agreement. The closing for the purchase and sale of the Mortgage Loans
shall take place at the offices of Latham & Watkins, 885 Third Avenue, New York,
New York 10022.
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(c) The Seller hereby agrees to deliver to the Purchaser or its designee,
within the respective time periods described below, the following documents or
instruments with respect to each Mortgage Loan:
(i) the original of the related Note, endorsed by the Seller in blank or in
the following form: "Pay to the order of The Chase Manhattan Bank, as
Trustee, for the registered holders of Prudential Securities Secured
Financing Corporation Commercial Mortgage Pass-Through Certificates, Series
1999-C2, without recourse", which the Purchaser or its designee is authorized
to complete and which Note and all endorsements thereof shall show a complete
chain of endorsement from the Originator to the Seller;
(ii) (a) the related original recorded Mortgage or a copy thereof certified
by the related title insurance company, public recording office or closing
agent to be in the form in which executed and submitted for recording, (b)
the related original recorded Assignment of Mortgage from the Originator to
the Seller, or a copy thereof certified by the related title insurance
company, public recording office or closing agent to be in the form in which
executed and submitted for recording, and (c) the related original Assignment
of Mortgage executed by the Seller in blank, which the Purchaser or its
designee is authorized to complete (and but for the insertion of the name of
the assignee and any related recording information which is not yet available
to the Seller, is in suitable form for recordation in the jurisdiction in
which the related Mortgaged Property is located);
(iii) (a) if the related security agreement is separate from the Mortgage,
the original security agreement or a counterpart thereof, (b) if the security
agreement is not assigned under the Assignments of Mortgage described in
clause (ii) above, the related original assignment of such security agreement
from the Originator to the Seller or a counterpart thereof, and (c) the
related original assignment of such security agreement executed by the Seller
in blank, which the Purchaser or its designee is authorized to complete;
(iv) (a) a copy of each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property, (b) a copy of each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement to the Seller from the Originator, and (c) a copy of each
Form UCC-2 or UCC-3 assignment, if any, of such financing statement executed
by the Seller in blank, which the Purchaser or its designee is authorized to
complete (and but for the insertion of the name of the assignee and any
related filing information which is not yet available to the Seller, is in
suitable form for filing in the filing office in which such financing
statement was filed);
(v) the related original of the Loan Agreement, if any, relating to such
Mortgage Loan or a counterpart thereof;
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<PAGE>
(vi) the related original lender's title insurance policy (or the original
pro forma title insurance policy), together with any endorsements thereto;
(vii) if any related Assignment of Leases, Rents and Profits is separate
from the Mortgage, (a) the original recorded Assignment of Leases, Rents and
Profits or a copy thereof certified by the related title insurance company,
public recording office or closing agent to be in the form in which executed
and submitted for recording, (b) the related original recorded reassignment
of such instrument, if any, from the Originator to the Seller or a copy
thereof certified by the related title insurance company, public recording
office or closing agent to be in the form in which executed and submitted for
recording, and (c) the related original reassignment of such instrument, if
any, executed by the Seller in blank, which the Purchaser or its designee is
authorized to complete (and but for the insertion of the name of the assignee
and any related recording information which is not yet available to the
Seller, is in suitable form for recordation in the jurisdiction in which the
related Mortgaged Property is located) (any of which reassignments, however,
may be included in a related Assignment of Mortgage and need not be a
separate instrument);
(viii) if any related assignment of contracts is separate from the
Mortgage, the original assignment of contracts or a counterpart thereof, and
if the assignment of contracts is not assigned under the Assignments of
Mortgage described in clause (ii) above, the related original reassignment of
such instrument from the Originator to the Seller or a counterpart thereof
and the related original reassignment of such instrument executed by the
Seller in blank, which the Purchaser or its designee is authorized to
complete;
(ix) with respect to the related Reserve Accounts, if any, a copy of the
original of any separate agreement with respect thereto between the related
Borrower and the Originator;
(x) the original of any other written agreement, instrument or document
securing such Mortgage Loan, including, without limitation, originals of any
guarantees with respect to such Mortgage Loan or the original letter of
credit, if any, with respect thereto, together with any and all amendments
thereto, including, without limitation, any amendment which entitles the
Purchaser or its designee to draw upon such letter of credit, and the
original of each instrument or other item of personal property given as
security for a Mortgage Loan possession of which by a secured party is
necessary to a secured party's valid, perfected, first priority security
interest therein, together with all assignments or endorsements thereof
necessary to entitle the Purchaser or its designee to enforce a valid,
perfected, first priority security interest therein;
(xi) with respect to the related Reserve Accounts, if any, (a) a copy of
the UCC-1 financing statements, if any, submitted for filing with respect to
the Originator's security interest in such Reserve Accounts and all funds
contained therein, (b) a copy of each Form UCC-2 or UCC-3 assignment, if any,
of such financing statement from the Originator to the Seller, and (c) a copy
of each Form UCC-2 or UCC-3
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<PAGE>
assignment, if any, of such financing statement executed by the Seller in
blank which the Purchaser or its designee is authorized to complete (and but
for the insertion of the name of the assignee and any related filing
information which is not yet available to the Seller is in suitable form for
filing in the filing office in which such financing statement was filed); and
(xii) copies of any and all amendments, modifications and supplements to,
and waivers related to, any of the foregoing.
Such documents and instruments relating to each Mortgage Loan are
collectively referred to herein as the "Mortgage File". In connection with the
Seller's delivery of Mortgage Loan Documents in accordance with this Section
1(c), the Seller hereby authorizes the Purchaser or its designee to complete
each endorsement or assignment in blank appearing thereon in such manner as the
Purchaser or its designee shall determine in the exercise of its sole discretion
(provided that such endorsement or assignment will be without recourse,
representation or warranty except as expressly set forth in this Agreement). In
addition, all funds held by the Seller in the Reserve Accounts shall be
delivered to the Purchaser or its designee on or before the Closing Date.
If the Seller cannot deliver, or cause to be delivered, as to any of the
Mortgage Loans, the original or a copy of any of the documents and/or
instruments referred to in this Section 1(c)(ii)(a) or (b), (iv)(a) or (b),
(vii)(a) or (b), (xi)(a) or (b) and (xii), with (if appropriate) evidence of
recording or filing, as the case may be, thereon, solely because of a delay
caused by the public recording or filing office where such document or
instrument was submitted for recording or filing, the delivery requirements set
forth above shall be deemed to have been satisfied as to such missing document
or instrument, and such missing document or instrument shall be deemed to have
been included in the related Mortgage File, provided that the Seller has
delivered to the Purchaser or its designee on or before the Closing Date a copy
of such document or instrument (without evidence of recording or filing thereon,
but certified (which certificate may relate to multiple documents and/or
instruments) by the Seller to be a true and complete copy of the original
thereof submitted for recording or filing, as the case may be), and the Seller
shall deliver to or at the direction of the Purchaser or its designee, promptly
following the receipt thereof, the original of such missing document or
instrument (or a copy thereof) with (if appropriate) evidence of recording or
filing, as the case may be, thereon. If the Seller cannot deliver, or cause to
be delivered, as to any of the Mortgage Loans, the original of any of the
documents referred to in clause 1(c)(ii)(a) or (b) or (vii)(a) or (b) solely
because the public recording office retains the original assignment, then the
Seller, at its expense, shall deliver to the Purchaser or its designee a copy of
the recorded original. If the Seller cannot deliver, or cause to be delivered,
as to any of the Mortgage Loans, the original or a copy of the related lender's
title insurance policy referred to in clause (vi) solely because such policy has
not yet been issued, the delivery requirements set forth above shall be deemed
to be satisfied as to such missing document, and such missing document shall be
deemed to have been included in the related Mortgage File, provided that the
Seller has delivered to the Purchaser or its designee on or before the Closing
Date a commitment for title insurance "delivered" at the closing of such
Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser or its designee, promptly following the receipt thereof, the original
lender's title insurance policy (or a copy thereof).
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Notwithstanding the immediately preceding paragraph, the failure to deliver
the originals or copies of any of the documents or instruments referred to in
this Section 1(c)(ii)(a) or (b), (iv)(a) or (b), (vii)(a) or (b), (xi)(a) or (b)
and (xii) within 120 days after the Closing Date shall cause the related
Mortgage Loan to become a Defective Document Mortgage Loan under Section 3
hereof.
In addition, the Seller shall be required to deliver to the Purchaser or
its designee all other Mortgage Loan Documents related to such Mortgage Loan
that are not required to be delivered pursuant to clauses (i) through (xii)
above, including without limitation a copy of the Management Agreement, if any,
for the related Mortgaged Property; a copy of the related ground lease, as
amended, if any, for such Mortgaged Property; any and all amendments,
modifications and supplements to, and waivers related to, any of the foregoing;
copies of the related Appraisals, surveys, environmental reports, leases and
other similar documents; and any other written agreements related to, or
documents obtained or maintained in connection with the origination of, such
Mortgage Loan.
(d) The Mortgage Loans shall be sold to the Purchaser on a
servicing-released basis. In accordance with the Pooling and Servicing
Agreement, the Servicer shall assume responsibility for the servicing of each
Mortgage Loan immediately upon the Closing Date. The Seller shall cooperate in
all reasonable respects with the Purchaser and the Servicer in connection with
such transfer of servicing responsibilities effective on the Closing Date. The
Seller and the Purchaser acknowledge that certain third parties currently act as
custodian with respect to the Mortgage Loans. Effective upon deposit of the
Mortgage Loans in the Trust Fund on the Closing Date, the Trust Fund shall
appoint The Chase Manhattan Bank to act as custodian (in such capacity, the
"Custodian") for the Trust Fund with respect to the original Mortgage Files
pursuant to the Pooling and Servicing Agreement. The Seller agrees to cooperate
with the Purchaser and the Custodian in connection with the transfer of the
Mortgage Files to the Custodian and to provide such documents, information and
instructions as shall be reasonably necessary or convenient with respect
thereto. Effective on the Closing Date, the Seller shall provide the Purchaser
(or the Servicer or other designee of the Purchaser) with copies of the Mortgage
Files and specific assignments of the Mortgage Loan Documents pursuant to
Section 1 above and such other documents and information as the Purchaser shall
reasonably request.
2. Representations and Warranties.
(a) Each of the Seller and Bridger Funding hereby represents and warrants
to the Purchaser and its successors and assigns as provided in this Agreement
(subject to the qualifications with respect to matters of enforceability set
forth below in Section 2(c)) as of the date hereof and as of the Closing Date
that:
(i) Due Organization; Qualification. It is a limited liability company duly
organized, validly existing and in good standing under the laws of the State
of Missouri, is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and the assignment thereof to the
Purchaser as herein provided and to perform its duties and obligations under
this Agreement.
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(ii) Authority. It has the full power, authority and legal right to execute
and deliver this Agreement (and all agreements executed and delivered by it
in connection herewith) and to perform all transactions contemplated by this
Agreement (and all agreements executed and delivered by it in connection
herewith). It has duly authorized the execution, delivery and performance of
this Agreement (and all agreements executed and delivered by it in connection
herewith), and has duly executed and delivered this Agreement (and all
agreements executed and delivered by it in connection herewith). This
Agreement (and each agreement executed and delivered by it in connection
herewith), assuming due authorization, execution and delivery by each other
party hereto (and thereto), constitutes its legal, valid and binding
obligation enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally, by
general principles of equity and by any applicable anti-deficiency laws
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(iii) No Conflicts. Neither the execution and delivery of this Agreement
nor the fulfillment of or compliance with the terms and conditions of this
Agreement by it will (A) conflict with or result in a breach of any of the
terms, conditions or provisions of its certificate of organization, as
amended, or other organizational documents or any agreement or instrument to
which it is now a party or by which it (or any of its properties) is bound,
or constitute a default or result in an acceleration of indebtedness under
any of the foregoing; (B) conflict with or result in a breach of any legal
restriction if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or any Mortgage Loan, or (2) for it to
perform its duties and obligations under this Agreement (or any agreement
executed and delivered by it in connection herewith); (C) result in the
violation of any law, rule, regulation, order, judgment or decree to which it
(or any of its properties) is subject if compliance therewith is necessary
(1) to ensure the enforceability of this Agreement, or (2) for it to perform
its duties and obligations under this Agreement (or any agreement executed
and delivered by it in connection herewith); or (D) result in the creation or
imposition of any lien, charge or encumbrance that would have a material
adverse effect upon any of its properties pursuant to the terms of any
mortgage, deed of trust, contract or other instrument or materially impair
the ability of the Purchaser to realize on any Mortgage Loan.
(iv) Solvency. It is solvent and the execution, delivery and performance of
this Agreement (A) will not cause it to become insolvent, and (B) is not
intended by it to hinder, delay or defraud any of its creditors.
(v) No Consent Required. No consent, approval, authorization or order of,
or registration or filing with, or notice to, any court or governmental
agency or body having jurisdiction or regulatory authority over it (or any of
its properties) is required for (A) its execution and delivery of this
Agreement (and each agreement executed and delivered by it in connection
herewith) or (B) the consummation by it of the transactions contemplated by
this Agreement (and each agreement executed and delivered by it in connection
herewith) or, to the extent so required, such consent, approval,
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<PAGE>
authorization, order, registration, filing or notice has been obtained, made
or given (as applicable), except that (1) it may not be duly qualified to
transact business as a foreign limited liability company or licensed in one
or more states if such qualification or licensing is not necessary for it to
perform its duties and obligations under this Agreement (or any agreement
executed and delivered by it in connection herewith) and (2) it makes no
representation with respect to any required registration under the Securities
Act or any state securities or "Blue Sky" laws in connection with the
Securitization Transaction.
(vi) Ability to Perform. It does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant of it
contained in this Agreement (or any agreement executed and delivered by it in
connection herewith).
(vii) No Litigation Pending. There are no actions, suits or proceedings
with respect to which it has received service of process or, to its
knowledge, threatened against it which draw into question the validity of
this Agreement or which (if decided adversely to it), either in any one
instance or in the aggregate, would result in any material adverse change in
its business, operations, or financial condition or would materially impair
its ability to perform its duties and obligations under this Agreement (or
any agreement executed and delivered by it in connection herewith).
(viii) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement (and each agreement executed and delivered by
the Seller in connection herewith) is in the ordinary course of business of
the Seller, and the sale, transfer, assignment and conveyance of the Notes
and the Mortgages by the Seller pursuant to this Agreement are not subject to
the bulk transfer or any similar statutory provisions in effect in any
applicable jurisdiction.
(ix) No Brokers. It has not dealt with any Person (other than the
Purchaser) that may be entitled, by reason of any act or omission by it, to
any commission or compensation in connection with this Agreement or the
transactions contemplated hereby.
(x) No Untrue Information. Insofar as relates to the Mortgage Loans or the
Seller or Bridger Funding, no statement, report, or other document relating
to any Mortgage Loan furnished by or on behalf of the Seller or any Affiliate
thereof in writing (including electronic media), specifically identified in
writing (including electronic media) as being furnished for use in connection
with the preparation of the Prospectus or Private Placement Memorandum,
contains any untrue statement by the Seller or any Affiliate thereof of any
material fact or an omission by the Seller or any Affiliate thereof of a
material fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading.
(xi) No Default. It is not in default or breach of any agreement or
instrument to which it is now a party or by which it (or any of its
properties) is bound which breach or default would materially and adversely
affect its ability to perform its obligations under this Agreement.
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(b) Each of the Seller and Bridger Funding (with respect to each Mortgage
Loan unless otherwise indicated) hereby represents and warrants to the Purchaser
and its successors and assigns as provided in this Agreement (subject to the
qualifications with respect to matters of enforceability set forth below in
Section 2(c)) that as of the date specified below or, if no such date is
specified, as of the date hereof, and as of the Closing Date and subject to the
exceptions disclosed on Annex C attached hereto:
(i) Mortgage Loan Characteristics. The information set forth in the
Mortgage Loan Characteristics Schedule is true, correct and complete in all
material respects; provided, however, that with respect to the information
set forth with respect to each Mortgage Loan under the captions "Physical
Occupancy %," "Occupancy As of Date," "1997 NOI," "1998 NOI," "Underwritten
NOI," "Underwritten Net Cash Flow" and "Underwritten NOI DSCR", the Seller
represents only that such information is a correct and accurate reproduction
or derivation, as adjusted by the Seller in accordance with its customary
underwriting practices and procedures, of the information provided to it by
the related Borrower (or an affiliate or principal thereof) and takes no
responsibility for the accuracy or completeness of any such information
provided by the related Borrower (or such affiliate or principal); provided,
further, however, that the Seller has no actual knowledge that such
information is incorrect, inaccurate or incomplete following the reasonable
and customary due diligence performed by the Seller in connection with its
origination or purchase of the Mortgage Loans.
(ii) Domestic Borrower. The related Borrower is an individual who is a
citizen of, or an entity organized under the laws of, a state of the United
States of America.
(iii) Single-Purpose, Bankruptcy Remote Entity. Each Borrower of a Mortgage
Loan in excess of $25,000,000 is an entity which has represented in
connection with the origination of the Mortgage Loan, or whose organizational
documents as of the date of origination of the Mortgage Loan provide that so
long as the Mortgage Loan is outstanding it will be a single-purpose entity
whose activities and ability to incur debt are restricted by the applicable
Mortgage or the organizational documents in a manner intended to make the
likelihood of bankruptcy proceedings being commenced by or against such
Borrower remote, and as to which the Borrower has delivered an opinion of
counsel concerning substantive non-consolidation and as to which the Borrower
has at least one independent director. For this purpose, "single-purpose
entity" shall mean a Person, other than an individual, which does not engage
in any business unrelated to the related Mortgaged Property and its
financing, does not have any assets other than those related to its interest
in such Mortgaged Property or its financing, or any indebtedness other than
as permitted by the related Mortgage or the other Mortgage Loan Documents,
has its own books and records separate and apart from any other Person and
holds itself out as being a legal entity, separate and apart from any other
Person.
(iv) Delivery of Mortgage Loans Documents. The Seller has caused or will
cause to be delivered to the Purchaser (or its designee) within the time
period
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prescribed in Section 1 each of the documents comprising the Mortgage File
for such Mortgage Loan.
(v) Payment Current. All payments required to be made with respect to such
Mortgage Loan under the terms of the related Note or the related Mortgage
(inclusive of any applicable grace or cure period) up to the Closing Date
have been made. Within the twelve months preceding the Closing Date, there
has not been any delinquency in excess of 30 days with respect to such
Mortgage Loan.
(vi) Equity Participation or Participation Interest. Such Mortgage Loan
contains no equity participation by the Seller and is a whole loan and not a
participation interest. Neither the related Note nor the related Mortgage
provides for negative amortization or any contingent or additional interest
in the form of participation in the cash flow of the related Mortgaged
Property. The Seller has no ownership interest in such Mortgaged Property or
the related Borrower other than in such Mortgage Loan being sold and
assigned. Neither the Seller nor any affiliate of the Seller has any
obligation to make any capital contributions to the related Borrower under
the Mortgage or any other related Mortgage Loan Document.
(vii) Compliance with Applicable Laws. As of the date of its origination,
such Mortgage Loan either complied with, or was exempt from, applicable
federal or state laws, regulations and other requirements pertaining to
usury. To the best of the Seller's knowledge, as of the date of origination
of such Mortgage Loan, the related originator complied in all material
respects with the requirements of any and all other federal, state or local
laws applicable to the origination, servicing and collection of such Mortgage
Loan. No governmental or regulatory approval or consent is required for the
sale of such Mortgage Loan by the Seller, and the Seller has full right,
power and authority to sell such Mortgage Loan. To the extent necessary to
ensure the enforceability of such Mortgage Loan and the effective sale,
transfer and assignment thereof and of the related Note, the originator
and/or the Seller each was qualified and appropriately licensed to transact
business in the jurisdiction in which the related Mortgaged Property is
located at the time such entity had possession of the related Note.
(viii) Proceeds Fully Disbursed. The proceeds of such Mortgage Loan have
been fully disbursed (although certain reserve accounts controlled by the
Seller may have been established as described in the Mortgage Loan
Characteristics Schedule), and there is no requirement for future advances
thereunder.
(ix) Origination Expenses Paid. All costs, fees and expenses incurred in
connection with the origination and closing of such Mortgage Loan, including,
without limitation, recording costs and fees, have been paid to the
appropriate person or arrangements have been made for their payment to the
appropriate person on a timely basis by the related Borrower.
(x) Documents Valid. Each of the related Note, the related Mortgage and any
other related Mortgage Loan Document is the legal, valid and binding
obligation
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of the related Borrower, the related guarantor or other party executing such
document (subject to any non-recourse or partial recourse provisions
contained therein), and is enforceable in accordance with its terms (subject
to the qualifications set forth in Section 2(c)). There is no valid offset,
defense, counterclaim or right of rescission with respect to such Note,
Mortgage or any other Mortgage Loan Document, nor will the operation of any
of the terms of such Note or Mortgage, or the exercise of any right
thereunder, render either such Note or Mortgage unenforceable or subject to
any valid offset, defense, counterclaim or right of rescission, including,
without limitation, the defense of usury, and the Seller has no knowledge
that any such offset, defense, counterclaim, or right of rescission has been
asserted or is available with respect thereto. Except as described in the
immediately following sentence, the related Note and the related Mortgage do
not require the related mortgagee to release any portion of the related
Mortgaged Property except upon payment in full of such Mortgage Loan or the
exercise of a defeasance feature. In the case of certain Mortgaged Properties
securing cross-collateralized Mortgage Loans, certain Mortgage Loans secured
by multiple Mortgaged Properties, and certain Mortgage Loans secured by one
or more parcels constituting a single Mortgaged Property, the related
mortgagee may be required to release a Mortgaged Property or a portion
thereof upon payment of a portion of the related Mortgage Loan as specified
in the related Mortgage Loan Documents.
(xi) Assignment of Mortgage; Note Endorsement. The related Assignment of
Mortgage (but for the insertion of the name of the assignee and any related
recording information which is not yet available to the Seller) is or will be
in recordable form and constitutes or will constitute the Seller's legal,
valid and binding assignment to the Purchaser of the related Mortgage and any
related Assignment of Leases, Rents and Profits or assignment of Assignment
of Leases, Rents and Profits. The Seller's endorsement and delivery of the
related Note to the Purchaser in accordance with the terms of this Agreement
constitutes or will constitute the Seller's legal, valid and binding
assignment to the Purchaser of such Note, and together with the Seller's
execution and delivery of such Assignment of Mortgage to the Purchaser,
legally and validly conveys or will convey all right, title and interest of
the Seller in such Mortgage Loan to the Purchaser.
(xii) First Lien. Based on the related policy of title insurance (or pro
forma or specimen policy or "marked-up" commitment for title insurance), the
related Mortgage is a legal, valid and enforceable first lien on the related
Mortgaged Property (including all buildings and improvements on such
Mortgaged Property and all installations and mechanical, electrical,
plumbing, heating and air conditioning systems located in or annexed to such
buildings, and all additions, alterations and replacements made at any time
prior to the closing date of such Mortgage Loan with respect to the
foregoing, but excluding any related personal property) which Mortgaged
Property is free and clear of all liens and encumbrances having priority over
or equal to the first lien of such Mortgage, except for (A) the lien of
current real estate taxes and special assessments not yet delinquent or
accruing interest or penalties, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date of
recording of such Mortgage which do not materially and adversely (1) affect
the value of
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such Mortgaged Property as security for such Mortgage Loan, or (2) interfere
with the related Borrower's ability to make required interest and principal
payments or to make use of such Mortgaged Property for the intended purposes
therefor, (C) leases and subleases pertaining to such Mortgaged Property
which the Seller did not require to be subordinated to the lien of such
Mortgage; provided that such leases and subleases, if any, are with entities
which are not affiliated with the Seller, and (D) other matters which do not,
individually or in the aggregate, materially and adversely (1) affect the
value of such Mortgaged Property as security for such Mortgage Loan, or (2)
interfere with the related Borrower's ability to make required principal and
interest payments or to make use of such Mortgaged Property for the intended
purposes therefor.
(xiii) No Modification, Release or Satisfaction. Except by a written
instrument which has been delivered to the Purchaser or its designee as a
part of the related Mortgage File, (A) neither the related Note nor the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has been impaired, waived, modified, altered,
satisfied, canceled or subordinated or rescinded, (B) the related Mortgaged
Property has not been released from the lien of such Mortgage and (C) the
related Borrower has not been released from its obligations under such
Mortgage, in whole or in any part, in each such event in a manner which would
materially interfere with the benefits of the security intended to be
provided by such Mortgage.
(xiv) Defeasance. A Mortgage Loan which permits defeasance provides that,
after the applicable Defeasance Lockout Period, the related Borrower may
obtain the release of all or a portion of the related Mortgaged Property from
the lien of the related Mortgage upon the pledge to the Trustee of
non-callable U.S. Treasury or other non-callable U.S. government obligations
that provide for payments on or prior to all successive payment dates to
maturity (or, in the case of an ARD Loan, through the related Anticipated
Repayment Date) in the amounts due on such dates and upon the satisfaction of
certain other conditions. A Mortgage Loan containing a defeasance provision
has a Defeasance Lockout Period of not less than two years after the Closing
Date or includes other conditions precedent the satisfaction of which will
ensure that the exercise of such a feature will not cause a REMIC to fail to
be a REMIC. In certain cases, the Mortgage Loans require that a REMIC opinion
be provided as a condition to exercise of any defeasance option, and the
Mortgage or the other related Mortgage Loan Documents generally require the
satisfaction of one or more of the following conditions prior to the
defeasance of the related Mortgaged Property:
(A) the related Borrower must provide the mortgagee with a prior
written notice of not less than 30 days;
(B) the related Borrower must either (i) deliver to the mortgagee or
the servicer of the Mortgage Loan, as the case may be, government
obligations described above in this Section 2(b)(xiv) or (ii) pay to the
mortgagee or the servicer of the Mortgage Loan, as the case may be, an
amount sufficient to purchase the government obligations described above in
this Section 2(b)(xiv);
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(C) the related Borrower must provide a written confirmation from the
Rating Agencies indicating that such defeasance will not result in a
reduction, withdrawal or qualification of the respective ratings of any
outstanding Classes of Certificates;
(D) the related Borrower must deliver an officer's certificate to the
effect that all of its obligations with respect to the Mortgage Loan have
been satisfied and that the Mortgage Loan is not in default; and
(E) the related Borrower must undertake to provide such other
documents or information as the mortgagee may reasonably request in
connection with such defeasance.
(xv) No Delinquent Taxes or Assessments. All tax or governmental
assessments, or installments thereof, which were due on or prior to the date
of origination had been paid as of such date and the Seller knows of no tax
or governmental assessment, or if payable in installments, any installment
thereof, which became due and owing thereafter and prior to the Closing Date
in respect of the related Mortgaged Property, which, if left unpaid, would
be, or might become, a lien on such Mortgaged Property having priority over
the related Mortgage which has become delinquent such that (A) such tax,
assessment or installment has commenced to accrue interest or penalties, or
(B) the applicable taxing authority may commence proceedings to collect such
tax, assessment or installment, as applicable.
(xvi) Escrow or Reserve Deposits. As of the Closing Date: (A) the related
Reserve Account(s), if any, contain all escrow deposits and other payments
required by the terms of the related Mortgage Loan Documents (inclusive of
any applicable grace or cure period) to be held by the Seller as of the
Closing Date; and (B) the Seller is transferring all amounts on deposit in
the related Reserve Account(s) on the Closing Date to the Purchaser or to the
extent not being transferred to the Purchaser, all escrow deposits and other
payments required under the related Note, the related Mortgage and any other
related Mortgage Loan Documents have been applied in accordance with their
intended purposes by the related mortgage loan originator, the related Seller
or its agent.
(xvii) No Third Party Advances. The Seller has not, directly or indirectly,
(A) advanced funds, (B) induced or solicited any payment from a Person other
than the related Borrower, or (C) to the Seller's knowledge, received any
payment other than from such Borrower, for the payment of any amount required
under the related Note or the related Mortgage, except for interest accruing
from the date of such Note or the date of disbursement of the proceeds of
such Mortgage Loan, whichever is later, to the date which precedes by 30 days
the first Due Date under such Note.
(xviii) No Condemnation or Damages. To the best of the Seller's knowledge,
no proceedings for the total or partial condemnation of the related Mortgaged
Property (A) have occurred since the date as of which the appraisal relied
upon in the
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origination of such Mortgage Loan was prepared, or (B) are pending or
threatened other than, in each such case, proceedings as to partial
condemnation which do not materially and adversely affect the value of such
Mortgaged Property as security for such Mortgage Loan. To the best of
Seller's knowledge, the related Mortgaged Property is free of material
damage. The related Mortgage requires that any related condemnation award be
applied either to the restoration of the related Mortgaged Property or to the
payment of the outstanding principal balance of or accrued interest on such
Mortgage Loan.
(xix) No Mechanics' Liens. To the Seller's knowledge, the related Mortgaged
Property (excluding any related personal property) (i) is free and clear of
any mechanics' and materialmen's liens or liens in the nature thereof, and
(ii) no rights are outstanding that, under applicable law, could give rise to
any such liens, any of which liens are or may be prior to, or equal with, the
lien of the related Mortgage, except, with respect to (i) and (ii) above,
those which are insured against by the related lender's title insurance
policy referred to in Section 2(b)(xxiii) below.
(xx) Title Survey: Improvements; Separate Tax Parcels. The Seller has
delivered an as-built survey, a survey recertification, a site plan, a
recorded plat or the like with respect to the related Mortgaged Property
which satisfied, or the Seller otherwise satisfied, the requirements of the
related title insurance company for deletion of the standard general
exceptions for encroachments, boundary and other survey matters and for
easements not shown by the public records from the related title insurance
policy, except with respect to any related Mortgaged Property located in a
jurisdiction (such as the State of Texas where survey title insurance
coverage is prohibited by law) in which the exception for easements not shown
by the public records could not be deleted and such standard general
exception is customarily accepted by prudent commercial mortgage lenders in
such jurisdiction. Except for encroachments and similar matters which are
inconsequential, do not materially and adversely affect the value of such
Mortgaged Property as security for such Mortgage Loan, or are insured against
by the related lender's title insurance policy described in Section
2(b)(xxiii) below, surveys and/or title insurance obtained at the time of the
origination of such Mortgage Loan indicated or insured that (A) none of the
improvements which were included for the purpose of determining the Appraised
Value of such Mortgaged Property in the related appraisal at the time of the
origination of such Mortgage Loan lie outside the boundaries and building
restriction lines of such Mortgaged Property, and (B) no improvements on
adjoining properties encroach upon such Mortgaged Property. The related
Mortgaged Property constitutes one or more complete separate tax lots or is
subject to an endorsement under the related lender's title insurance policy.
(xxi) Title. The Seller has good title to and is the sole owner and
beneficial holder of such Mortgage Loan. The Seller has full power, authority
and legal right to sell and assign such Mortgage Loan hereunder, is the sole
mortgagee or beneficiary of record under the related Mortgage and is
transferring such Mortgage Loan to the Purchaser free and clear of any and
all liens, encumbrances, participation interests, pledges, charges or
security interests of any nature encumbering such Mortgage Loan.
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(xxii) Compliance with Laws. To the best of the Seller's knowledge (based
upon a letter or letters from governmental authorities, a legal opinion, an
endorsement or endorsements to the related title insurance policy, a
representation of the related Borrower at the time of origination of such
Mortgage Loan or other information reasonably acceptable to the Seller at the
time of its origination thereof), (A) no improvements located on or forming a
part of the related Mortgaged Property are in violation of any applicable
zoning and building laws or ordinances, (B) the related Mortgaged Property
complies with all other laws and regulations pertaining to the use and
occupancy thereof (excluding Environmental Laws which are addressed in
Sections 2(b)(xxxiv) and 2(b)(xxxv) below) and all applicable insurance
requirements, (C) such Borrower has obtained all inspections, licenses,
permits, authorizations, and certificates necessary for such compliance,
including, but not limited to, certificates of occupancy (if available), and
(D) the Seller has not received notification from any governmental authority
that such Mortgaged Property violates or does not comply with such laws or
regulations or is being used, operated or occupied unlawfully or that such
Borrower has failed to obtain such inspections, licenses, permits,
authorizations, or certificates, except for such violation or non-compliance
(1) which does not materially and adversely affect the value of such
Mortgaged Property as security for such Mortgage Loan or the use for which
such Mortgaged Property was intended at the time of origination of such
Mortgage Loan, (2) which is specifically addressed by the appraiser in the
determination of the related Appraised Value, or (3) for which a Reserve
Account held for the Seller has been established in an amount sufficient to
pay for the estimated costs to correct such violations or non-compliance.
(xxiii) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy or, if an ALTA lender's title insurance
policy is unavailable, another state-approved form of lender's title
insurance policy issued in an amount not less than the stated principal
amount of such Mortgage Loan (after all advances of principal) insuring the
Seller and its successors and assigns that the related Mortgage is a valid
first lien on the related Mortgaged Property, subject only to exceptions
described in Section 2(b)(xii) above (or, if such a title insurance policy
has not yet been issued in respect of such Mortgage Loan, such a policy will
be issued and is currently evidenced by a pro forma or specimen policy or by
a "marked-up" commitment for title insurance which was furnished by the
related title insurance company for purposes of closing such Mortgage Loan).
The premium for such title insurance policy has been paid in full and such
title insurance policy is (or, when issued, will be) in full force and
effect, and upon endorsement and delivery of the related Note to the
Purchaser and recording of the related Assignment of Mortgage in favor of the
Purchaser in the applicable real estate records, such title insurance policy
will inure to the benefit of the Purchaser. Such title insurance policy (A)
does not contain the standard general exceptions for encroachments, boundary
or other survey matters and for easements not shown by the public records,
other than matters which do not materially and adversely (1) affect the value
of the related Mortgaged Property as security for the Mortgage Loan, or (2)
interfere with the related Borrower's ability to make required principal and
interest payments or to make use of such Mortgaged Property for the intended
purposes, and (B)
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only contains such exceptions for encroachments, boundary and other survey
matters as are customarily accepted by prudent commercial mortgage lenders.
The Seller and its agents have not taken, or failed to take, any action that
would materially impair the coverage benefits of any such title insurance
policy. The Seller has not made any claim under such title insurance policy.
(xxiv) Insurance Related to Mortgaged Property. All improvements on the
related Mortgaged Property are insured by (A) a fire and extended perils
insurance policy providing coverage on a full replacement cost basis in an
amount not less than the lesser of (1) the full replacement cost of all
improvements to such Mortgaged Property, and (2) the outstanding principal
balance of such Mortgage Loan, but in any event in an amount sufficient to
avoid the operation of any co-insurance provisions contained in such
insurance policy, which policy contains a standard mortgagee clause naming
the originator or the Seller and its successors as additional insureds; (B)
an insurance policy providing business interruption or rental continuation
coverage in an amount not less than the income anticipated from 12 months of
operations of such Mortgaged Property; (C) a comprehensive general liability
insurance policy in an amount not less than $1,000,000 per occurrence; and
(D) if any material improvement on such Mortgaged Property is located in an
area identified by the Federal Emergency Management Agency as having special
flood hazards under the National Flood Insurance Act of 1968, as amended, a
flood insurance policy providing coverage in an amount not less than the
lesser of (1) the stated principal amount of the related Note, and (2) the
maximum amount of insurance available under the Flood Disaster Protection Act
of 1973, as amended. As of the Closing Date, the insurance premium for each
such insurance policy shall have been paid or escrowed. Each such insurance
policy contains a clause providing that it is not terminable and may not be
reduced without 30 days' prior written notice to the mortgagee (except that,
in the event of nonpayment of insurance premiums, each such insurance policy
provides for termination upon not less than 10 days' prior written notice),
and no such notice has been received by the Seller. With respect to each such
insurance policy, the Seller has received a certificate of insurance or
similar document dated within the last 12 months to the effect that such
insurance policy is in full force and effect. The Seller has no knowledge of
any action, omission, misrepresentation, negligence or fraud which would
result in the failure of any such insurance policy. The related Mortgage Loan
Documents require the related Borrower or a tenant of such Borrower to
maintain each such insurance policy at its expense, but authorizes the
mortgagee to maintain any such insurance policy at the related Borrower's
expense upon such Borrower's or such tenant's failure to do so (subject to
any applicable notice or cure periods). The related Mortgage and insurance
policy require that any related insurance proceeds, in excess of a specified
amount, will be applied either to the repair or restoration of all or part of
the related Mortgaged Property or to the payment of the outstanding principal
balance of or accrued interest on such Mortgage Loan.
(xxv) UCC Financing Statements. One or more Uniform Commercial Code
financing statements covering all furniture, fixtures, equipment and other
personal property (A) which are collateral under the related Mortgage or
under a security or similar agreement executed and delivered in connection
with such Mortgage Loan, and (B) in
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which a security interest can be perfected by the filing of Uniform
Commercial Code financing statement(s) under applicable law have been filed
or recorded (or have been sent for filing or recording) wherever necessary to
perfect under applicable law a security interest in such furniture, fixtures,
equipment and other personal property (including rights under leases and all
agreements affecting the use, enjoyment or occupancy of all or any part of
the Mortgaged Property and hotel room revenues).
(xxvi) Default, Breach and Acceleration. There is no material default,
breach, violation or event of acceleration existing under the related loan
agreement, related Note or the related Mortgage. The Seller has no knowledge
of any event (other than failure to make payments due but not yet delinquent)
which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event
of acceleration thereunder. The Seller has no knowledge that the related
Borrower is a debtor in any state or federal bankruptcy or insolvency
proceeding.
(xxvii) Customary Provisions. The related Note and the related Mortgage,
together with applicable state law, contain customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property
of the benefits of the security, including, but not limited to, judicial or,
if applicable, non-judicial foreclosure.
(xxviii) Access Routes. (A) Surveys, title insurance reports, the title
insurance policy or other relevant documents contained in the related
Mortgage File indicate that at the time of origination of such Mortgage Loan
the related Borrower had sufficient rights with respect to amenities, ingress
and egress and similar matters identified in the appraisal of the related
Mortgaged Property as being critical to the Appraised Value thereof, and (B)
such Mortgaged Property was receiving services from public or private water,
sewer and other utilities that were adequate as of the date that the Mortgage
Loan was originated, and none of such services is subject to revocation as a
result of a foreclosure or change in ownership of an adjacent property.
(xxix) Mortgage Loans Secured by Ground Lease but Not Fee Interest. With
respect to each Mortgage Loan that is secured in whole or in part by the
interest of the related Borrower as lessee under a ground lease of all or a
portion of the related Mortgaged Property (a "Ground Lease"), but the related
fee interest in the portion of such Mortgaged Property covered by such Ground
Lease (the "Fee Interest") is not subject or subordinate to the lien of the
related Mortgage, the Seller hereby represents and warrants that:
(A) as of the date of the closing of such Mortgage Loan, such Ground
Lease is in full force and effect, and such Ground Lease or a memorandum
thereof has been duly recorded in the applicable real estate records and
(1) such Ground Lease (or the related estoppel letter or lender protection
agreement between the Seller and related lessor) does not prohibit the
interest of the related lessee thereunder from being encumbered by the
related Mortgage and
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does not restrict the use of the related Mortgaged Property of such lessee
in a manner that would interfere with the related Borrower's ability to
make required principal and interest payments or to make use of such
Mortgaged Property for the intended purposes, or a separate written
agreement permitting such encumbrance has been obtained, and (2) there have
been no material changes in the terms of such Ground Lease that would be
binding on the mortgagee as successor to the lessee except as set forth in
written instruments which are part of the related Mortgage File;
(B) based on the related policy of title insurance, the related
lessee's leasehold interest in the portion of the related Mortgaged
Property covered by such Ground Lease is not subject to any liens or
encumbrances securing indebtedness which are superior to, or of equal
priority with, the related Mortgage, except for liens of current real
estate taxes and special assessments not yet delinquent or accruing
interest or penalties;
(C) the related lessee's interest in such Ground Lease may be
transferred to the Purchaser and its successors and assigns through a
foreclosure of the related Mortgage or conveyance in lieu of foreclosure
and, thereafter, may be transferred to another Person by the related
mortgagee and its successors and assigns, upon notice to, but without the
consent of, the related lessor (or, if any such consent is required, either
(1) it has been obtained prior to the Closing Date, or (2) it may not be
unreasonably withheld) provided that such Ground Lease has not been
terminated and all amounts owed thereunder have been paid;
(D) the related lessor is required to give notice of any default under
such Ground Lease by the related lessee to the mortgagee either under the
terms of such Ground Lease or under the terms of a separate estoppel letter
or written agreement;
(E) the related mortgagee is entitled, under the terms of such Ground
Lease or a separate estoppel letter or written agreement, to receive notice
of any default by the related lessee under such Ground Lease, and after any
such notice, is entitled to not less than the time provided to the related
lessee under such Ground Lease to cure such default, which is curable
during such period before the lessor may terminate the Ground Lease; all
rights of the related lessee under the Ground Lease may be exercised by or
on behalf of the mortgagee;
(F) the currently effective term of such Ground Lease (excluding any
extension or renewal which is not binding on the lessor thereunder) extends
not less than 10 years beyond the Maturity Date of such Mortgage Loan;
(G) such Ground Lease does not impose any restrictions on subletting
which the Seller considered to be commercially unreasonable at the
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time of its origination or purchase of such Mortgage Loan or that a prudent
commercial mortgage lender would have considered unreasonable at such date;
(H) to the Seller's knowledge as of the Closing Date, (1) no event of
default has occurred under such Ground Lease and (2) no event has occurred
which, with the passage of time, the giving of notice or both (other than
rental or other payments being due, but not yet delinquent), would result
in a default or an event of default under the terms of such Ground Lease;
(I) the related lessor has agreed in a writing included in the related
Mortgage File that such Ground Lease may not be amended, modified,
cancelled or terminated without the prior written consent of the Seller or
the mortgagee and that any such action without such consent is not binding
upon the mortgagee, its successors and assigns. Unless the mortgagee fails
to cure a default of the lessee under the Ground Lease following notice
thereof from the lessor as set forth in (E) above, the lessor is required
to enter into a new ground lease upon termination of such Ground Lease for
any reason (including, without limitation, rejection of such Ground Lease
in a bankruptcy proceeding);
(J) under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award (other
than in respect of a total or substantially total loss or taking) will be
applied either to (1) the repair or restoration of all or part of the
related Mortgaged Property covered by such Ground Lease, with the mortgagee
or a trustee appointed by it having the right to hold and disburse such
proceeds as such repair or restoration progresses (except where such
Mortgage Loan provides that the related Borrower or its agent may hold and
disburse such proceeds with respect to any loss or taking less than a
stipulated amount not greater than $50,000), or (2) the payment of the
outstanding principal balance of and accrued interest on such Mortgage
Loan; and
(K) there are no existing mortgages on the Fee Interest which can be
foreclosed upon that are not subject to the Ground Lease, and the
provisions of the Ground Lease and/or other documents related thereto and
included as part of the related Mortgage File preclude the creation of any
future mortgage on the Fee Interest that can be foreclosed upon not subject
to the Ground Lease.
(xxx) Deed of Trust. With respect to any related Mortgage that is a deed of
trust or trust deed, a trustee, duly qualified under applicable law to serve
as such, has either been properly designated and currently so serves or may
be substituted in accordance with applicable law. Except in connection with
(A) a trustee's sale after default by the related Borrower or (B) the release
of the related Mortgaged Property following the payment of the related
Mortgage Loan in full, no fees or expenses are payable by the Seller or the
Purchaser to such trustee.
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(xxxi) Cross-Security. The related Mortgaged Property is not collateral or
security for the payment or performance of (A) any other obligations owed to
the originator of such Mortgage Loan or the Seller other than another
Mortgage Loan being sold, transferred and assigned by the Seller under this
Agreement, or (B) to the Seller's knowledge, any other obligations owed to
any Person other than the Seller. The related Note is not secured by any
property other than a Mortgaged Property.
(xxxii) Assignment of Leases, Rents and Profits. Unless the related
Mortgaged Property is occupied by the related Borrower, the related Mortgage
Loan Documents contain the provisions of an Assignment of Leases, Rents and
Profits or include a separate Assignment of Leases, Rents and Profits or
assignment of Assignment of Leases, Rents and Profits. Any related Assignment
of Leases, Rents and Profits incorporated within the related Mortgage or set
forth in a separate Mortgage Loan Document creates on recordation (with the
same priority as the related Mortgage) a valid assignment of, or security
interest in, the right to receive all payments due under the related leases,
if any.
(xxxiii) REMIC. (A) Such Mortgage Loan is principally secured by an
interest in real property and either (1) the fair market value of such real
property was at least equal to 80% of the adjusted issue price of such
Mortgage Loan on the date of origination of such Mortgage Loan or, if such
Mortgage Loan has been "significantly modified" within the meaning of Section
1001 of the Code, on the date of such modification (unless such modification
may be disregarded under Treas. Reg. Sec. 1.860G-2(b)(3)), or (2)
substantially all of the proceeds of such Mortgage Loan were used to acquire
or improve or protect an interest in real property that, at origination of
such Mortgage Loan, was the only security for such Mortgage Loan; (B) such
Mortgage Loan contains no equity participation by the Seller, and neither the
related Note nor the related Mortgage provides for any contingent or
additional interest in the form of participation in the cash flow or proceeds
realized on disposition of the related Mortgaged Property; and (C) such
Mortgage Loan is a "qualified mortgage" as defined in, and for purposes of,
Section 860G(3)(A) of the Code and provides for the payments of interest at a
fixed rate or at a rate described in Treas. Reg. Sec. 1.860G-1(a)(3).
(xxxiv) Environmental Site Assessments. Environmental Site Assessments
(collectively, the "ESAs"), transaction screen assessments, studies or
updates prepared or obtained in connection with the origination of such
Mortgage Loan identified no material adverse environmental conditions or
circumstances anticipated to require any material expenditure with respect to
any Mortgaged Property, except for: (A) those cases where such conditions or
circumstances were investigated further and, based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation; (B) those cases in which an operations and
maintenance plan was recommended by the environmental consultant and such
plan was obtained or an escrow reserve established to cover the estimated
costs of obtaining such plan; (C) those conditions in which soil or
groundwater contamination was suspected or identified and either (1) such
condition or circumstance was remediated or abated prior to the origination
date of the related Mortgage Loan, (2) a "no further action" letter was
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obtained from the applicable regulatory authority, or (3) either an
environmental insurance policy was obtained, a letter of credit provided, an
escrow reserve account established, or an indemnity from the responsible
party was obtained, to cover the estimated costs of any required
investigation, testing, monitoring or remediation; or (D) those cases in
which (1) a leaking underground storage tank or groundwater contamination was
identified to be located on or to have originated from an offsite property,
(2) a responsible party has been identified under applicable law, and (3)
either such condition is not known to have affected the Mortgaged Property or
the responsible party has either received a "no further action" letter from
the applicable regulatory agency, established a remediation fund, or provided
a guaranty or indemnity to the related Borrower.
(xxxv) Notice of Environmental Problem. Other than with respect to any
conditions identified in the ESAs, transaction screen assessments, studies or
updates referred to in Section 2(b)(xxxiv) above, the Seller: (A) has not
received actual notice from any federal, state or other governmental
authority of (1) any failure of the related Mortgaged Property to comply with
any applicable Environmental Laws, or (2) any known or threatened release of
Hazardous Materials on or from such Mortgaged Property in violation of any
applicable Environmental Laws; (B) has not received actual notice from the
related Borrower that (1) such Borrower has received any such notice from any
such governmental authority, (2) such Mortgaged Property fails to comply with
any applicable Environmental Laws, or (3) such Borrower has received actual
notice that there is any known or threatened release of Hazardous Materials
on or from such Mortgaged Property in violation of any applicable
Environmental Laws; or (C) has no actual knowledge that (1) the related
Mortgaged Property fails to materially comply with any applicable
Environmental Laws or (2) there has been any known or threatened release of
Hazardous Materials on or from such Mortgaged Property where such release
falls outside the exceptions (A) through (D) of Section 2(b)(xxxiv) above.
(xxxvi) Recourse. The related Mortgage Loan Documents contain standard
provisions providing for recourse against the related Borrower or a principal
of such Borrower for damages sustained in connection with the Borrower's
fraud, material misrepresentation or misappropriation of any tenant security
deposits, rent, insurance proceeds or condemnation proceeds. The related
Mortgage Loan Documents contain provisions pursuant to which the related
Borrower or a principal of such Borrower has agreed to indemnify the
mortgagee for damages resulting from violations of any applicable
Environmental Laws.
(xxxvii) Environmental Compliance. Each Mortgage Loan contains either a
representation, warranty or covenant that the related Borrower will not use,
cause or permit to exist on the related Mortgaged Property any Hazardous
Materials in violation of any applicable Environmental Laws or an indemnity
with respect to any such violation in favor of the Seller.
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(xxxviii) Inspection The Seller or originator has inspected the related
Mortgaged Property or caused such Mortgaged Property to be inspected within
the 12 months preceding the Closing Date.
(xxxix) Subordinate Debt. Except as has been disclosed in the Mortgage Loan
Characteristics Schedule, the related Mortgage contains a provision for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan in the event that the related Borrower encumbers the related Mortgaged
Property without the prior written consent of the mortgagee thereunder.
(xl) Common Ownership. To Seller's knowledge, no two properties securing
Mortgage Loans are directly or indirectly under common ownership except to
the extent that such common ownership and the ownership structure have been
specifically disclosed in the Mortgage Loan Characteristics Schedule and
Annex A and Annex C to the Prospectus Supplement.
(xli) Operating or Financial Statement. The related Mortgage Loan Documents
require the related Borrower to furnish to the mortgagee at least annually an
operating statement with respect to the related Mortgaged Property or, in the
case of a borrower-occupied Mortgaged Property, a financial statement with
respect to the related Borrower.
(xlii) Litigation. To the best of the Seller's knowledge as of the date of
origination or purchase of such Mortgage Loan, and to the Seller's knowledge
thereafter, there is no pending action, suit, proceeding, arbitration or
governmental investigation with respect to the related Borrower or Mortgaged
Property which if determined adversely to the related Borrower would have a
material adverse effect on the value of the related Mortgaged Property or
such Borrower's ability to continue to perform its obligations under such
Mortgage Loan.
(xliii) Assisted Living Loans and Nursing Home Loans. If the Mortgage Loan
is secured in whole or in part by a Mortgage on a Mortgaged Property operated
as a Facility, based upon due diligence performed in the origination of the
related Mortgage Loan, and to its knowledge as of the date hereof:
(A) All governmental licenses, permits, regulatory agreements or other
approvals or agreements necessary or desirable for the use and operation of
the Facility as intended, including, without limitation, a valid
certificate of need or similar certificate, license, or approval issued by
the applicable department of health for the requisite number of beds, and
approved provider status in any approved provider payment program, were, as
of the related date of origination, held by the related Mortgagor or the
operator of the Facility and were in full force and effect; and
(B) In connection with the most recent governmental inspection of the
Facility (a) the Facility had not received a "Level A" (or equivalent)
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violation that has not been cured to the satisfaction of the applicable
governmental agency, (b) no statement of charges or deficiencies had been
made or penalty enforcement action has been undertaken against the
Facility, its operator or the Mortgagor or against any officer, director or
stockholder of such operator or the Mortgagor by such governmental agency,
(c) there were no violations that threatened the Facility's, the operator's
or the Mortgagor's certification for participation in Medicare or Medicaid
or any other third-party payor program, (d) to the Seller's knowledge, the
Mortgagor and Facility comply with all federal, state and local laws,
regulations, quality and safety standards, accreditation standards and
requirements of the applicable state department of health and (e) there was
no threatened or pending revocation, suspension, termination, probation,
restriction, limitation, or nonrenewal affecting the Mortgagor, such
operator or the Facility or any participation or provider agreement with
any third-party payor to which the Mortgagor or such operator is subject.
(xliv) ARD Loans. With respect to each Mortgage Loan that is an ARD Loan,
it commenced amortizing on its initial scheduled Due Date (or, in the case of
certain interest-only Mortgage Loans, as otherwise set forth in the related
Notes) and provides that: (A) the spread used in calculating its Mortgage
Rate will increase by no more than five percent (5%) in connection with the
passage of its Anticipated Repayment Date; (B) its Anticipated Repayment Date
is of the term specified in the Mortgage Loan Characteristics Schedule and
the Additional Loan Characteristics Schedule following the origination of
such Mortgage Loan; (C) no later than the related Anticipated Repayment Date,
if it has not previously done so, the related Borrower is required to enter
into a "lockbox agreement" whereby all revenue from the related Mortgaged
Property shall be deposited directly into a designated account controlled by
the Servicer; and (D) any cash flow from the related Mortgaged Property that
is applied to amortize such Mortgage Loan following its Anticipated Repayment
Date shall, to the extent such net cash flow is in excess of the Monthly
Payment payable therefrom, be net of budgeted and discretionary (Servicer
approved) capital expenditures.
(xlv) Due-on-Sale. The related Mortgage contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
mortgagee, the related Mortgaged Property subject to such Mortgage is
directly or indirectly transferred or sold; provided that certain of the
Mortgages permit (A) changes in ownership between existing partners and
members, (B) transfers to family members (or trusts for the benefit of family
members), affiliated companies and certain specified individuals and
entities, (C) issuance by the related borrower of new partnership or
membership interests, (D) certain other changes in ownership for estate
planning purposes, or (E) certain other transfers similar in nature to the
foregoing.
(xlvi) Loan Origination; Loan Underwriting. Each Mortgage Loan was
originated by the related Seller, an affiliate of the related Seller or an
originator approved by the related Seller, or was purchased by the related
Seller, and each Mortgage Loan substantially complied with all of the terms,
conditions and requirements of the related
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Seller's underwriting standards in effect at the time of its origination or
purchase of such Mortgage Loan, subject to such exceptions as the related
Seller approved.
(c) Each representation and warranty of the Seller and/or Bridger Funding
set forth in Section 2(a) or 2(b) of this Agreement, to the extent related to
the enforceability of any instrument, agreement or other document or as to
offsets, defenses, counterclaims or rights of rescission related to such
enforceability is qualified to the extent that (i) enforcement may be limited
(A) by bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally, (B) by general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and (C) by any applicable anti-deficiency law or statute; and
(ii) such instrument, agreement or other document may contain certain provisions
which may be unenforceable in accordance with their terms, in whole or in part,
but the unenforceability of such provisions will not (subject to the
qualification in clause (i), above) (A) cause the related Note or the related
Mortgage to be void, (B) invalidate the related Borrower's obligation to pay
interest at the stated interest rate of such Note on, and repay the principal
of, the related Mortgage Loan in accordance with the payment terms of such Note,
such Mortgage and other written agreements delivered to the Seller or Bridger
Funding in connection therewith, (C) invalidate the obligation of any related
guarantor to pay guaranteed obligations with respect to interest at the stated
interest rate of such Note on, and the principal of, such Mortgage Loan in
accordance with the payment terms of such guarantor's written guaranty, (D)
impair the mortgagee's right to accelerate and demand payment of interest at the
stated interest rate of such Note on, and principal of, such Mortgage Loan upon
the occurrence of a legally enforceable default, or (E) impair the mortgagee's
right to realize against the related Mortgaged Property by judicial or, if
applicable, non-judicial foreclosure.
(d) Each of the Seller or Bridger Funding agrees that it shall, at the
request of the Purchaser in connection with the consummation of the
Securitization Transaction, deliver to the Purchaser (i) certified copies of its
articles of organization, operating agreement and a certificate of good standing
dated as of a recent date of the Seller and (ii) an officer's certificate of
each of the Seller and Bridger Funding to the effect that each of its
representations and warranties contained in Section 2 of this Agreement is true
and correct in all material respects as of the Closing Date, except to the
extent that such representation and warranty specifically relates to an earlier
date, in which case such representation was true and correct in all material
respects as of such earlier date.
(e) The Purchaser hereby represents and warrants to the Seller and Bridger
Funding as of the Closing Date that:
(i) Due Organization; Qualification. It is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its duties
and obligations under this Agreement.
(ii) Authority. It has the full power, authority and legal right to execute
and deliver this Agreement (and all agreements executed and delivered by it
in
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connection herewith) and to perform all transactions contemplated by this
Agreement (and all agreements executed and delivered by it in connection
herewith). It has duly authorized the execution, delivery and performance of
this Agreement (and all agreements executed and delivered by it in
connection herewith), and has duly executed and delivered this Agreement
(and all agreements executed and delivered by it in connection herewith).
This Agreement (and each agreement executed and delivered by it in
connection herewith), assuming due authorization, execution and delivery by
each other party hereto (and thereto), constitutes its legal, valid and
binding obligation enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally, by
general principles of equity and by any applicable anti-deficiency laws
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(iii) Solvency. It is solvent and the purchase of the Mortgage Loans will
not cause it to become insolvent.
3. Remedies for Breach of Certain Representations and Warranties.
(a) It is understood and agreed that the representations and warranties set
forth in this Agreement or contained in the certificates of officers of the
Seller, Bridger Funding or the Purchaser submitted pursuant hereto shall survive
the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit
of the Purchaser and the Trustee (for the benefit of the Certificateholders) as
the transferee of the Purchaser, notwithstanding (i) any restrictive or
qualified endorsement on any Note, Assignment of Mortgage, Assignment of Leases,
Rents and Profits or reassignment of Assignment of Leases, Rents and Profits,
(ii) any termination of this Agreement, or (iii) the examination by any Person
of, or failure by any Person to examine, any Mortgage File.
(b) Upon the discovery by the Seller, Bridger Funding or the Purchaser that
(i) a document required to be delivered pursuant to Section 1(c) of this
Agreement in connection with any Mortgage Loan has not been executed or received
or has not been recorded or filed (if required) within the time required for
delivery of such document, appears not to be what it purports to be or has been
torn, mutilated or otherwise defaced (such Mortgage Loan, a "Defective Document
Mortgage Loan") or (ii) a breach of any of the foregoing representations and
warranties set forth in Section 2(b) or a default in the performance of any of
the covenants or other obligations of the Seller under this Agreement has
occurred (a "Breach") which, in the case of either clause (i) or (ii),
materially and adversely affects the interest of the owners of one or more
Mortgage Loans, who may include Certificateholders, the party discovering (x)
that a Mortgage Loan is a Defective Document Mortgage Loan, or (y) the existence
of a Breach (any such Mortgage Loan as described in the preceding clause (x) or
so affected by a Breach as described in preceding clause (y), a "Defective
Mortgage Loan") shall give prompt written notice thereof to the other parties
and to each Rating Agency. Within 85 days of its discovery or its receipt of
notice of any such Defective Mortgage Loan (including such notice given by the
Purchaser, the Trustee, the Servicer or any special servicer or custodian for
the Mortgage Loans), the Seller or Bridger Funding shall (i) promptly cure such
defect or Breach in all material
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respects, or (ii) repurchase the Defective Mortgage Loan or Loans at the
Repurchase Price for such Mortgage Loan or Loans in accordance with the
directions of the owners of such Defective Mortgage Loans; provided, however, if
such defect or Breach cannot be cured within such 85-day period, so long as the
Seller or Bridger Funding, as applicable, shall be actively and diligently
attempting to cure such defect or Breach, such 85-day period shall be extended
for a reasonable period of time in which to effect such cure, but in any event
to a date not more than 180 days from the earlier of the date of Seller's or
Bridger Funding's, as applicable, discovery or its receipt of notice of any
Defective Mortgage Loan, provided such Defective Mortgage Loan is susceptible to
such cure within such period of time; provided, further that no such extension
shall be applicable unless the Seller or Bridger Funding, as applicable,
delivers to the Purchaser (or its successor in interest) an officer's
certificate describing the measures being taken to cure such defect or Breach,
stating that the Seller or Bridger Funding, as applicable, believes such defect
or Breach will be cured within such period. If any Mortgage Loan fails to
constitute a Qualified Mortgage by reason of defective or missing documentation
as described above or a breach of a representation, warranty, or covenant of the
Seller or Bridger Funding pursuant to this Agreement, the Seller or Bridger
Funding shall correct such condition, defect or breach or repurchase such
Mortgage Loan at the Repurchase Price within 85 days of discovery of such
failure and no extension of the 85-day period shall apply. The Repurchase Price
with respect to any Mortgage Loans repurchased by the Seller or Bridger Funding
shall be paid in accordance with the Pooling and Servicing Agreement. It is
understood and agreed that the obligations of the Seller and/or Bridger Funding
set forth in this Section 3(b) to cure or repurchase a Defective Mortgage Loan
constitute the sole remedies available to the Purchaser and its successors and
assigns respecting a breach of the representations and warranties of the Seller
and/or Bridger Funding set forth in Section 2(b). It is understood and agreed
that, in the event that either the Seller or Bridger Funding fully and timely
performs its obligations under this Section 3 with respect to any defect or
Breach, then the Purchaser shall have no other right or remedy against the
Seller or Bridger Funding, or their respective successors and assigns with
respect to such defect or Breach; provided, however, that the foregoing shall
not be deemed to limit the rights and remedies of the Purchaser in the event
that the Seller or Bridger Funding fails to fully and timely perform any of its
obligations under this Section 3 with respect to any defect or Breach, in which
case the Purchaser shall have the right to pursue any remedies it may have in
accordance with the terms of this Agreement, in equity or at law.
Upon any such repurchase of a Mortgage Loan by the Seller or Bridger
Funding, the Purchaser shall execute and deliver, or shall cause the owner of
such Mortgage Loan to execute and deliver, such instruments of sale, transfer or
assignment presented to it by the Seller or Bridger Funding, in each case
without recourse, as shall be necessary to vest in the Seller or Bridger Funding
the legal and beneficial ownership of such Mortgage Loan (including any property
acquired in respect thereof or proceeds of any insurance policy with respect
thereto), and shall deliver, or shall cause such owner to deliver, the related
Mortgage File to the Seller or Bridger Funding or their designee after receipt
of the related Repurchase Price.
(c) Except as expressly set forth in Section 3(b), no provision of this
Agreement shall be interpreted as limiting (or otherwise be deemed to limit) the
right of the Purchaser, its successors or assigns to pursue any remedies it may
have under this Agreement, in
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equity or at law, in connection with any breach by the Seller or Bridger Funding
of any term hereof.
(d) Each of the Seller or Bridger Funding hereby acknowledges the
assignment by the Purchaser to any subsequent purchaser of the Mortgage Loans
and any subsequent purchaser to the Trustee, in its capacity as a trustee under
any Pooling and Servicing Agreement that the Purchaser, any subsequent purchaser
or either of their assigns may enter into, for the benefit of the
Certificateholders, of the representations and warranties contained in this
Agreement and of the obligation of the Seller and Bridger Funding to cure or
repurchase any Defective Mortgage Loans pursuant to this Section 3. The Trustee
or its designee may enforce such obligation as provided in Section 10 hereof.
4. Provision of Information. The Seller shall make available to the
Purchaser or its designees all relevant information reasonably available to the
Seller concerning the Mortgage Loans, the related Mortgaged Properties and the
related Borrowers and the Seller's business, properties and operations, as the
Purchaser may, in its sole discretion reasonably exercised, determine is
necessary in the marketing of the Certificates (including the compliance with
federal securities laws or state "Blue Sky" laws) (such information shall be
referred to as the "Requested Disclosure Information"); provided, however, that
it is understood and agreed that the Requested Disclosure Information shall not
include information as of any date after the Closing Date. As of the date such
Requested Disclosure Information was made available to the Purchaser or its
designees, such Requested Disclosure Information did not contain any untrue
statement by the Seller or any Affiliate thereof of any material fact or any
omission of the Seller or any Affiliate thereof of any information with respect
to any Mortgage Loan, the related Mortgaged Property or the related Borrower (or
the Seller's business, properties and operations) that is necessary to make such
statements with respect to such Mortgage Loan, the related Mortgaged Property or
the related Borrower (or the Seller's business, properties and operations),
taken by themselves and only in the context of the sale of the Mortgage Loans to
the Purchaser, not misleading. The Seller will, upon making available such
Requested Disclosure Information, be deemed to represent that it does not know
or have any reason to know that the Requested Disclosure Information contains
any untrue statement of any material fact or any omission of the Seller or any
Affiliate thereof of any information with respect to any Mortgage Loan, the
related Mortgaged Property or the related Borrower (or the Seller's business,
properties and operations) that is necessary to make such statements with
respect to such Mortgage Loan, the related Mortgaged Property or the related
Borrower (or the Seller's business, properties and operations), [taken by
themselves and only in the context of the sale of the Mortgage Loans to the
Purchaser], not misleading. The Seller agrees that so long as any Underwriter is
required by applicable laws to deliver a prospectus in connection with any sale
of the Certificates, the Seller shall notify the Purchaser or its designee
immediately if any event shall occur or condition shall exist as a result of
which any of the Requested Disclosure Information contains an untrue statement
of a material fact or any omission of any material fact by the Seller or any
Affiliate thereof of any information with respect to any Mortgage Loan, the
related Mortgaged Property or the related Borrower (or the Seller's business,
properties and operations) that is necessary to make the statements by Seller or
any Affiliate with respect to such Mortgage Loan, the related Mortgaged Property
or the related Borrower (or the Seller's business, properties and operations),
taken by themselves and only in the context of the sale of the Mortgage Loans to
the Purchaser, not misleading. The
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Seller understands that the Purchaser or its designee will use the Requested
Disclosure Information in preparing the Registration Statement (including,
insofar as they are required to be filed as part of the Registration Statement,
any Computational Materials), the Prospectus Supplement, the Private Placement
Memorandum and to otherwise sell the Certificates, and that the Purchaser or its
designee shall be entitled to rely on the true, correct and complete nature of
the Requested Disclosure Information and shall have no obligation to
independently verify any of such information furnished or to be furnished by the
Seller hereunder, provided that the Purchaser or its designee has previously
provided a copy of each of the documents referred to above in this sentence to
the Seller for the Seller's review and approval; and provided, further, that the
Seller shall not be required to provide information that specifically relates to
facts existing or events first occurring from and after the Closing Date.
5. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, each
Affiliate thereof and their respective officers and directors, and each person,
if any, who "controls" the Purchaser and its Affiliates within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (collectively, for purposes hereof, the
"Indemnified Parties") against any and all losses, claims, damages, liabilities
or expenses (including, without limitation, the reasonable cost of investigating
and defending against any claims therefor and legal fees and disbursements
incurred in connection therewith except as otherwise provided below), joint or
several, which may be based upon the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law, by contractual
arrangement or otherwise, insofar as such losses, claims, damages, liabilities
or expenses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Prospectus Supplement, the Private Placement Memorandum or, insofar as they are
required to be filed as part of the Registration Statement, any Computational
Materials with respect to the Publicly Offered Certificates, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission (in the case of any Computational Materials, when read in
conjunction with the Prospectus and, in the case of the Private Placement
Memorandum, when read together with the other information specified therein as
being available for review by investors) to state therein a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, but only if and to the extent that
such untrue statement, alleged untrue statement, omission or alleged omission
was made in reliance upon (i) any Requested Disclosure Information furnished to
the Purchaser or its designee, directly or indirectly, by the Seller or approved
by the Seller and used in connection with the preparation of the Prospectus
Supplement, the Private Placement Memorandum or any Computational Materials
(and, if specifically pertaining to a Mortgage Loan, only to the extent that
such untrue statement, omission, or alleged omission relates to the period prior
to the Closing Date and to events occurring and facts existing prior to the
Closing Date) or (ii) any representations, warranties, statements or covenants
of the Seller and/or Bridger Funding contained in this Agreement or any document
or certificate delivered pursuant hereto (the foregoing items (i) and (ii),
collectively, the "Seller's Information"). This indemnity agreement will be in
addition to any liability the Seller may otherwise have.
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<PAGE>
In no case shall the Seller be liable with respect to any claims made
against any of the Indemnified Parties unless an Indemnified Party shall have
notified the Seller in writing of the nature of the claim within a reasonable
time after service of a summons or other first legal process that shall have
been served upon such Indemnified Party, but failure to notify the Seller of any
such claims shall not relieve the Seller from any liability which it may have to
any Indemnified Party otherwise than on account of the indemnity agreement
contained in this Section 5(a). The Seller will be entitled to participate at
its own expense in the defense or, if it so elects promptly after receiving such
notice from any Indemnified Party, to assume the defense of any suit brought to
enforce any such liability with legal counsel chosen by the Seller and
reasonably acceptable to the Indemnified Parties. In the event the Seller elects
to assume the defense of any such suit and retain such legal counsel, any
Indemnified Party that is a defendant in the suit may retain additional legal
counsel but shall bear the legal fees and disbursements of such legal counsel
unless (i) the Seller and such Indemnified Party shall have mutually agreed to
the retention of such legal counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include one or both of the Seller
and such Indemnified Party, and representation of both such parties by the same
legal counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Seller shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the legal fees and disbursements of more than one legal counsel
(in addition to any local counsel necessary to the conduct of defense in such
proceeding or proceedings) for all the Indemnified Parties and that all such
legal fees and disbursements shall be reimbursed by the Seller as they are
incurred. The Seller shall not be liable to indemnify any person for any
settlement of any claim effected without the Seller' consent, which consent
shall not unreasonably be withheld, provided that if any claim is settled with
such consent or if there is a final judgment against any Indemnified Party, the
Seller agrees to indemnify the Indemnified Parties from and against any losses,
claims, damages, liabilities or expenses by reason of such settlement or
judgment. Notwithstanding the immediately preceding sentence, if at any time an
Indemnified Party shall have requested the Seller to reimburse the Indemnified
Party for fees and expenses of counsel retained in accordance with the fourth
sentence of this paragraph, the Seller agrees that it shall be liable for any
settlement of any claim effected without its consent if (x) such settlement is
entered into more than 60 days after the receipt by the Seller of such request
and (y) the Seller shall not have reimbursed such Indemnified Party in
accordance with such request prior to the date of such settlement. The Seller
shall not, without the prior written consent of any Indemnified Party, which
consent shall not unreasonably be withheld, effect any settlement of any pending
or threatened proceeding in respect of which such Indemnified Party is or could
reasonably have been a party and indemnity is or could have been sought
hereunder by such Indemnified Party unless such settlement includes an
unconditional release of such Indemnified Party from all liability relating to
the claims that are the subject matter of such proceeding.
(b) If the indemnification provided for in Section 5(a) above is
unavailable or insufficient to hold harmless an Indemnified Party in respect of
any losses, claims, damages, liabilities or expenses (or actions in respect
thereof) referred to therein, then the Seller shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Seller on the
one hand and such Indemnified Party
29
<PAGE>
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Seller
or by such Indemnified Party and such party's relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
referred to above shall be deemed to include any legal fees and disbursements or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such claim, except where such Indemnified Party
is required to bear such expenses pursuant to this Section 5, which expenses the
Seller shall pay as and when incurred, at the request of such Indemnified Party,
to the extent that the Seller will be ultimately obligated to pay such expenses.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(c) The indemnity and contribution provided for in this Section 5 shall
remain operative and in full force and effect irrespective of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Purchaser or its designees, their respective officers and directors or any
person who controls the Purchaser or its Affiliates, or by or on behalf of the
Seller, its directors and officers or any person who controls the Seller, or
(iii) the acceptance of and payment for any of the Certificates.
6. Opinion of Counsel. The Seller hereby covenants to the Purchaser to
deliver or cause to be delivered to the Purchaser in connection with the
Securitization Transaction (a) opinions of counsel for the Seller (which may be
rendered by the Seller's internal counsel) as to various corporate matters in
form satisfactory to the Purchaser and (b) opinions of counsel for the Seller,
in forms acceptable to the Purchaser, its counsel, and each Rating Agency, as to
such matters as shall be required for the assignment of ratings to the
Certificates or such other interests in the Mortgage Loans offered for sale
(including, without limitation, a "true sale" opinion) (it being agreed that
such opinions or appropriate reliance letters shall expressly provide that each
Rating Agency, each placement agent, each underwriter, the Trustee and any
fiscal agent shall be entitled to rely on such opinions).
7. Cooperation. The Seller hereby agrees to furnish any and all
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans reasonably requested by the Purchaser in order for the Purchaser
to perform any of its obligations or satisfy any of the conditions on its part
to be performed or satisfied pursuant to this Agreement or the transactions
contemplated by the Pooling and Servicing Agreement. The Seller further agrees
that, at the request of the Purchaser, the Seller shall use all commercially
reasonable efforts to obtain from the Borrowers of the Mortgage Loans such
current financial statements and other information as the Purchaser, the
Depositor or any Rating Agency may reasonably request in
30
<PAGE>
connection with the transactions contemplated by this Agreement or the Pooling
and Servicing Agreement.
8. Costs and Expenses. The Seller agrees to pay to the Purchaser its share
(based on the ratio of the aggregate principal amount of the Seller's Mortgage
Loans to the aggregate principal amount of all Mortgage Loans in the
Securitization Transaction) of the transaction costs and expenses with respect
to the Securitization Transaction in accordance with the Loan Seller Agreement.
9. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Purchaser, will be mailed, delivered or
transmitted by facsimile and confirmed to it at the following:
<TABLE>
<CAPTION>
<S> <C>
Clay Lebhar John Mulligan
Investment Banking Commercial Mortgage
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza, 18th Floor One New York Plaza, 15th Floor
New York, New York 10292-2018 New York, New York 10292-2015
Telecopy No.: (212) 778-5099 Telecopy No.: (212) 778-1905
David Rodgers Fred Robustelli, Esq.
Investment Banking Law Department
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza, 18th Floor One New York Plaza, 30th Floor
New York, New York 10292-2018 New York, New York 10292
Telecopy No.: (212) 778-5099 Telecopy No.: (212) 214-7938
If sent to the Seller, will be mailed, delivered or transmitted by facsimile and
confirmed to it at the following:
Robert S. Schoenfeld Clayton B. Gantz
Bridger Commercial Realty Finance LLC Steefel Levitt & Weiss
100 Shoreline Highway 1 Embarcadero Center
Suites 295 & 125 30th Floor
Mill Valley, CA 94941 San Francisco, CA 94111
Telecopy No.: (415) 331-3390 Telecopy No.: (415) 788-2019
If sent to Bridger Funding, will be mailed, delivered or transmitted by
facsimile and confirmed to it at the following:
Robert S. Schoenfeld Clayton B. Gantz
Bridger Commercial Funding LLC Steefel Levitt & Weiss
100 Shoreline Highway 1 Embarcadero Center
Suites 295 & 125 30th Floor
Mill Valley, CA 94941 San Francisco, CA 94111
31
<PAGE>
Telecopy No.: (415) 331-3390 Telecopy No.: (415) 788-2019
If sent to the Rating Agencies, will be mailed, delivered or transmitted by
facsimile and confirmed to the respective Rating Agency at the following:
Joan Biro Nicholas Levidy
Standard & Poors Moody's Investors Service, Inc.
26 Broadway 99 Church Street
New York, New York 10003 New York, New York 10007
Telecopy No.: (212) 412-0539 Telecopy No.: (212) 553-1350
or such other address as may hereafter be furnished to or by the other party or
any Rating Agency by like notice.
</TABLE>
10. Trustee as Beneficiary. The representations, warranties and agreements
made by the Seller and Bridger Funding in this Agreement are made for the
benefit of the Depositor, the Trustee and the Certificateholders and may be
enforced by the Depositor and the Trustee to the same extent that the Purchaser
has rights against the Seller and Bridger Funding under this Agreement in
respect of the representations, warranties and agreements made by the Seller and
Bridger Funding herein, and all such representations and warranties shall
survive delivery of the respective Mortgage Loan Documents to any subsequent
purchaser and to the Trustee and to the Servicer.
11. Successors and Assigns. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and assigns,
and no other person will have any right or obligation hereunder, other than as
otherwise expressly provided herein.
12. Governing Law. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
13. Miscellaneous.
(a) Subject to Section 13(b) hereof, neither this Agreement nor any term
hereof may be amended, modified, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such amendment,
modification, waiver, discharge or termination is sought.
(b) In the event the Underwriting Agreement is terminated pursuant to a
failure of a condition precedent set forth therein, this Agreement shall
automatically terminate, and thereafter no party to this Agreement shall have
any further rights or obligations hereunder other than pursuant to any provision
which expressly provides that it survives the termination of this Agreement.
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<PAGE>
(c) Subsequent to any Securitization Transaction, this Agreement shall not
be changed in any manner which would have a material adverse effect on the
Certificateholders without the prior written consent of the Trustee. Prior to
the execution of any amendment to this Agreement, the Trustee shall be entitled
to receive and rely conclusively upon an opinion of counsel at the expense of
the party requesting such amendment stating that the execution of such amendment
is authorized or permitted by this Agreement. The Trustee may, but shall not be
obligated to, consent to any amendment which affects the Trustee's own rights,
duties or immunities under this Agreement.
(d) This Agreement may be executed in any number of counterparts, each of
which shall, for all purposes, be deemed to be an original and all of which
shall together constitute but one and the same instrument.
(e) If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then, to the
extent permitted by applicable law, 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.
(f) This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof, except the Securitization
Agreement.
(g) It is the express intent of the parties hereto that the conveyance
contemplated by this Agreement be, and be treated for all purposes as, a sale by
the Seller of all the Seller's right, title and interest in and to the Mortgage
Loans. It is, further, not the intention of the parties that such conveyance be
deemed a pledge of the Mortgage Loans by the Seller to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans are held to continue to be property of the
Seller then (i) this Agreement shall also be deemed to be a security agreement
under applicable law; (ii) the transfer of the Mortgage Loans provided for
herein shall be deemed to be a grant by the Seller to the Purchaser of a first
priority security interest in all of the Seller's right, title and interest in
and to the Mortgage Loans and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property; (iii) the possession by the Purchaser or any successor thereto
of the related Notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the Purchaser's security
interest pursuant to Section 9-305 of the New York Uniform Commercial Code and
the Uniform Commercial Code of any other applicable jurisdiction; and (iv)
notifications to Persons holding such property, and acknowledgments, receipts or
confirmations from Persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser or any
successor thereto for the purpose of perfecting such security interest under
applicable law. Any assignment of the interest of the Purchaser pursuant to any
provision hereof shall also be deemed to be an assignment of any security
interest created hereby.
33
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[Signatures on Next Page]
34
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
BRIDGER COMMERCIAL REALTY
FINANCE LLC
By:______________________________
Name:
Title:
BRIDGER COMMERCIAL FUNDING LLC
By:______________________________
Name:
Title:
PRUDENTIAL SECURITIES CREDIT CORP.
By:______________________________
Name:
Title:
35
<PAGE>
ANNEX A
MORTGAGE LOAN CHARACTERISTICS SCHEDULE
[See Attached Pages]
Annex A-2-1
<PAGE>
ANNEX B
CERTAIN DEFINED TERMS
"Additional Loan Characteristics Schedule": As defined in the Recitals.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled by" have meanings correlative to the foregoing.
"Agreement": As defined in the Preamble.
"Appraised Value": With respect to any Mortgaged Property, the appraised
value of such Mortgaged Property as determined by an appraisal thereof made not
more than one year prior to the origination date of the related Mortgage Loan
and reviewed by the Seller.
"Assignment of Leases, Rents and Profits": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Borrower, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered by the Borrower, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of mortgage without recourse,
notice of transfer or equivalent instrument, in recordable form, which is
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording.
"Borrower": With respect to each Mortgage Loan, any obligor on any related
Note.
"Breach": As defined in Section 3(b).
"Bridger Funding": As defined in the Preamble.
"CERCLA": Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. (Section) 9601 et seq.).
"Certificateholders": As defined in the Recitals.
"Certificates": As defined in the Recitals.
Annex-B-1
<PAGE>
"Closing Date.": As defined in Section 1(b).
"Commission": Securities and Exchange Commission.
"Computational Materials": As defined in the no-action letter dated May 20,
1994, issued by the Division of Corporation Finance of the Commission to Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated and Kidder
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Associates.
"Custodian": As defined in Section 1(d).
"Cut-off Date": As defined in Section 1(a).
"Defective Mortgage Loan": As defined in Section 3(b).
"Defective Document Mortgage Loan": As defined in Section 3(b).
"Depositor": As defined in the Recitals.
"Due Date": With respect to any Mortgage Loan, the date on which scheduled
payments are due on such Mortgage Loan (without regard to grace periods), such
day being for all Mortgage Loans the first day of each month.
"Environmental Law": Any environmental law, ordinance, rule, regulation or
order of a federal, state or local governmental authority, including, without
limitation, CERCLA, the Hazardous Material Transportation Act, as amended (49
U.S.C. (Section) 1801 et seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. (Section) 6901 et seq.), the Federal Water Pollution Control
Act, as amended (33 U.S.C. (Section) 1251 et seq.), the Clean Air Act, as
amended (42 U.S.C. (Section) 7401 et seq.) and the regulations promulgated
pursuant thereto.
"Environmental Report": With respect to each Mortgaged Property, the
environmental audit report or reports required in connection with the
origination of the related Mortgage Loan.
"Fee Interest": As defined in Section 2(b)(xxxi).
"Ground Lease": As defined in Section 2(b)(xxxi).
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA, or any other Environmental Laws now existing, and
specifically including, without limitation, asbestos and asbestos-containing
materials, polychlorinated biphenyls, radon gas, petroleum and petroleum
products, urea formaldehyde and any substances classified as being "in
inventory", "usable work in process" or similar classification which would, if
classified as unusable, be included in the foregoing definition.
Annex-B-2
<PAGE>
"Legal Summary": With respect to any Mortgage Loan, the "Legal Summary"
prepared by the related Seller in connection with the origination of such
Mortgage Loan, substantially in the form of the sample Legal Summary previously
submitted to the Purchaser, with all blanks completed.
"Loan Agreement": With respect to any Mortgage Loan, the loan agreement, if
any, between the Seller and the Borrower, pursuant to which such Mortgage Loan
was made.
"Maturity Date": With respect to any Mortgage Loan, the maturity date as
set forth in the applicable Mortgage Loan Characteristics Schedule.
"Moody's": Moody's Investors Service, Inc., and its successors in interest.
"Mortgage File": As defined in Section 1(c).
"Mortgage Loan Characteristics Schedule": As defined in the Recitals.
"Mortgage Loan Control #": With respect to any Mortgage Loan, the "Control
Number" assigned to such Mortgage Loan for purposes of the Securitization
Transaction as set forth on the applicable Mortgage Loan Characteristics
Schedule.
"Mortgage Loan Documents": Any and all documents contained in the Mortgage
File and the Servicing File.
"Mortgage Loans": As defined in the Recitals.
"Mortgaged Property": The underlying property securing a Mortgage Loan,
consisting of a fee simple or leasehold estate in a parcel of land improved by a
commercial property, together with any personal property, fixtures, leases and
other property or rights pertaining thereto.
"Mortgage Rate": With respect to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan (in the absence of a default), as
set forth in the applicable Mortgage Loan Characteristics Schedule.
"Note": With respect to any Mortgage Loan as of any date of determination,
the note or other evidence of indebtedness and/or agreements evidencing the
indebtedness of the related Borrower under such Mortgage Loan, including any
amendments or modifications, or any renewal or substitution notes, as of such
date.
"Originator": With respect to a Mortgage Loan, the originator of such
Mortgage Loan, as identified in the Mortgage Loan Characteristics Schedule.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
Annex-B-3
<PAGE>
"Placement Agents": As defined in the Recitals.
"Pooling and Servicing Agreement": As defined in the Recitals.
"Private Placement Memorandum": The Private Placement Memorandum relating
to the Privately Offered Certificates dated July 22, 1999.
"Prospectus": The prospectus dated October 29, 1998, as supplemented by a
prospectus supplement to be dated on or about July 22, 1999 (the "Prospectus
Supplement"), relating to the Publicly Offered Certificates.
"PSI": As defined in the Recitals.
"Purchaser": As defined in the Preamble.
"Qualified Mortgage": 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 Regulations 1.860G-2(f)(2) that treats a defective obligation as a
qualified mortgage), or any substantially similar successor provision.
"Rating Agency": Each of S&P or Moody's.
"Registration Statement": The registration statement No. 64765 filed by the
Purchaser on Form S-3 and declared effective on October 29, 1998.
"Requested Disclosure Information": As defined in Section 4.
"Reserve Accounts": As defined in Section 1(a).
"S&P": Standard & Poor's Ratings Services.
"Securities Act": As defined in the Recitals.
"Securitization Agreement": As defined in the Recitals.
"Securitization Transaction": As defined in the Recitals.
"Seller": As defined in the Preamble.
"Servicer": As defined in the Recitals.
"Special Servicer": As defined in the Recitals.
"Trustee": As defined in the Recitals.
"Trust Fund": As defined in the Recitals.
"Underwriters": As defined in the Recitals.
Annex-B-4
<PAGE>
ANNEX C
DISCLOSURES
Annex C-1
<PAGE>
EXHIBIT G-2
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT II (this
"Agreement") dated July __, 1999, is between GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., a Delaware corporation (the "Seller"), and PRUDENTIAL SECURITIES
SECURED FINANCING CORPORATION, a Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller has originated or otherwise acquired
certain fixed rate mortgage loans;
WHEREAS, the Purchaser is simultaneously acquiring certain
fixed rate mortgage loans from Prudential Securities Credit Corp., an Affiliate
of the Purchaser, pursuant to a separate Mortgage Loan Purchase and Sale
Agreement I, dated July __, 1999;
WHEREAS, the Seller desires to sell to Purchaser on the
Closing Date (as hereinafter defined), and the Purchaser desires to purchase
from the Seller, certain mortgage loans (collectively, the "Mortgage Loans"),
all of which are described in, and set forth in, the schedule attached hereto as
Annex A (the "Mortgage Loan Characteristics Schedule");
WHEREAS, the Purchaser intends to deposit the Mortgage Loans
in a trust fund (the "Trust Fund"), the beneficial ownership of which will be
evidenced by the Commercial Mortgage Pass-Through Certificates, Series 1999-C2,
Class A-1, Class A-2, Class A-EC1, Class A-EC2, 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 and Class R-II (collectively, the "Certificates") issued to certain
purchasers of the Certificates (collectively, the "Certificateholders") pursuant
to the Pooling and Servicing Agreement dated as of July 1, 1999 (the "Pooling
and Servicing Agreement") by and among the Purchaser, as depositor (in such
capacity, the "Depositor"), National Realty Funding L.C., as servicer (in such
capacity, the "Servicer") and special servicer (in such capacity, the "Special
Servicer"), and The Chase Manhattan Bank, as trustee (in such capacity, the
"Trustee") (capitalized terms used herein and not defined herein or in Annex B
attached hereto shall have the respective meanings ascribed to such terms in the
Pooling and Servicing Agreement);
WHEREAS, the Purchaser intends to sell the Class A-1, Class
A-2, Class B, Class C, Class D, Class E and Class F Certificates (collectively,
the "Publicly Offered Certificates") registered under the Securities Act of
1933, as amended (the "Securities Act") to Prudential Securities Incorporated
("PSI"), and NatWest Limited, as agent for National Westminster Bank Plc.
("GCM"), as underwriters (in such capacities, the "Underwriters") pursuant to an
Underwriting Agreement to be dated the date hereof (the "Underwriting
Agreement");
WHEREAS, the Purchaser intends to sell the Class A-EC1, Class
A-EC2, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class R-I and Class R-II Certificates (the "Privately Offered
Certificates") to PSI and GCM, as placement agents (in such capacities, the
"Placement Agents"), pursuant to a Certificate Purchase Agreement to be dated on
<PAGE>
or about the date hereof (the "Certificate Purchase Agreement"), as described in
a Private Placement Memorandum relating thereto, to be dated the date hereof
(the "Private Placement Memorandum"); and
WHEREAS, the Depositor, in reliance on the representations,
warranties and covenants of the parties contained herein, has agreed to enter
into and effect the Securitization Transaction, on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals,
which are incorporated into the operative provisions of this Agreement by this
reference, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto
hereby agree as follows:
1. Purchase Proceeds; Purchase and Sale; Delivery of Mortgage
Files.
(a) On the Closing Date, the Seller hereby agrees to
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, and the Purchaser agrees to purchase all of the Seller's right, title
and interest in and to the Mortgage Loans and the related mortgage loan
documents (collectively, the "Mortgage Loan Documents"), including, without
limitation: (i) all scheduled payments of interest and principal due on or with
respect to each Mortgage Loan after July 1, 1999 (the "Cut-off Date"); (ii) all
other payments of interest and principal received on or with respect to each
Mortgage Loan after the Cut-off Date, other than any such payments of interest
or principal which were allocable to a period on or prior to the Cut-off Date;
(iii) all of the Seller's right, title and interest in and to the proceeds of
any related title, hazard or other insurance policies received on or with
respect to any Mortgage Loan after the Cut-off Date; and (iv) all reserve
accounts and escrow accounts, if any, established pursuant to the related
Mortgage Loan Documents (collectively, the "Reserve Accounts"), and all of the
Seller's right, title and interest in and to the funds therein.
(b) The Purchaser shall purchase the Mortgage Loans and
the Mortgage Loan Documents and pay to the Seller an amount of the purchase
proceeds determined in accordance with that certain Loan Seller Agreement, dated
May 24, 1999, between the Seller, National Realty Finance L.C. and Bridger
Commercial Realty Finance LLC (the "Loan Seller Agreement"). The Purchase
Proceeds shall be paid to the Seller by wire transfer in immediately available
funds on the date of the consummation of the Securitization Transaction (the
"Closing Date") (or by such other method as the Purchaser and the Seller may
agree), with such later adjustments as provided for in the Loan Seller
Agreement. The closing for the purchase and sale of the Mortgage Loans shall
take place at the offices of Latham & Watkins, 885 Third Avenue, New York, New
York 10022.
(c) The Seller hereby agrees to deliver to the
Purchaser or its designee, within the respective time periods described below,
the following documents or instruments with respect to each Mortgage Loan:
(i) the original of the related Note, endorsed
by the Seller in blank or in the following form: "Pay to the order of
The Chase Manhattan Bank, as Trustee, for
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the registered holders of Prudential Securities Secured Financing
Corporation Commercial Mortgage Pass-Through Certificates, Series 1999
C2, without recourse", which the Purchaser or its designee is
authorized to complete and which Note and all endorsements thereof
shall show a complete chain of endorsement from the Originator to the
Seller;
(ii) (a) the related original recorded Mortgage
or a copy thereof certified by the related title insurance company,
public recording office or closing agent to be in the form in which
executed and submitted for recording, (b) the related original recorded
Assignment of Mortgage from the Originator to the Seller, or a copy
thereof certified by the related title insurance company, public
recording office or closing agent to be in the form in which executed
and submitted for recording, and (c) the related original Assignment of
Mortgage executed by the Seller in blank, which the Purchaser or its
designee is authorized to complete (and but for the insertion of the
name of the assignee and any related recording information which is not
yet available to the Seller, is in suitable form for recordation in the
jurisdiction in which the related Mortgaged Property is located);
(iii) (a) if the related security agreement is
separate from the Mortgage, the original security agreement or a
counterpart thereof, (b) if the security agreement is not assigned
under the Assignments of Mortgage described in clause (ii) above, the
related original assignment of such security agreement from the
Originator to the Seller or a counterpart thereof, and (c) the related
original assignment of such security agreement executed by the Seller
in blank, which the Purchaser or its designee is authorized to
complete;
(iv) (a) a copy of each Form UCC-1 financing
statement, if any, filed with respect to personal property constituting
a part of the related Mortgaged Property, (b) a copy of each Form UCC-2
or UCC-3 assignment, if any, of such financing statement to the Seller
from the Originator, and (c) a copy of each Form UCC-2 or UCC-3
assignment, if any, of such financing statement executed by the Seller
in blank, which the Purchaser or its designee is authorized to complete
(and but for the insertion of the name of the assignee and any related
filing information which is not yet available to the Seller, is in
suitable form for filing in the filing office in which such financing
statement was filed);
(v) the related original of the Loan
Agreement, if any, relating to such Mortgage Loan or a counterpart
thereof;
(vi) the related original lender's title
insurance policy (or the original pro forma title insurance policy),
together with any endorsements thereto;
(vii) if any related Assignment of Leases, Rents
and Profits is separate from the Mortgage, (a) the original recorded
Assignment of Leases, Rents and Profits or a copy thereof certified by
the related title insurance company, public recording office or closing
agent to be in the form in which executed and submitted for recording,
(b) the
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related original recorded reassignment of such instrument, if any, from
the Originator to the Seller or a copy thereof certified by the related
title insurance company, public recording office or closing agent to be
in the form in which executed and submitted for recording, and (c) the
related original reassignment of such instrument, if any, executed by
the Seller in blank, which the Purchaser or its designee is authorized
to complete (and but for the insertion of the name of the assignee and
any related recording information which is not yet available to the
Seller, is in suitable form for recordation in the jurisdiction in
which the related Mortgaged Property is located) (any of which
reassignments, however, may be included in a related Assignment of
Mortgage and need not be a separate instrument);
(viii) if any related assignment of contracts is
separate from the Mortgage, the original assignment of contracts or a
counterpart thereof, and if the assignment of contracts is not assigned
under the Assignments of Mortgage described in clause (ii) above, the
related original reassignment of such instrument from the Originator to
the Seller or a counterpart thereof and the related original
reassignment of such instrument executed by the Seller in blank, which
the Purchaser or its designee is authorized to complete;
(ix) with respect to the related Reserve
Accounts, if any, a copy of the original of any separate agreement with
respect thereto between the related Borrower and the Originator;
(x) the original of any other written agreement,
instrument or document securing such Mortgage Loan, including, without
limitation, originals of any guarantees with respect to such Mortgage
Loan or the original letter of credit, if any, with respect thereto,
together with any and all amendments thereto, including, without
limitation, any amendment which entitles the Purchaser or its designee
to draw upon such letter of credit, and the original of each instrument
or other item of personal property given as security for a Mortgage
Loan possession of which by a secured party is necessary to a secured
party's valid, perfected, first priority security interest therein,
together with all assignments or endorsements thereof necessary to
entitle the Purchaser or its designee to enforce a valid, perfected,
first priority security interest therein;
(xi) with respect to the related Reserve
Accounts, if any, (a) a copy of the UCC-1 financing statements, if any,
submitted for filing with respect to the Originator's security interest
in such Reserve Accounts and all funds contained therein, (b) a copy of
each Form UCC-2 or UCC-3 assignment, if any, of such financing
statement from the Originator to the Seller, and (c) a copy of each
Form UCC-2 or UCC-3 assignment, if any, of such financing statement
executed by the Seller in blank which the Purchaser or its designee is
authorized to complete (and but for the insertion of the name of the
assignee and any related filing information which is not yet available
to the Seller is in suitable form for filing in the filing office in
which such financing statement was filed); and
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(xii) copies of any and all amendments,
modifications and supplements to, and waivers related to, any of the
foregoing.
Such documents and instruments relating to each Mortgage Loan
are collectively referred to herein as the "Mortgage File". In connection with
the Seller's delivery of Mortgage Loan Documents in accordance with this Section
1(c), the Seller hereby authorizes the Purchaser or its designee to complete
each endorsement or assignment in blank appearing thereon in such manner as the
Purchaser or its designee shall determine in the exercise of its sole discretion
(provided that such endorsement or assignment will be without recourse,
representation or warranty except as expressly set forth in this Agreement). In
addition, all funds held by the Seller in the Reserve Accounts shall be
delivered to the Purchaser or its designee on or before the Closing Date.
If the Seller cannot deliver, or cause to be delivered, as to
any of the Mortgage Loans, the original or a copy of any of the documents and/or
instruments referred to in this Section 1(c)(ii)(a) or (b), (iv)(a) or (b),
(vii)(a) or (b), (xi)(a) or (b) and (xii), with (if appropriate) evidence of
recording or filing, as the case may be, thereon, solely because of a delay
caused by the public recording or filing office where such document or
instrument was submitted for recording or filing, the delivery requirements set
forth above shall be deemed to have been satisfied as to such missing document
or instrument, and such missing document or instrument shall be deemed to have
been included in the related Mortgage File, provided that the Seller has
delivered to the Purchaser or its designee on or before the Closing Date a copy
of such document or instrument (without evidence of recording or filing thereon,
but certified (which certificate may relate to multiple documents and/or
instruments) by the Seller to be a true and complete copy of the original
thereof submitted for recording or filing, as the case may be), and the Seller
shall deliver to or at the direction of the Purchaser or its designee, promptly
following the receipt thereof, the original of such missing document or
instrument (or a copy thereof) with (if appropriate) evidence of recording or
filing, as the case may be, thereon. If the Seller cannot deliver, or cause to
be delivered, as to any of the Mortgage Loans, the original of any of the
documents referred to in clause 1(c)(ii)(a) or (b) or (vii)(a) or (b) solely
because the public recording office retains the original assignment, then the
Seller, at its expense, shall deliver to the Purchaser or its designee a copy of
the recorded original. If the Seller cannot deliver, or cause to be delivered,
as to any of the Mortgage Loans, the original or a copy of the related lender's
title insurance policy referred to in clause (vi) solely because such policy has
not yet been issued, the delivery requirements set forth above shall be deemed
to be satisfied as to such missing document, and such missing document shall be
deemed to have been included in the related Mortgage File, provided that the
Seller has delivered to the Purchaser or its designee on or before the Closing
Date a commitment for title insurance "delivered" at the closing of such
Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser or its designee, promptly following the receipt thereof, the original
lender's title insurance policy (or a copy thereof).
Notwithstanding the immediately preceding paragraph, the
failure to deliver the originals or copies of any of the documents or
instruments referred to in this Section 1(c)(ii)(a) or (b), (iv)(a) or (b),
(vii)(a) or (b), (xi)(a) or (b) and (xii) within 120 days after the Closing Date
shall cause the related Mortgage Loan to become a Defective Document Mortgage
Loan under Section 3 hereof.
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In addition, the Seller shall be required to deliver to the
Purchaser or its designee all other Mortgage Loan Documents related to such
Mortgage Loan that are not required to be delivered pursuant to clauses (i)
through (xii) above, including without limitation a copy of the Management
Agreement, if any, for the related Mortgaged Property; a copy of the related
ground lease, as amended, if any, for such Mortgaged Property; any and all
amendments, modifications and supplements to, and waivers related to, any of the
foregoing; copies of the related Appraisals, surveys, environmental reports,
leases and other similar documents; and any other written agreements related to,
or documents obtained or maintained in connection with the origination of, such
Mortgage Loan.
(d) The Mortgage Loans shall be sold to the Purchaser
on a servicing-released basis. In accordance with the Pooling and Servicing
Agreement, the Servicer shall assume responsibility for the servicing of each
Mortgage Loan immediately upon the Closing Date. The Seller shall cooperate in
all reasonable respects with the Purchaser and the Servicer in connection with
such transfer of servicing responsibilities effective on the Closing Date. The
Seller and the Purchaser acknowledge that certain third parties currently act as
custodian with respect to the Mortgage Loans. Effective upon deposit of the
Mortgage Loans in the Trust Fund on the Closing Date, the Trust Fund shall
appoint The Chase Manhattan Bank to act as custodian (in such capacity, the
"Custodian") for the Trust Fund with respect to the original Mortgage Files
pursuant to the Pooling and Servicing Agreement. The Seller agrees to cooperate
with the Purchaser and the Custodian in connection with the transfer of the
Mortgage Files to the Custodian and to provide such documents, information and
instructions as shall be reasonably necessary or convenient with respect
thereto. Effective on the Closing Date, the Seller shall provide the Purchaser
(or the Servicer or other designee of the Purchaser) with copies of the Mortgage
Files and specific assignments of the Mortgage Loan Documents pursuant to
Section 1 above and such other documents and information as the Purchaser shall
reasonably request.
2. Representations and Warranties.
(a) The Seller hereby represents and warrants to the
Purchaser and its successors and assigns as provided in this Agreement (subject
to the qualifications with respect to matters of enforceability set forth below
in Section 2(c)) as of the date hereof and as of the Closing Date that:
(i) Due Organization; Qualification. It is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan and the
assignment thereof to the Purchaser as herein provided and to perform
its duties and obligations under this Agreement.
(ii) Authority. It has the full power,
authority and legal right to execute and deliver this Agreement (and
all agreements executed and delivered by it in connection herewith) and
to perform all transactions contemplated by this Agreement (and all
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agreements executed and delivered by it in connection herewith). It has
duly authorized the execution, delivery and performance of this
Agreement (and all agreements executed and delivered by it in
connection herewith), and has duly executed and delivered this
Agreement (and all agreements executed and delivered by it in
connection herewith). This Agreement (and each agreement executed and
delivered by it in connection herewith), assuming due authorization,
execution and delivery by each other party hereto (and thereto),
constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally, by general principles
of equity and by any applicable anti-deficiency laws (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
(iii) No Conflicts. Neither the execution and
delivery of this Agreement nor the fulfillment of or compliance with
the terms and conditions of this Agreement by it will (A) conflict with
or result in a breach of any of the terms, conditions or provisions of
its certificate of incorporation, as amended, or other organizational
documents or any agreement or instrument to which the Seller is now a
party or by which it (or any of its properties) is bound, or constitute
a default or result in an acceleration of indebtedness under any of the
foregoing; (B) conflict with or result in a breach of any legal
restriction if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or any Mortgage Loan, or (2) for it to
perform its duties and obligations under this Agreement (or any
agreement executed and delivered by it in connection herewith); (C)
result in the violation of any law, rule, regulation, order, judgment
or decree to which it (or any of its properties) is subject if
compliance therewith is necessary (1) to ensure the enforceability of
this Agreement, or (2) for it to perform its duties and obligations
under this Agreement (or any agreement executed and delivered by it in
connection herewith); or (D) result in the creation or imposition of
any lien, charge or encumbrance that would have a material adverse
effect upon any of its properties pursuant to the terms of any
mortgage, deed of trust, contract or other instrument or materially
impair the ability of the Purchaser to realize on any Mortgage Loan.
(iv) Solvency. It is solvent and the execution,
delivery and performance of this Agreement (A) will not cause it to
become insolvent, and (B) is not intended by it to hinder, delay or
defraud any of its creditors.
(v) No Consent Required. No consent, approval,
authorization or order of, or registration or filing with, or notice
to, any court or governmental agency or body having jurisdiction or
regulatory authority over it (or any of its properties) is required for
(A) its execution and delivery of this Agreement (and each agreement
executed and delivered by it in connection herewith) or (B) the
consummation by it of the transactions contemplated by this Agreement
(and each agreement executed and delivered by it in connection
herewith) or, to the extent so required, such consent, approval,
authorization, order, registration, filing or notice has been obtained,
made or given (as applicable), except that (1) it may not be duly
qualified to transact business as a foreign corporation or licensed in
one or more states if such qualification or licensing is not necessary
for it to perform its duties and obligations under this Agreement (or
any agreement executed and delivered by it in connection herewith) and
(2) it makes no
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representation with respect to any required registration under the
Securities Act or any state securities or "Blue Sky" laws in connection
with the Securitization Transaction.
(vi) Ability to Perform. It does not believe,
nor does it have any reason or cause to believe, that it cannot perform
each and every covenant of it contained in this Agreement (or any
agreement executed and delivered by it in connection herewith).
(vii) No Litigation Pending. There are no
actions, suits or proceedings with respect to which it has received
service of process or, to its knowledge, threatened against it which
draw into question the validity of this Agreement or which (if decided
adversely to it), either in any one instance or in the aggregate, would
result in any material adverse change in its business, operations, or
financial condition or would materially impair its ability to perform
its duties and obligations under this Agreement (or any agreement
executed and delivered by it in connection herewith).
(viii) Ordinary Course of Business. The consummation
of the transactions contemplated by this Agreement (and each agreement
executed and delivered by the Seller in connection herewith) is in the
ordinary course of business of the Seller, and the sale, transfer,
assignment and conveyance of the Notes and the Mortgages by the Seller
pursuant to this Agreement are not subject to the bulk transfer or any
similar statutory provisions in effect in any applicable jurisdiction.
(ix) No Brokers. It has not dealt with any
Person (other than the Purchaser) that may be entitled, by reason of
any act or omission by it, to any commission or compensation in
connection with this Agreement or the transactions contemplated hereby.
(x) No Untrue Information. Insofar as relates
to the Mortgage Loans or the Seller, no statement, report, or other
document relating to any Mortgage Loan furnished by or on behalf of the
Seller or any Affiliate thereof in writing (including electronic
media), specifically identified in writing (including electronic media)
as being furnished for use in connection with the preparation of the
Prospectus or Private Placement Memorandum, contains any untrue
statement by the Seller or any Affiliate thereof of any material fact
or an omission by the Seller or any Affiliate thereof of a material
fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading.
(xi) No Default. It is not in default or breach
of any agreement or instrument to which it is now a party or by which
it (or any of its properties) is bound which breach or default would
materially and adversely affect its ability to perform its obligations
under this Agreement.
(b) The Seller (with respect to each Mortgage Loan unless
otherwise indicated) hereby represents and warrants to the Purchaser and its
successors and assigns as provided in this Agreement (subject to the
qualifications with respect to matters of enforceability set forth below in
Section 2(c)) that as of the date specified below or, if no such date is
specified,
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as of the date hereof, and as of the Closing Date and subject to the exceptions
disclosed on Annex C attached hereto:
(i) Mortgage Loan Characteristics. The
information set forth in the Mortgage Loan Characteristics Schedule is
true, correct and complete in all material respects; provided, however,
that with respect to the information set forth with respect to each
Mortgage Loan under the captions "Physical Occupancy %," "Occupancy As
of Date," "1996 NOI," "1997 NOI," "1998 NOI," "Underwritten NOI,"
"Underwritten Net Cash Flow" and "Underwritten NOI DSCR", the Seller
represents only that such information is a correct and accurate
reproduction or derivation, as adjusted by the Seller in accordance
with its customary underwriting practices and procedures, of the
information provided to it by the related Borrower (or an affiliate or
principal thereof) and takes no responsibility for the accuracy or
completeness of any such information provided by the related Borrower
(or such affiliate or principal); provided, further, however, that the
Seller has no actual knowledge that such information is incorrect,
inaccurate or incomplete following the reasonable and customary due
diligence performed by the Seller in connection with its origination or
purchase of the Mortgage Loans.
(ii) Domestic Borrower. The related Borrower is
an individual who is a citizen of, or an entity organized under the
laws of, a state of the United States of America.
(iii) Single-Purpose, Bankruptcy Remote Entity.
Each Borrower of a Mortgage Loan in excess of $25,000,000 is an entity
which has represented in connection with the origination of the
Mortgage Loan, or whose organizational documents as of the date of
origination of the Mortgage Loan provide that so long as the Mortgage
Loan is outstanding it will be a single-purpose entity whose activities
and ability to incur debt are restricted by the applicable Mortgage or
the organizational documents in a manner intended to make the
likelihood of bankruptcy proceedings being commenced by or against such
Borrower remote, and as to which the Borrower has delivered an opinion
of counsel concerning substantive non-consolidation and as to which the
Borrower has at least one independent director. For this purpose,
"single-purpose entity" shall mean a Person, other than an individual,
which does not engage in any business unrelated to the related
Mortgaged Property and its financing, does not have any assets other
than those related to its interest in such Mortgaged Property or its
financing, or any indebtedness other than as permitted by the related
Mortgage or the other Mortgage Loan Documents, has its own books and
records separate and apart from any other Person and holds itself out
as being a legal entity, separate and apart from any other Person.
(iv) Delivery of Mortgage Loans Documents. The
Seller has caused or will cause to be delivered to the Purchaser (or
its designee) within the time period prescribed in Section 1 each of
the documents comprising the Mortgage File for such Mortgage Loan.
(v) Payment Current. All payments required to
be made with respect to such Mortgage Loan under the terms of the
related Note or the related Mortgage
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(inclusive of any applicable grace or cure period) up to the Closing
Date have been made. Within the twelve months preceding the Closing
Date, there has not been any delinquency in excess of 30 days with
respect to such Mortgage Loan.
(vi) Equity Participation or Participation
Interest. Such Mortgage Loan contains no equity participation by the
Seller and is a whole loan and not a participation interest. Neither
the related Note nor the related Mortgage provides for negative
amortization or any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property. The
Seller has no ownership interest in such Mortgaged Property or the
related Borrower other than in such Mortgage Loan being sold and
assigned. Neither the Seller nor any affiliate of the Seller has any
obligation to make any capital contributions to the related Borrower
under the Mortgage or any other related Mortgage Loan Document.
(vii) Compliance with Applicable Laws. As of the
date of its origination, such Mortgage Loan either complied with, or
was exempt from, applicable federal or state laws, regulations and
other requirements pertaining to usury. To the best of the Seller's
knowledge, as of the date of origination of such Mortgage Loan, the
related originator complied in all material respects with the
requirements of any and all other federal, state or local laws
applicable to the origination, servicing and collection of such
Mortgage Loan. No governmental or regulatory approval or consent is
required for the sale of such Mortgage Loan by the Seller, and the
Seller has full right, power and authority to sell such Mortgage Loan.
To the extent necessary to ensure the enforceability of such Mortgage
Loan and the effective sale, transfer and assignment thereof and of the
related Note, the originator and/or the Seller each was qualified and
appropriately licensed to transact business in the jurisdiction in
which the related Mortgaged Property is located at the time such entity
had possession of the related Note.
(viii) Proceeds Fully Disbursed. The proceeds of such
Mortgage Loan have been fully disbursed (although certain reserve
accounts controlled by the Seller may have been established as
described in the Mortgage Loan Characteristics Schedule), and there is
no requirement for future advances thereunder.
(ix) Origination Expenses Paid. All costs, fees
and expenses incurred in connection with the origination and closing of
such Mortgage Loan, including, without limitation, recording costs and
fees, have been paid to the appropriate person or arrangements have
been made for their payment to the appropriate person on a timely basis
by the related Borrower.
(x) Documents Valid. Each of the related Note,
the related Mortgage and any other related Mortgage Loan Document is
the legal, valid and binding obligation of the related Borrower, the
related guarantor or other party executing such document (subject to
any non-recourse or partial recourse provisions contained therein), and
is enforceable in accordance with its terms (subject to the
qualifications set forth in Section 2(c)). There is no valid offset,
defense, counterclaim or right of rescission with respect to such Note,
Mortgage or any other Mortgage Loan Document, nor will the operation of
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any of the terms of such Note or Mortgage, or the exercise of any right
thereunder, render either such Note or Mortgage unenforceable or
subject to any valid offset, defense, counterclaim or right of
rescission, including, without limitation, the defense of usury, and
the Seller has no knowledge that any such offset, defense,
counterclaim, or right of rescission has been asserted or is available
with respect thereto. Except as described in the immediately following
sentence, the related Note and the related Mortgage do not require the
related mortgagee to release any portion of the related Mortgaged
Property except upon payment in full of such Mortgage Loan or the
exercise of a defeasance feature. In the case of certain Mortgaged
Properties securing cross-collateralized Mortgage Loans, certain
Mortgage Loans secured by multiple Mortgaged Properties, and certain
Mortgage Loans secured by one or more parcels constituting a single
Mortgaged Property, the related mortgagee may be required to release a
Mortgaged Property or a portion thereof upon payment of a portion of
the related Mortgage Loan as specified in the related Mortgage Loan
Documents.
(xi) Assignment of Mortgage; Note Endorsement.
The related Assignment of Mortgage (but for the insertion of the name
of the assignee and any related recording information which is not yet
available to the Seller) is or will be in recordable form and
constitutes or will constitute the Seller's legal, valid and binding
assignment to the Purchaser of the related Mortgage and any related
Assignment of Leases, Rents and Profits or assignment of Assignment of
Leases, Rents and Profits. The Seller's endorsement and delivery of the
related Note to the Purchaser in accordance with the terms of this
Agreement constitutes or will constitute the Seller's legal, valid and
binding assignment to the Purchaser of such Note, and together with the
Seller's execution and delivery of such Assignment of Mortgage to the
Purchaser, legally and validly conveys or will convey all right, title
and interest of the Seller in such Mortgage Loan to the Purchaser.
(xii) First Lien. Based on the related policy of
title insurance (or pro forma or specimen policy or "marked-up"
commitment for title insurance), the related Mortgage is a legal, valid
and enforceable first lien on the related Mortgaged Property (including
all buildings and improvements on such Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air
conditioning systems located in or annexed to such buildings, and all
additions, alterations and replacements made at any time prior to the
closing date of such Mortgage Loan with respect to the foregoing, but
excluding any related personal property) which Mortgaged Property is
free and clear of all liens and encumbrances having priority over or
equal to the first lien of such Mortgage, except for (A) the lien of
current real estate taxes and special assessments not yet delinquent or
accruing interest or penalties, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage which do not
materially and adversely (1) affect the value of such Mortgaged
Property as security for such Mortgage Loan, or (2) interfere with the
related Borrower's ability to make required interest and principal
payments or to make use of such Mortgaged Property for the intended
purposes therefor, (C) leases and subleases pertaining to such
Mortgaged Property which the Seller did not require to be subordinated
to the lien of such Mortgage; provided that such leases and subleases,
if any,
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are with entities which are not affiliated with the Seller, and (D)
other matters which do not, individually or in the aggregate,
materially and adversely (1) affect the value of such Mortgaged
Property as security for such Mortgage Loan, or (2) interfere with the
related Borrower's ability to make required principal and interest
payments or to make use of such Mortgaged Property for the intended
purposes therefor.
(xiii) No Modification, Release or Satisfaction.
Except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (A)
neither the related Note nor the related Mortgage (including any
amendments or supplements thereto included in the related Mortgage
File) has been impaired, waived, modified, altered, satisfied, canceled
or subordinated or rescinded, (B) the related Mortgaged Property has
not been released from the lien of such Mortgage and (C) the related
Borrower has not been released from its obligations under such
Mortgage, in whole or in any part, in each such event in a manner which
would materially interfere with the benefits of the security intended
to be provided by such Mortgage.
(xiv) Defeasance. A Mortgage Loan which permits
defeasance provides that, after the applicable Defeasance Lockout
Period, the related Borrower may obtain the release of all or a portion
of the related Mortgaged Property from the lien of the related Mortgage
upon the pledge to the Trustee of non-callable U.S. Treasury or other
non-callable U.S. government obligations that provide for payments on
or prior to all successive payment dates to maturity (or, in the case
of an ARD Loan, through the related Anticipated Repayment Date) in the
amounts due on such dates and upon the satisfaction of certain other
conditions. A Mortgage Loan containing a defeasance provision has a
Defeasance Lockout Period of not less than two years after the Closing
Date or includes other conditions precedent the satisfaction of which
will ensure that the exercise of such a feature will not cause a REMIC
to fail to be a REMIC. In certain cases, the Mortgage Loans require
that a REMIC opinion be provided as a condition to exercise of any
defeasance option, and the Mortgage or the other related Mortgage Loan
Documents generally require the satisfaction of one or more of the
following conditions prior to the defeasance of the related Mortgaged
Property:
(A) the related Borrower must provide
the mortgagee with a prior written notice of not less than 30
days;
(B) the related Borrower must either
(i) deliver to the mortgagee or the servicer of the Mortgage
Loan, as the case may be, government obligations described
above in this Section 2(b)(xiv) or (ii) pay to the mortgagee
or the servicer of the Mortgage Loan, as the case may be, an
amount sufficient to purchase the government obligations
described above in this Section 2(b)(xiv);
(C) the related Borrower must provide
a written confirmation from the Rating Agencies indicating
that such defeasance will not result in a reduction,
withdrawal or qualification of the respective ratings of any
outstanding Classes of Certificates;
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(D) the related Borrower must deliver
an officer's certificate to the effect that all of its
obligations with respect to the Mortgage Loan have been
satisfied and that the Mortgage Loan is not in default; and
(E) the related Borrower must
undertake to provide such other documents or information as
the mortgagee may reasonably request in connection with such
defeasance.
(xv) No Delinquent Taxes or Assessments. All
tax or governmental assessments, or installments thereof, which were
due on or prior to the date of origination had been paid as of such
date and the Seller knows of no tax or governmental assessment, or if
payable in installments, any installment thereof, which became due and
owing thereafter and prior to the Closing Date in respect of the
related Mortgaged Property, which, if left unpaid, would be, or might
become, a lien on such Mortgaged Property having priority over the
related Mortgage which has become delinquent such that (A) such tax,
assessment or installment has commenced to accrue interest or
penalties, or (B) the applicable taxing authority may commence
proceedings to collect such tax, assessment or installment, as
applicable.
(xvi) Escrow or Reserve Deposits. As of the
Closing Date: (A) the related Reserve Account(s), if any, contain all
escrow deposits and other payments required by the terms of the related
Mortgage Loan Documents (inclusive of any applicable grace or cure
period) to be held by the Seller as of the Closing Date; and (B) the
Seller is transferring all amounts on deposit in the related Reserve
Account(s) on the Closing Date to the Purchaser or to the extent not
being transferred to the Purchaser, all escrow deposits and other
payments required under the related Note, the related Mortgage and any
other related Mortgage Loan Documents have been applied in accordance
with their intended purposes by the related mortgage loan originator,
the related Seller or its agent.
(xvii) No Third Party Advances. The Seller has not,
directly or indirectly, (A) advanced funds, (B) induced or solicited
any payment from a Person other than the related Borrower, or (C) to
the Seller's knowledge, received any payment other than from such
Borrower, for the payment of any amount required under the related Note
or the related Mortgage, except for interest accruing from the date of
such Note or the date of disbursement of the proceeds of such Mortgage
Loan, whichever is later, to the date which precedes by 30 days the
first Due Date under such Note.
(xviii) No Condemnation or Damages. To the best of
the Seller's knowledge, no proceedings for the total or partial
condemnation of the related Mortgaged Property (A) have occurred since
the date as of which the appraisal relied upon in the origination of
such Mortgage Loan was prepared, or (B) are pending or threatened other
than, in each such case, proceedings as to partial condemnation which
do not materially and adversely affect the value of such Mortgaged
Property as security for such Mortgage Loan. To the best of Seller's
knowledge, the related Mortgaged Property is free of material damage.
The related Mortgage requires that any related condemnation award be
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applied either to the restoration of the related Mortgaged Property or
to the payment of the outstanding principal balance of or accrued
interest on such Mortgage Loan.
(xix) No Mechanics' Liens. To the Seller's
knowledge, the related Mortgaged Property (excluding any related
personal property) (i) is free and clear of any mechanics' and
materialmen's liens or liens in the nature thereof, and (ii) no rights
are outstanding that, under applicable law, could give rise to any such
liens, any of which liens are or may be prior to, or equal with, the
lien of the related Mortgage, except, with respect to (i) and (ii)
above, those which are insured against by the related lender's title
insurance policy referred to in Section 2(b)(xxiii) below.
(xx) Title Survey: Improvements; Separate Tax
Parcels. The Seller has delivered an as-built survey, a survey
recertification, a site plan, a recorded plat or the like with respect
to the related Mortgaged Property which satisfied, or the Seller
otherwise satisfied, the requirements of the related title insurance
company for deletion of the standard general exceptions for
encroachments, boundary and other survey matters and for easements not
shown by the public records from the related title insurance policy,
except with respect to any related Mortgaged Property located in a
jurisdiction (such as the State of Texas where survey title insurance
coverage is prohibited by law) in which the exception for easements not
shown by the public records could not be deleted and such standard
general exception is customarily accepted by prudent commercial
mortgage lenders in such jurisdiction. Except for encroachments and
similar matters which are inconsequential, do not materially and
adversely affect the value of such Mortgaged Property as security for
such Mortgage Loan, or are insured against by the related lender's
title insurance policy described in Section 2(b)(xxiii) below, surveys
and/or title insurance obtained at the time of the origination of such
Mortgage Loan indicated or insured that (A) none of the improvements
which were included for the purpose of determining the Appraised Value
of such Mortgaged Property in the related appraisal at the time of the
origination of such Mortgage Loan lie outside the boundaries and
building restriction lines of such Mortgaged Property, and (B) no
improvements on adjoining properties encroach upon such Mortgaged
Property. The related Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the
related lender's title insurance policy.
(xxi) Title. The Seller has good title to and is
the sole owner and beneficial holder of such Mortgage Loan. The Seller
has full power, authority and legal right to sell and assign such
Mortgage Loan hereunder, is the sole mortgagee or beneficiary of record
under the related Mortgage and is transferring such Mortgage Loan to
the Purchaser free and clear of any and all liens, encumbrances,
participation interests, pledges, charges or security interests of any
nature encumbering such Mortgage Loan.
(xxii) Compliance with Laws. To the best of the
Seller's knowledge (based upon a letter or letters from governmental
authorities, a legal opinion, an endorsement or endorsements to the
related title insurance policy, a representation of the related
Borrower at the time of origination of such Mortgage Loan or other
information reasonably acceptable to the Seller at the time of its
origination thereof), (A) no
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improvements located on or forming a part of the related Mortgaged
Property are in violation of any applicable zoning and building laws or
ordinances, (B) the related Mortgaged Property complies with all other
laws and regulations pertaining to the use and occupancy thereof
(excluding Environmental Laws which are addressed in Sections
2(b)(xxxiv) and 2(b)(xxxv) below) and all applicable insurance
requirements, (C) such Borrower has obtained all inspections, licenses,
permits, authorizations, and certificates necessary for such
compliance, including, but not limited to, certificates of occupancy
(if available), and (D) the Seller has not received notification from
any governmental authority that such Mortgaged Property violates or
does not comply with such laws or regulations or is being used,
operated or occupied unlawfully or that such Borrower has failed to
obtain such inspections, licenses, permits, authorizations, or
certificates, except for such violation or non-compliance (1) which
does not materially and adversely affect the value of such Mortgaged
Property as security for such Mortgage Loan or the use for which such
Mortgaged Property was intended at the time of origination of such
Mortgage Loan, (2) which is specifically addressed by the appraiser in
the determination of the related Appraised Value, or (3) for which a
Reserve Account held for the Seller has been established in an amount
sufficient to pay for the estimated costs to correct such violations or
non-compliance.
(xxiii) Title Insurance. The lien of the related
Mortgage is insured by an ALTA lender's title insurance policy or, if
an ALTA lender's title insurance policy is unavailable, another
state-approved form of lender's title insurance policy issued in an
amount not less than the stated principal amount of such Mortgage Loan
(after all advances of principal) insuring the Seller and its
successors and assigns that the related Mortgage is a valid first lien
on the related Mortgaged Property, subject only to exceptions described
in Section 2(b)(xii) above (or, if such a title insurance policy has
not yet been issued in respect of such Mortgage Loan, such a policy
will be issued and is currently evidenced by a pro forma or specimen
policy or by a "marked-up" commitment for title insurance which was
furnished by the related title insurance company for purposes of
closing such Mortgage Loan). The premium for such title insurance
policy has been paid in full and such title insurance policy is (or,
when issued, will be) in full force and effect, and upon endorsement
and delivery of the related Note to the Purchaser and recording of the
related Assignment of Mortgage in favor of the Purchaser in the
applicable real estate records, such title insurance policy will inure
to the benefit of the Purchaser. Such title insurance policy (A) does
not contain the standard general exceptions for encroachments, boundary
or other survey matters and for easements not shown by the public
records, other than matters which do not materially and adversely (1)
affect the value of the related Mortgaged Property as security for the
Mortgage Loan, or (2) interfere with the related Borrower's ability to
make required principal and interest payments or to make use of such
Mortgaged Property for the intended purposes, and (B) only contains
such exceptions for encroachments, boundary and other survey matters as
are customarily accepted by prudent commercial mortgage lenders. The
Seller and its agents have not taken, or failed to take, any action
that would materially impair the coverage benefits of any such title
insurance policy. The Seller has not made any claim under such title
insurance policy.
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(xxiv) Insurance Related to Mortgaged Property. All
improvements on the related Mortgaged Property are insured by (A) a
fire and extended perils insurance policy providing coverage on a full
replacement cost basis in an amount not less than the lesser of (1) the
full replacement cost of all improvements to such Mortgaged Property,
and (2) the outstanding principal balance of such Mortgage Loan, but in
any event in an amount sufficient to avoid the operation of any
co-insurance provisions contained in such insurance policy, which
policy contains a standard mortgagee clause naming the originator or
the Seller and its successors as additional insureds; (B) an insurance
policy providing business interruption or rental continuation coverage
in an amount not less than the income anticipated from 12 months of
operations of such Mortgaged Property; (C) a comprehensive general
liability insurance policy in an amount not less than $1,000,000 per
occurrence; and (D) if any material improvement on such Mortgaged
Property is located in an area identified by the Federal Emergency
Management Agency as having special flood hazards under the National
Flood Insurance Act of 1968, as amended, a flood insurance policy
providing coverage in an amount not less than the lesser of (1) the
stated principal amount of the related Note, and (2) the maximum amount
of insurance available under the Flood Disaster Protection Act of 1973,
as amended. As of the Closing Date, the insurance premium for each such
insurance policy shall have been paid or escrowed. Each such insurance
policy contains a clause providing that it is not terminable and may
not be reduced without 30 days' prior written notice to the mortgagee
(except that, in the event of nonpayment of insurance premiums, each
such insurance policy provides for termination upon not less than 10
days' prior written notice), and no such notice has been received by
the Seller. With respect to each such insurance policy, the Seller has
received a certificate of insurance or similar document dated within
the last 12 months to the effect that such insurance policy is in full
force and effect. The Seller has no knowledge of any action, omission,
misrepresentation, negligence or fraud which would result in the
failure of any such insurance policy. The related Mortgage Loan
Documents require the related Borrower or a tenant of such Borrower to
maintain each such insurance policy at its expense, but authorizes the
mortgagee to maintain any such insurance policy at the related
Borrower's expense upon such Borrower's or such tenant's failure to do
so (subject to any applicable notice or cure periods). The related
Mortgage and insurance policy require that any related insurance
proceeds, in excess of a specified amount, will be applied either to
the repair or restoration of all or part of the related Mortgaged
Property or to the payment of the outstanding principal balance of or
accrued interest on such Mortgage Loan.
(xxv) UCC Financing Statements. One or more
Uniform Commercial Code financing statements covering all furniture,
fixtures, equipment and other personal property (A) which are
collateral under the related Mortgage or under a security or similar
agreement executed and delivered in connection with such Mortgage Loan,
and (B) in which a security interest can be perfected by the filing of
Uniform Commercial Code financing statement(s) under applicable law
have been filed or recorded (or have been sent for filing or recording)
wherever necessary to perfect under applicable law a security interest
in such furniture, fixtures, equipment and other personal property
(including
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rights under leases and all agreements affecting the use, enjoyment or
occupancy of all or any part of the Mortgaged Property and hotel room
revenues).
(xxvi) Default, Breach and Acceleration. There is no
material default, breach, violation or event of acceleration existing
under the related loan agreement, related Note or the related Mortgage.
The Seller has no knowledge of any event (other than failure to make
payments due but not yet delinquent) which, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of acceleration
thereunder. The Seller has no knowledge that the related Borrower is a
debtor in any state or federal bankruptcy or insolvency proceeding.
(xxvii) Customary Provisions. The related Note and
the related Mortgage, together with applicable state law, contain
customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the related Mortgaged Property of the benefits of the security,
including, but not limited to, judicial or, if applicable, non-judicial
foreclosure.
(xxviii) Access Routes. (A) Surveys, title insurance
reports, the title insurance policy or other relevant documents
contained in the related Mortgage File indicate that at the time of
origination of such Mortgage Loan the related Borrower had sufficient
rights with respect to amenities, ingress and egress and similar
matters identified in the appraisal of the related Mortgaged Property
as being critical to the Appraised Value thereof, and (B) such
Mortgaged Property was receiving services from public or private water,
sewer and other utilities that were adequate as of the date that the
Mortgage Loan was originated, and none of such services is subject to
revocation as a result of a foreclosure or change in ownership of an
adjacent property.
(xxix) Mortgage Loans Secured by Ground Lease but Not
Fee Interest. With respect to each Mortgage Loan that is secured in
whole or in part by the interest of the related Borrower as lessee
under a ground lease of all or a portion of the related Mortgaged
Property (a "Ground Lease"), but the related fee interest in the
portion of such Mortgaged Property covered by such Ground Lease (the
"Fee Interest") is not subject or subordinate to the lien of the
related Mortgage, the Seller hereby represents and warrants that:
(A) as of the date of the closing of
such Mortgage Loan, such Ground Lease is in full force and
effect, and such Ground Lease or a memorandum thereof has been
duly recorded in the applicable real estate records and (1)
such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor)
does not prohibit the interest of the related lessee
thereunder from being encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property of
such lessee in a manner that would interfere with the related
Borrower's ability to make required principal and interest
payments or to make use of such Mortgaged Property for the
intended purposes, or a separate written agreement permitting
such encumbrance
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has been obtained, and (2) there have been no material changes
in the terms of such Ground Lease that would be binding on the
mortgagee as successor to the lessee except as set forth in
written instruments which are part of the related Mortgage
File;
(B) based on the related policy of
title insurance, the related lessee's leasehold interest in
the portion of the related Mortgaged Property covered by such
Ground Lease is not subject to any liens or encumbrances
securing indebtedness which are superior to, or of equal
priority with, the related Mortgage, except for liens of
current real estate taxes and special assessments not yet
delinquent or accruing interest or penalties;
(C) the related lessee's interest in
such Ground Lease may be transferred to the Purchaser and its
successors and assigns through a foreclosure of the related
Mortgage or conveyance in lieu of foreclosure and, thereafter,
may be transferred to another Person by the related mortgagee
and its successors and assigns, upon notice to, but without
the consent of, the related lessor (or, if any such consent is
required, either (1) it has been obtained prior to the Closing
Date, or (2) it may not be unreasonably withheld) provided
that such Ground Lease has not been terminated and all amounts
owed thereunder have been paid;
(D) the related lessor is required to
give notice of any default under such Ground Lease by the
related lessee to the mortgagee either under the terms of such
Ground Lease or under the terms of a separate estoppel letter
or written agreement;
(E) the related mortgagee is entitled,
under the terms of such Ground Lease or a separate estoppel
letter or written agreement, to receive notice of any default
by the related lessee under such Ground Lease, and after any
such notice, is entitled to not less than the time provided to
the related lessee under such Ground Lease to cure such
default, which is curable during such period before the lessor
may terminate the Ground Lease; all rights of the related
lessee under the Ground Lease may be exercised by or on behalf
of the mortgagee;
(F) the currently effective term of
such Ground Lease (excluding any extension or renewal which is
not binding on the lessor thereunder) extends not less than 10
years beyond the Maturity Date of such Mortgage Loan;
(G) such Ground Lease does not impose
any restrictions on subletting which the Seller considered to
be commercially unreasonable at the time of its origination or
purchase of such Mortgage Loan or that a prudent commercial
mortgage lender would have considered unreasonable at such
date;
(H) to the Seller's knowledge as of
the Closing Date, (1) no event of default has occurred under
such Ground Lease and (2) no event has
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occurred which, with the passage of time, the giving of notice
or both (other than rental or other payments being due, but
not yet delinquent), would result in a default or an event of
default under the terms of such Ground Lease;
(I) the related lessor has agreed in a
writing included in the related Mortgage File that such Ground
Lease may not be amended, modified, cancelled or terminated
without the prior written consent of the Seller or the
mortgagee and that any such action without such consent is not
binding upon the mortgagee, its successors and assigns. Unless
the mortgagee fails to cure a default of the lessee under the
Ground Lease following notice thereof from the lessor as set
forth in (E) above, the lessor is required to enter into a new
ground lease upon termination of such Ground Lease for any
reason (including, without limitation, rejection of such
Ground Lease in a bankruptcy proceeding);
(J) under the terms of such Ground
Lease and the related Mortgage, taken together, any related
insurance proceeds or condemnation award (other than in
respect of a total or substantially total loss or taking) will
be applied either to (1) the repair or restoration of all or
part of the related Mortgaged Property covered by such Ground
Lease, with the mortgagee or a trustee appointed by it having
the right to hold and disburse such proceeds as such repair or
restoration progresses (except where such Mortgage Loan
provides that the related Borrower or its agent may hold and
disburse such proceeds with respect to any loss or taking less
than a stipulated amount not greater than $50,000), or (2) the
payment of the outstanding principal balance of and accrued
interest on such Mortgage Loan; and
(K) there are no existing mortgages on
the Fee Interest which can be foreclosed upon that are not
subject to the Ground Lease, and the provisions of the Ground
Lease and/or other documents related thereto and included as
part of the related Mortgage File preclude the creation of any
future mortgage on the Fee Interest that can be foreclosed
upon not subject to the Ground Lease.
(xxx) Deed of Trust. With respect to any related
Mortgage that is a deed of trust or trust deed, a trustee, duly
qualified under applicable law to serve as such, has either been
properly designated and currently so serves or may be substituted in
accordance with applicable law. Except in connection with (A) a
trustee's sale after default by the related Borrower or (B) the release
of the related Mortgaged Property following the payment of the related
Mortgage Loan in full, no fees or expenses are payable by the Seller or
the Purchaser to such trustee.
(xxxi) Cross-Security. The related Mortgaged Property
is not collateral or security for the payment or performance of (A) any
other obligations owed to the originator of such Mortgage Loan or the
Seller other than another Mortgage Loan being sold, transferred and
assigned by the Seller under this Agreement, or (B) to the Seller's
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knowledge, any other obligations owed to any Person other than the
Seller. The related Note is not secured by any property other than a
Mortgaged Property.
(xxxii) Assignment of Leases, Rents and Profits.
Unless the related Mortgaged Property is occupied by the related
Borrower, the related Mortgage Loan Documents contain the provisions of
an Assignment of Leases, Rents and Profits or include a separate
Assignment of Leases, Rents and Profits or assignment of Assignment of
Leases, Rents and Profits. Any related Assignment of Leases, Rents and
Profits incorporated within the related Mortgage or set forth in a
separate Mortgage Loan Document creates on recordation (with the same
priority as the related Mortgage) a valid assignment of, or security
interest in, the right to receive all payments due under the related
leases, if any.
(xxxiii) REMIC. (A) Such Mortgage Loan is principally
secured by an interest in real property and either (1) the fair market
value of such real property was at least equal to 80% of the adjusted
issue price of such Mortgage Loan on the date of origination of such
Mortgage Loan or, if such Mortgage Loan has been "significantly
modified" within the meaning of Section 1001 of the Code, on the date
of such modification (unless such modification may be disregarded under
Treas. Reg. Sec. 1.860G-2(b)(3)), or (2) substantially all of the
proceeds of such Mortgage Loan were used to acquire or improve or
protect an interest in real property that, at origination of such
Mortgage Loan, was the only security for such Mortgage Loan; (B) such
Mortgage Loan contains no equity participation by the Seller, and
neither the related Note nor the related Mortgage provides for any
contingent or additional interest in the form of participation in the
cash flow or proceeds realized on disposition of the related Mortgaged
Property; and (C) such Mortgage Loan is a "qualified mortgage" as
defined in, and for purposes of, Section 860G(3)(A) of the Code and
provides for the payments of interest at a fixed rate or at a rate
described in Treas. Reg. Sec. 1.860G-1(a)(3).
(xxxiv) Environmental Site Assessments. Environmental
Site Assessments (collectively, the "ESAs"), transaction screen
assessments, studies or updates prepared or obtained in connection with
the origination of such Mortgage Loan identified no material adverse
environmental conditions or circumstances anticipated to require any
material expenditure with respect to any Mortgaged Property, except
for: (A) those cases where such conditions or circumstances were
investigated further and, based upon such additional investigation, a
qualified environmental consultant recommended no further investigation
or remediation; (B) those cases in which an operations and maintenance
plan was recommended by the environmental consultant and such plan was
obtained or an escrow reserve established to cover the estimated costs
of obtaining such plan; (C) those conditions in which soil or
groundwater contamination was suspected or identified and either (1)
such condition or circumstance was remediated or abated prior to the
date of closing of the related Mortgage Loan, (2) a "no further action"
letter was obtained from the applicable regulatory authority, or (3)
either an environmental insurance policy was obtained, a letter of
credit provided, an escrow reserve account established, or an indemnity
from the responsible party was obtained, to cover the estimated costs
of any required investigation, testing, monitoring or remediation; or
(D) those cases in which (1)
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a leaking underground storage tank or groundwater contamination was
identified to be located on or to have originated from an offsite
property, (2) a responsible party has been identified under applicable
law, and (3) either such condition is not known to have affected the
Mortgaged Property or the responsible party has either received a "no
further action" letter from the applicable regulatory agency,
established a remediation fund, or provided a guaranty or indemnity to
the related Borrower.
(xxxv) Notice of Environmental Problem. Other than
with respect to any conditions identified in the ESAs, transaction
screen assessments, studies or updates referred to in Section
2(b)(xxxiv) above, the Seller: (A) has not received actual notice from
any federal, state or other governmental authority of (1) any failure
of the related Mortgaged Property to comply with any applicable
Environmental Laws, or (2) any known or threatened release of Hazardous
Materials on or from such Mortgaged Property in violation of any
applicable Environmental Laws; (B) has not received actual notice from
the related Borrower that (1) such Borrower has received any such
notice from any such governmental authority, (2) such Mortgaged
Property fails to comply with any applicable Environmental Laws, or (3)
such Borrower has received actual notice that there is any known or
threatened release of Hazardous Materials on or from such Mortgaged
Property in violation of any applicable Environmental Laws; or (C) has
no actual knowledge that (1) the related Mortgaged Property fails to
materially comply with any applicable Environmental Laws or (2) there
has been any known or threatened release of Hazardous Materials on or
from such Mortgaged Property where such release falls outside the
exceptions (A) through (D) of Section 2(b)(xxxiv) above.
(xxxvi) Recourse. The related Mortgage Loan Documents
contain standard provisions providing for recourse against the related
Borrower or a principal of such Borrower for damages sustained in
connection with the Borrower's fraud, material misrepresentation or
misappropriation of any tenant security deposits, rent, insurance
proceeds or condemnation proceeds. The related Mortgage Loan Documents
contain provisions pursuant to which the related Borrower or a
principal of such Borrower has agreed to indemnify the mortgagee for
damages resulting from violations of any applicable Environmental Laws.
(xxxvii) Environmental Compliance. Each Mortgage
Loan contains either a representation, warranty or covenant that the
related Borrower will not use, cause or permit to exist on the related
Mortgaged Property any Hazardous Materials in violation of any
applicable Environmental Laws or an indemnity with respect to any such
violation in favor of the Seller.
(xxxviii) Inspection. The Seller or originator has
inspected the related Mortgaged Property or caused such Mortgaged
Property to be inspected within the 12 months preceding the Closing
Date.
(xxxix) Subordinate Debt. Except as has been
disclosed in the Mortgage Loan Characteristics Schedule, the related
Mortgage contains a provision for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan in the
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event that the related Borrower encumbers the related Mortgaged
Property without the prior written consent of the mortgagee thereunder.
(xl) Common Ownership. To Seller's knowledge,
no two properties securing Mortgage Loans are directly or indirectly
under common ownership except to the extent that such common ownership
and the ownership structure have been specifically disclosed in the
Mortgage Loan Characteristics Schedule and Annex A and Annex C to the
Prospectus Supplement.
(xli) Operating or Financial Statement. The
related Mortgage Loan Documents require the related Borrower to furnish
to the mortgagee at least annually an operating statement with respect
to the related Mortgaged Property or, in the case of a
borrower-occupied Mortgaged Property, a financial statement with
respect to the related Borrower.
(xlii) Litigation. To the best of the Seller's
knowledge as of the date of origination or purchase of such Mortgage
Loan, and to the Seller's knowledge thereafter, there is no pending
action, suit, proceeding, arbitration or governmental investigation
with respect to the related Borrower or Mortgaged Property which if
determined adversely to the related Borrower would have a material
adverse effect on the value of the related Mortgaged Property or such
Borrower's ability to continue to perform its obligations under such
Mortgage Loan.
(xliii) Assisted Living Loans and Nursing Home Loans.
If the Mortgage Loan is secured in whole or in part by a Mortgage on a
Mortgaged Property operated as a Facility, based upon due diligence
performed in the origination of the related Mortgage Loan, and to its
knowledge as of the date hereof:
(A) All governmental licenses,
permits, regulatory agreements or other approvals or
agreements necessary or desirable for the use and operation of
the Facility as intended, including, without limitation, a
valid certificate of need or similar certificate, license, or
approval issued by the applicable department of health for the
requisite number of beds, and approved provider status in any
approved provider payment program, were, as of the related
date of origination, held by the related Mortgagor or the
operator of the Facility and were in full force and effect;
and
(B) In connection with the most recent
governmental inspection of the Facility (a) the Facility had
not received a "Level A" (or equivalent) violation that has
not been cured to the satisfaction of the applicable
governmental agency, (b) no statement of charges or
deficiencies had been made or penalty enforcement action has
been undertaken against the Facility, its operator or the
Mortgagor or against any officer, director or stockholder of
such operator or the Mortgagor by such governmental agency,
(c) there were no violations that threatened the Facility's,
the operator's or the Mortgagor's certification for
participation in Medicare or Medicaid or any other third-party
payor program, (d)
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to the Seller's knowledge, the Mortgagor and Facility comply with all
federal, state and local laws, regulations, quality and safety
standards, accreditation standards and requirements of the applicable
state department of health and (e) there was no threatened or pending
revocation, suspension, termination, probation, restriction,
limitation, or nonrenewal affecting the Mortgagor, such operator or the
Facility or any participation or provider agreement with any
third-party payor to which the Mortgagor or such operator is subject.
(xliv) ARD Loans. With respect to each Mortgage Loan
that is an ARD Loan, it commenced amortizing on its initial scheduled
Due Date (or, in the case of certain interest-only Mortgage Loans, as
otherwise set forth in the related Notes) and provides that: (A) the
spread used in calculating its Mortgage Rate will increase by no more
than five percent (5%) in connection with the passage of its
Anticipated Repayment Date; (B) its Anticipated Repayment Date is of
the term specified in the Mortgage Loan Characteristics Schedule and
the Additional Loan Characteristics Schedule following the origination
of such Mortgage Loan; (C) no later than the related Anticipated
Repayment Date, if it has not previously done so, the related Borrower
is required to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the Servicer; and (D) any cash flow
from the related Mortgaged Property that is applied to amortize such
Mortgage Loan following its Anticipated Repayment Date shall, to the
extent such net cash flow is in excess of the Monthly Payment payable
therefrom, be net of budgeted and discretionary (Servicer approved)
capital expenditures.
(xlv) Due-on-Sale. The related Mortgage contains
a "due-on-sale" clause that provides for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if,
without the prior written consent of the mortgagee, the related
Mortgaged Property subject to such Mortgage is directly or indirectly
transferred or sold; provided that certain of the Mortgages permit (A)
changes in ownership between existing partners and members, (B)
transfers to family members (or trusts for the benefit of family
members), affiliated companies and certain specified individuals and
entities, (C) issuance by the related borrower of new partnership or
membership interests, (D) certain other changes in ownership for estate
planning purposes, or (E) certain other transfers similar in nature to
the foregoing.
(xlvi) Loan Origination; Loan Underwriting. Each
Mortgage Loan was originated by the related Seller, an affiliate of the
related Seller or an originator approved by the related Seller, or was
purchased by the related Seller, and each Mortgage Loan substantially
complied with all of the terms, conditions and requirements of the
related Seller's underwriting standards in effect at the time of its
origination or purchase of such Mortgage Loan, subject to such
exceptions as the related Seller approved.
(c) Each representation and warranty of the Seller set
forth in Section 2(a) or 2(b) of this Agreement, to the extent related to the
enforceability of any instrument, agreement or other document or as to offsets,
defenses, counterclaims or rights of rescission related to such enforceability
is qualified to the extent that (i) enforcement may be limited (A) by
bankruptcy,
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<PAGE>
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally, (B) by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law), and
(C) by any applicable anti-deficiency law or statute; and (ii) such instrument,
agreement or other document may contain certain provisions which may be
unenforceable in accordance with their terms, in whole or in part, but the
unenforceability of such provisions will not (subject to the qualification in
clause (i), above) (A) cause the related Note or the related Mortgage to be
void, (B) invalidate the related Borrower's obligation to pay interest at the
stated interest rate of such Note on, and repay the principal of, the related
Mortgage Loan in accordance with the payment terms of such Note, such Mortgage
and other written agreements delivered to the Seller in connection therewith,
(C) invalidate the obligation of any related guarantor to pay guaranteed
obligations with respect to interest at the stated interest rate of such Note
on, and the principal of, such Mortgage Loan in accordance with the payment
terms of such guarantor's written guaranty, (D) impair the mortgagee's right to
accelerate and demand payment of interest at the stated interest rate of such
Note on, and principal of, such Mortgage Loan upon the occurrence of a legally
enforceable default, or (E) impair the mortgagee's right to realize against the
related Mortgaged Property by judicial or, if applicable, non-judicial
foreclosure.
(d) The Seller agrees that it shall, at the request of
the Purchaser in connection with the consummation of the Securitization
Transaction, deliver to the Purchaser (i) certified copies of the charter,
by-laws and a certificate of good standing dated as of a recent date of the
Seller and (ii) an officer's certificate of the Seller to the effect that each
of the representations and warranties of the Seller contained in Section 2 of
this Agreement is true and correct in all material respects as of the Closing
Date, except to the extent that such representation and warranty specifically
relates to an earlier date, in which case such representation was true and
correct in all material respects as of such earlier date.
(e) The Purchaser hereby represents and warrants to the
Seller as of the Closing Date that:
(i) Due Organization; Qualification. It is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, and is in compliance with the laws
of each State in which any Mortgaged Property is located to the extent
necessary to perform its duties and obligations under this Agreement.
(ii) Authority. It has the full power,
authority and legal right to execute and deliver this Agreement (and
all agreements executed and delivered by it in connection herewith) and
to perform all transactions contemplated by this Agreement (and all
agreements executed and delivered by it in connection herewith). It has
duly authorized the execution, delivery and performance of this
Agreement (and all agreements executed and delivered by it in
connection herewith), and has duly executed and delivered this
Agreement (and all agreements executed and delivered by it in
connection herewith). This Agreement (and each agreement executed and
delivered by it in connection herewith), assuming due authorization,
execution and delivery by each other party hereto (and thereto),
constitutes its legal, valid and binding obligation
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<PAGE>
enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally,
by general principles of equity and by any applicable anti-deficiency
laws (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) Solvency. It is solvent and the purchase
of the Mortgage Loans will not cause it to become insolvent.
3. Remedies for Breach of Certain Representations and
Warranties.
(a) It is understood and agreed that the
representations and warranties set forth in this Agreement or contained in the
certificates of officers of the Seller or the Purchaser submitted pursuant
hereto shall survive the sale of the Mortgage Loans to the Purchaser and shall
inure to the benefit of the Purchaser and the Trustee (for the benefit of the
Certificateholders) as the transferee of the Purchaser, notwithstanding (i) any
restrictive or qualified endorsement on any Note, Assignment of Mortgage,
Assignment of Leases, Rents and Profits or reassignment of Assignment of Leases,
Rents and Profits, (ii) any termination of this Agreement, or (iii) the
examination by any Person of, or failure by any Person to examine, any Mortgage
File.
(b) Upon the discovery by the Seller or the Purchaser
that (i) a document required to be delivered pursuant to Section 1(c) of this
Agreement in connection with any Mortgage Loan has not been executed or received
or has not been recorded or filed (if required) within the time required for
delivery of such document, appears not to be what it purports to be or has been
torn, mutilated or otherwise defaced (such Mortgage Loan, a "Defective Document
Mortgage Loan") or (ii) a breach of any of the foregoing representations and
warranties set forth in Section 2(b) or a default in the performance of any of
the covenants or other obligations of the Seller under this Agreement has
occurred (a "Breach") which, in the case of either clause (i) or (ii),
materially and adversely affects the interest of the owners of one or more
Mortgage Loans, who may include Certificateholders, the party discovering (x)
that a Mortgage Loan is a Defective Document Mortgage Loan, or (y) the existence
of a Breach (any such Mortgage Loan as described in the preceding clause (x) or
so affected by a Breach as described in preceding clause (y), a "Defective
Mortgage Loan") shall give prompt written notice thereof to the other party and
to each Rating Agency. Within 85 days of its discovery or its receipt of notice
of any such Defective Mortgage Loan (including such notice given by the
Purchaser, the Trustee, the Servicer or any special servicer or custodian for
the Mortgage Loans), the Seller shall (i) promptly cure such defect or Breach in
all material respects, or (ii) repurchase the Defective Mortgage Loan or Loans
at the Repurchase Price for such Mortgage Loan or Loans in accordance with the
directions of the owners of such Defective Mortgage Loans; provided, however, if
such defect or Breach cannot be cured within such 85-day period, so long as the
Seller shall be actively and diligently attempting to cure such defect or
Breach, such 85-day period shall be extended for a reasonable period of time in
which to effect such cure, but in any event to a date not more than 180 days
from the earlier of the date of Seller's discovery or its receipt of notice of
any Defective Mortgage Loan, provided such Defective Mortgage Loan is
susceptible to such cure within such period of time; provided, further that no
such extension shall be applicable unless the Seller delivers to the Purchaser
(or its successor in interest) an officer's certificate
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<PAGE>
describing the measures being taken to cure such defect or Breach, stating that
the Seller believes such defect or Breach will be cured within such period. If
any Mortgage Loan fails to constitute a Qualified Mortgage by reason of
defective or missing documentation as described above or a breach of a
representation, warranty, or covenant of the Seller pursuant to this Agreement,
the Seller shall correct such condition, defect or breach or repurchase such
Mortgage Loan at the Repurchase Price within 85 days of discovery of such
failure and no extension of the 85-day period shall apply. The Repurchase Price
with respect to any Mortgage Loans repurchased by the Seller shall be paid in
accordance with the Pooling and Servicing Agreement. It is understood and agreed
that the obligations of the Seller set forth in this Section 3(b) to cure or
repurchase a Defective Mortgage Loan constitute the sole remedies available to
the Purchaser and its successors and assigns respecting a breach of the
representations and warranties of the Seller set forth in Section 2(b).
Upon any such repurchase of a Mortgage Loan by the Seller, the
Purchaser shall execute and deliver, or shall cause the owner of such Mortgage
Loan to execute and deliver, such instruments of sale, transfer or assignment
presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Mortgage Loan (including any property acquired in respect thereof or proceeds of
any insurance policy with respect thereto), and shall deliver, or shall cause
such owner to deliver, the related Mortgage File to the Seller or its designee
after receipt of the related Repurchase Price.
(c) Except as expressly set forth in Section 3(b), no
provision of this Agreement shall be interpreted as limiting (or otherwise be
deemed to limit) the right of the Purchaser, its successors or assigns to pursue
any remedies it may have under this Agreement, in equity or at law, in
connection with any breach by the Seller of any term hereof.
(d) The Seller hereby acknowledges the assignment by
the Purchaser to the Trustee, in its capacity as a trustee under the Pooling and
Servicing Agreement for the benefit of the Certificateholders, of the
representations and warranties contained in this Agreement and of the obligation
of the Seller to cure or repurchase any Defective Mortgage Loans pursuant to
this Section 3. The Trustee or its designee may enforce such obligation as
provided in Section 10 hereof.
4. Provision of Information. The Seller shall make
available to the Purchaser or its designees all relevant information reasonably
available to the Seller concerning the Mortgage Loans, the related Mortgaged
Properties and the related Borrowers and the Seller's business, properties and
operations, as the Purchaser may, in its sole discretion reasonably exercised,
determine is necessary in the marketing of the Certificates (including the
compliance with federal securities laws or state "Blue Sky" laws) (such
information shall be referred to as the "Requested Disclosure Information");
provided, however, that it is understood and agreed that the Requested
Disclosure Information shall not include information as of any date after the
Closing Date. As of the date such Requested Disclosure Information was made
available to the Purchaser or its designees, such Requested Disclosure
Information did not contain any untrue statement by the Seller or any Affiliate
thereof of any material fact or any omission of the Seller or any Affiliate
thereof of any information with respect to any Mortgage Loan, the related
Mortgaged Property or the related Borrower (or the Seller's business, properties
and operations)
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that is necessary to make such statements with respect to such Mortgage Loan,
the related Mortgaged Property or the related Borrower (or the Seller's
business, properties and operations), taken by themselves and only in the
context of the sale of the Mortgage Loans to the Purchaser, not misleading. The
Seller will, upon making available such Requested Disclosure Information, be
deemed to represent that it does not know or have any reason to know that the
Requested Disclosure Information contains any untrue statement of any material
fact or any omission of the Seller or any Affiliate thereof of any information
with respect to any Mortgage Loan, the related Mortgaged Property or the related
Borrower (or the Seller's business, properties and operations) that is necessary
to make such statements with respect to such Mortgage Loan, the related
Mortgaged Property or the related Borrower (or the Seller's business, properties
and operations), taken by themselves and only in the context of the sale of the
Mortgage Loans to the Purchaser, not misleading. The Seller agrees that so long
as any Underwriter is required by applicable laws to deliver a prospectus in
connection with any sale of the Certificates, the Seller shall notify the
Purchaser or its designee immediately if any event shall occur or condition
shall exist as a result of which any of the Requested Disclosure Information
contains an untrue statement of a material fact or any omission of any material
fact by the Seller or any Affiliate thereof of any information with respect to
any Mortgage Loan, the related Mortgaged Property or the related Borrower (or
the Seller's business, properties and operations) that is necessary to make the
statements by Seller or any Affiliate with respect to such Mortgage Loan, the
related Mortgaged Property or the related Borrower (or the Seller's business,
properties and operations), taken by themselves and only in the context of the
sale of the Mortgage Loans to the Purchaser, not misleading. The Seller
understands that the Purchaser or its designee will use the Requested Disclosure
Information in preparing the Registration Statement (including, insofar as they
are required to be filed as part of the Registration Statement, any
Computational Materials), the Prospectus Supplement, the Private Placement
Memorandum and to otherwise sell the Certificates, and that the Purchaser or its
designee shall be entitled to rely on the true, correct and complete nature of
the Requested Disclosure Information and shall have no obligation to
independently verify any of such information furnished or to be furnished by the
Seller hereunder, provided that the Purchaser or its designee has previously
provided a copy of each of the documents referred to above in this sentence to
the Seller for the Seller's review and approval; and provided, further, that the
Seller shall not be required to provide information that specifically relates to
facts existing or events first occurring from and after the Closing Date.
5. Indemnification.
(a) The Seller shall indemnify and hold harmless the
Purchaser, each Affiliate thereof, each Underwriter, each Placement Agent and
their respective officers and directors, and each person, if any, who "controls"
the Purchaser, any Underwriter or any Placement Agent, within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (collectively, for purposes hereof, the
"Indemnified Parties") against any and all losses, claims, damages, liabilities
or expenses (including, without limitation, the reasonable cost of investigating
and defending against any claims therefor and legal fees and disbursements
incurred in connection therewith except as otherwise provided below), joint or
several, which may be based upon the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law, by contractual
arrangement or otherwise, insofar as such losses, claims, damages, liabilities
or expenses arise
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out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Prospectus
Supplement, the Private Placement Memorandum or, insofar as they are required to
be filed as part of the Registration Statement, any Computational Materials with
respect to the Publicly Offered Certificates, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission (in the case of any Computational Materials, when read in conjunction
with the Prospectus and, in the case of the Private Placement Memorandum, when
read together with the other information specified therein as being available
for review by investors) to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, but only if and to the extent that such untrue statement,
alleged untrue statement, omission or alleged omission was made in reliance upon
and in conformity with (i) any Requested Disclosure Information furnished in
writing to the Purchaser or its designee or any Underwriter or Placement Agent,
directly or indirectly, by the Seller, or approved by the Seller, for use in
connection with the preparation of the Prospectus Supplement, the Private
Placement Memorandum or any Computational Materials or (ii) any representations,
warranties, statements or covenants of the Seller contained in this Agreement or
any document or certificate delivered pursuant hereto (the foregoing items (i)
and (ii), collectively, the "Seller's Information"). This indemnity agreement
will be in addition to any liability the Seller may otherwise have. Seller will
be deemed to have furnished Requested Disclosure Information in writing to the
Purchaser if such information relates to a subject matter specifically addressed
in the Prospectus Supplement, Private Placement Memorandum or Computational
Materials, and the Seller has not objected in writing to the Purchaser to its
inclusion or omission.
In no case shall the Seller be liable with respect to any
claims made against any of the Indemnified Parties unless an Indemnified Party
shall have notified the Seller in writing of the nature of the claim within a
reasonable time after service of a summons or other first legal process that
shall have been served upon such Indemnified Party, but failure to notify the
Seller of any such claims shall not relieve the Seller from any liability which
it may have to any Indemnified Party otherwise than on account of the indemnity
agreement contained in this Section 5(a). The Seller will be entitled to
participate at its own expense in the defense or, if it so elects promptly after
receiving such notice from any Indemnified Party, to assume the defense of any
suit brought to enforce any such liability with legal counsel chosen by the
Seller and reasonably acceptable to the Indemnified Parties. In the event the
Seller elects to assume the defense of any such suit and retain such legal
counsel, any Indemnified Party that is a defendant in the suit may retain
additional legal counsel but shall bear the legal fees and disbursements of such
legal counsel unless (i) the Seller and such Indemnified Party shall have
mutually agreed to the retention of such legal counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include the Seller and
such Indemnified Party, and representation of both such parties by the same
legal counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Seller shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the legal fees and disbursements of more than one legal counsel
(in addition to any local counsel necessary to the conduct of defense in such
proceeding or proceedings) for all the Indemnified Parties and that all such
legal fees and disbursements shall be reimbursed by the Seller as they are
incurred. The Seller shall not be liable to indemnify any person for any
settlement of any claim effected without
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the Seller's consent, provided that if any claim is settled with such consent or
if there is a final judgment against any Indemnified Party, the Seller agrees to
indemnify the Indemnified Parties from and against any losses, claims, damages,
liabilities or expenses by reason of such settlement or judgment.
Notwithstanding the immediately preceding sentence, if at any time an
Indemnified Party shall have requested the Seller to reimburse the Indemnified
Party for fees and expenses of counsel retained in accordance with the fourth
sentence of this paragraph, the Seller agrees that it shall be liable for any
settlement of any claim effected without its consent if (x) such settlement is
entered into more than 60 days after the receipt by the Seller of such request
and (y) the Seller shall not have reimbursed such Indemnified Party in
accordance with such request prior to the date of such settlement. The Seller
shall not, without the prior written consent of any Indemnified Party, effect
any settlement of any pending or threatened proceeding in respect of which such
Indemnified Party is or could reasonably have been a party and indemnity is or
could have been sought hereunder by such Indemnified Party unless such
settlement includes an unconditional release of such Indemnified Party from all
liability relating to the claims that are the subject matter of such proceeding.
(b) If the indemnification provided for in Section 5(a)
above is unavailable or insufficient to hold harmless an Indemnified Party in
respect of any losses, claims, damages, liabilities or expenses (or actions in
respect thereof) referred to therein, then the Seller shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Seller on the
one hand and such Indemnified Party on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Seller or by such Indemnified Party and
such party's relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The parties hereto agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above. The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages, liabilities or
expenses (or actions in respect thereof) referred to above shall be deemed to
include any legal fees and disbursements or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
claim, except where such Indemnified Party is required to bear such expenses
pursuant to this Section 5, which expenses the Seller shall pay as and when
incurred, at the request of such Indemnified Party, to the extent that the
Seller will be ultimately obligated to pay such expenses. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(c) The indemnity and contribution provided for in this
Section 5 shall remain operative and in full force and effect irrespective of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Purchaser or its designees, any Underwriter, any Placement Agent,
their respective officers and directors or any person who controls the Purchaser
or any Underwriter or Placement Agent, or by or on behalf of the Seller, its
directors and officers
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or any person who controls the Seller, or (iii) the acceptance of and payment
for any of the Certificates.
6. Opinion of Counsel. The Seller hereby covenants to
the Purchaser to deliver or cause to be delivered to the Purchaser in connection
with the Securitization Transaction (a) opinions of counsel for the Seller
(which may be rendered by the Seller's internal counsel) as to various corporate
matters in form satisfactory to the Purchaser and (b) opinions of counsel for
the Seller, in forms acceptable to the Purchaser, its counsel, any subsequent
purchaser of the Mortgage Loans or its counsel, and each Rating Agency, as to
such matters as shall be required for the assignment of ratings to the
Certificates or such other matters as reasonably requested by any subsequent
purchaser of the Mortgage Loans or its counsel or any Rating Agency (including,
without limitation, a "true sale" opinion) (it being agreed that such opinions
or appropriate reliance letters shall expressly provide that each Rating Agency,
each Placement Agent, each Underwriter, the Trustee and any fiscal agent shall
be entitled to rely on such opinions).
7. Cooperation. The Seller hereby agrees to furnish
any and all information, documents, certificates, letters or opinions with
respect to the Mortgage Loans reasonably requested by the Purchaser in order for
the Purchaser to perform any of its obligations or satisfy any of the conditions
on its part to be performed or satisfied pursuant to this Agreement or the
transactions contemplated by the Pooling and Servicing Agreement. The Seller
further agrees that, at the request of the Purchaser, the Seller shall use all
commercially reasonable efforts to obtain from the Borrowers of the Mortgage
Loans such current financial statements and other information as the Purchaser,
the Depositor or any Rating Agency may reasonably request in connection with the
transactions contemplated by this Agreement or the Pooling and Servicing
Agreement.
8. Costs and Expenses. The Seller agrees to pay to the
Purchaser its share (based on the ratio of the aggregate principal amount of the
Seller's Mortgage Loans to the aggregate principal amount of all Mortgage Loans
in the Securitization Transaction) of the transaction costs and expenses with
respect to the Securitization Transaction in accordance with that certain Loan
Seller Agreement.
9. Notices. All communications hereunder shall be in
writing and effective only upon receipt and, if sent to the Purchaser, will be
mailed, delivered or transmitted by facsimile and confirmed to it at the
following:
<TABLE>
<CAPTION>
<S> <C>
Clay Lebhar John Mulligan
Investment Banking Commercial Mortgage
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza, 18th Floor One New York Plaza, 15th Floor
New York, New York 10292-2018 New York, New York 10292-2015
Telecopy No.: (212) 778-5099 Telecopy No.: (212) 778-1905
30
<PAGE>
David Rodgers Fred Robustelli, Esq.
Investment Banking Law Department
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza, 18th Floor One New York Plaza, 30th Floor
New York, New York 10292-2018 New York, New York 10292
Telecopy No.: (212) 778-5099 Telecopy No.: (212) 214-7938
If sent to the Seller, will be mailed, delivered or transmitted by facsimile and
confirmed to it at the following:
Mark Jarrell Dave Goodwin
Greenwich Capital Financial Products, Inc. Greenwich Capital Financial Products, Inc.
600 Steamboat Road 600 Steamboat Road
Greenwich, CT 06830 Greenwich, CT 06830
Telecopy No.: (203) 618-2134 Telecopy No.: (203) 618-2134
Chris McCormick Andrew Snow
Greenwich Capital Financial Products, Inc. Greenwich Capital Financial Products, Inc.
600 Steamboat Road 600 Steamboat Road
Greenwich, CT 06830 Greenwich, CT 06830
Telecopy No.: (203) 618-2052 Telecopy No.: (203) 618-2149
If sent to the Rating Agencies, will be mailed, delivered or transmitted by
facsimile and confirmed to the respective Rating Agency at the following:
Joan Biro Nicholas Levidy
Standard & Poors Moody's Investors Service, Inc.
26 Broadway 99 Church Street
New York, New York 10003 New York, New York 10007
Telecopy No.: (212) 208-1967 Telecopy No.: (212) 553-1350
or such other address as may hereafter be furnished to or by the other party or
any Rating Agency by like notice.
</TABLE>
10. Trustee as Beneficiary. The representations,
warranties and agreements made by the Seller in this Agreement are made for the
benefit of the Depositor, the Trustee and the Certificateholders and may be
enforced by the Depositor and the Trustee to the same extent that the Purchaser
has rights against the Seller under this Agreement in respect of the
representations, warranties and agreements made by the Seller herein, and all
such representations and warranties shall survive delivery of the respective
Mortgage Loan Documents to any subsequent purchaser and to the Trustee and to
the Servicer.
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11. Successors and Assigns. This Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder, other than as otherwise expressly provided herein.
12. Governing Law. This Agreement will be governed by
and construed in accordance with the substantive laws of the State of New York
(without regard to conflicts of laws principles), and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
13. Miscellaneous.
(a) Subject to Section 13(b) hereof, neither this
Agreement nor any term hereof may be amended, modified, waived, discharged or
terminated except by a writing signed by the party against whom enforcement of
such amendment, modification, waiver, discharge or termination is sought.
(b) In the event the Underwriting Agreement is
terminated pursuant to a failure of a condition precedent set forth therein,
this Agreement shall automatically terminate, and thereafter no party to this
Agreement shall have any further rights or obligations hereunder other than
pursuant to any provision which expressly provides that it survives the
termination of this Agreement.
(c) Subsequent to any Securitization Transaction, this
Agreement shall not be changed in any manner which would have a material adverse
effect on the Certificateholders without the prior written consent of the
Trustee. Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely conclusively upon an opinion of counsel at
the expense of the party requesting such amendment stating that the execution of
such amendment is authorized or permitted by this Agreement. The Trustee may,
but shall not be obligated to, consent to any amendment which affects the
Trustee's own rights, duties or immunities under this Agreement.
(d) This Agreement may be executed in any number of
counterparts, each of which shall, for all purposes, be deemed to be an original
and all of which shall together constitute but one and the same instrument.
(e) If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then, to the extent permitted by applicable law, 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.
(f) This Agreement supersedes all prior or
contemporaneous agreements and understandings relating to the subject matter
hereof.
(g) It is the express intent of the parties hereto that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all
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<PAGE>
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not the intention of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to secure a debt or other obligation
of the Seller. However, in the event that, notwithstanding the intent of the
parties, the Mortgage Loans are held to continue to be property of the Seller
then (i) this Agreement shall also be deemed to be a security agreement under
applicable law; (ii) the transfer of the Mortgage Loans provided for herein
shall be deemed to be a grant by the Seller to the Purchaser of a first priority
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property; (iii) the possession by the Purchaser or any successor thereto of the
related Notes and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the Purchaser's security interest
pursuant to Section 9-305 of the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; and (iv)
notifications to Persons holding such property, and acknowledgments, receipts or
confirmations from Persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser or any
successor thereto for the purpose of perfecting such security interest under
applicable law. Any assignment of the interest of the Purchaser pursuant to any
provision hereof shall also be deemed to be an assignment of any security
interest created hereby.
14. Third Party Beneficiary.
(a) The Underwriters and Placement Agents are intended
third party beneficiaries of the representations, warranties, covenants and
indemnities made by the Seller in Section 5 of this Agreement and, to the extent
they affect the rights of the Underwriters and Placement Agents as third party
beneficiaries under such Section 5, the covenants of the Seller made in the
other provisions of this Agreement. It is acknowledged that such
representations, warranties, covenants and indemnities of the Seller may be
enforced by the Underwriters and Placement Agents to the same extent as if they
were parties hereto.
(b) Each of the officers, directors, employees,
controlling persons and Affiliates of the Underwriters and Placement Agents is
an intended third party beneficiary of the representations, warranties,
covenants and indemnities of the Seller made in Section 5 of this Agreement and,
to the extent they affect the rights of such persons and entities as third party
beneficiaries under such Section 5, the covenants of the Seller made in the
other provisions of this Agreement. It is acknowledged that such
representations, warranties, covenants and indemnities of the Seller may be
enforced by or on behalf of such persons or entities against the Seller to the
same extent as if any such person or entity was a party hereto.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
34
<PAGE>
ANNEX A
MORTGAGE LOAN CHARACTERISTICS SCHEDULE
[See Attached Pages]
Annex A-1-1
<PAGE>
ANNEX B
CERTAIN DEFINED TERMS
"Additional Loan Characteristics Schedule": As defined in the
Recitals.
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled by" have meanings correlative to the foregoing.
"Agreement": As defined in the Preamble.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value of such Mortgaged Property as determined by an appraisal thereof
made not more than one year prior to the origination date of the related
Mortgage Loan and reviewed by the Seller.
"Assignment of Leases, Rents and Profits": With respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
agreement executed by the Borrower, assigning to the mortgagee all of the
income, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered by the Borrower, as amended,
modified, renewed or extended through the date hereof and from time to time
hereafter.
"Assignment of Mortgage": An assignment of mortgage without
recourse, notice of transfer or equivalent instrument, in recordable form, which
is sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording.
"Borrower": With respect to each Mortgage Loan, any obligor on
any related Note.
"Breach": As defined in Section 3(b).
"CERCLA": Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as
amended (42 U.S.C. ss.ss. 9601 et seq.).
"Certificateholders": As defined in the Recitals.
"Certificates": As defined in the Recitals.
"Closing Date.": As defined in Section 1(b).
Annex B-1
<PAGE>
"Commission": Securities and Exchange Commission.
"Computational Materials": As defined in the no-action letter
dated May 20, 1994, issued by the Division of Corporation Finance of the
Commission to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated and Kidder Structured Asset Corporation and the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Associates.
"Custodian": As defined in Section 1(d).
"Cut-off Date": As defined in Section 1(a).
"Defective Mortgage Loan": As defined in Section 3(b).
"Defective Document Mortgage Loan": As defined in Section
3(b).
"Depositor": As defined in the Recitals.
"Due Date": With respect to any Mortgage Loan, the date on
which scheduled payments are due on such Mortgage Loan (without regard to grace
periods), such day being for all Mortgage Loans the first day of each month.
"Environmental Law": Any environmental law, ordinance, rule,
regulation or order of a federal, state or local governmental authority,
including, without limitation, CERCLA, the Hazardous Material 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, as amended (42 U.S.C. ss.ss. 7401 et seq.) and the regulations promulgated
pursuant thereto.
"Environmental Report": With respect to each Mortgaged
Property, the environmental audit report or reports required in connection with
the origination of the related Mortgage Loan.
"Fee Interest": As defined in Section 2(b)(xxxi).
"Ground Lease": As defined in Section 2(b)(xxxi).
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA, or any other Environmental Laws now
existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum
and petroleum products, urea formaldehyde and any substances classified as being
"in inventory", "usable work in process" or similar classification which would,
if classified as unusable, be included in the foregoing definition.
"Indemnified Parties": As defined in Section 5(a).
Annex B-2
<PAGE>
"Legal Summary": With respect to any Mortgage Loan, the "Legal
Summary" prepared by the related Seller in connection with the origination of
such Mortgage Loan, substantially in the form of the sample Legal Summary
previously submitted to the Purchaser, with all blanks completed.
"Loan Agreement": With respect to any Mortgage Loan, the loan
agreement, if any, between the Seller and the Borrower, pursuant to which such
Mortgage Loan was made.
"Maturity Date": With respect to any Mortgage Loan, the
maturity date as set forth in the applicable Mortgage Loan Characteristics
Schedule.
"Moody's": Moody's Investors Service, Inc., and its successors
in interest.
"Mortgage File": As defined in Section 1(c).
"Mortgage Loan Characteristics Schedule": As defined in the
Recitals.
"Mortgage Loan Control #": With respect to any Mortgage Loan,
the "Control Number" assigned to such Mortgage Loan for purposes of the
Securitization Transaction as set forth on the applicable Mortgage Loan
Characteristics Schedule.
"Mortgage Loan Documents": Any and all documents contained in
the Mortgage File and the Servicing File.
"Mortgage Loans": As defined in the Recitals.
"Mortgaged Property": The underlying property securing a
Mortgage Loan, consisting of a fee simple or leasehold estate in a parcel of
land improved by a commercial property, together with any personal property,
fixtures, leases and other property or rights pertaining thereto.
"Mortgage Rate": With respect to each Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan (in the absence of a
default), as set forth in the applicable Mortgage Loan Characteristics Schedule.
"Note": With respect to any Mortgage Loan as of any date of
determination, the note or other evidence of indebtedness and/or agreements
evidencing the indebtedness of the related Borrower under such Mortgage Loan,
including any amendments or modifications, or any renewal or substitution notes,
as of such date.
"Originator": With respect to a Mortgage Loan, the originator
of such Mortgage Loan, as identified in the Mortgage Loan Characteristics
Schedule.
"Person": Any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
estate, unincorporated organization or government or any agency or political
subdivision thereof.
Annex B-3
<PAGE>
"Placement Agents": As defined in the Recitals.
"Pooling and Servicing Agreement": As defined in the Recitals.
"Private Placement Memorandum": The Private Placement
Memorandum relating to the Privately Offered Certificates dated July __, 1999.
"Prospectus": The prospectus dated October 29, 1998, as
supplemented by a prospectus supplement to be dated on or about July __, 1999
(the "Prospectus Supplement"), relating to the Publicly Offered Certificates.
"PSI": As defined in the Recitals.
"Purchaser": As defined in the Preamble.
"Qualified Mortgage": 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 Regulations 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage), or any substantially similar
successor provision.
"Rating Agency": Each of S&P or Moody's.
"Registration Statement": The registration statement No.
_________ filed by the Purchaser on Form S-3 and declared effective on _______,
1998.
"Requested Disclosure Information": As defined in Section 4.
"Reserve Accounts": As defined in Section 1(a).
"S&P": Standard & Poor's Ratings Services.
"Securities Act": As defined in the Recitals.
"Securitization Transaction": As defined in the Recitals.
"Seller": As defined in the Preamble.
"Servicer": As defined in the Recitals.
"Special Servicer": As defined in the Recitals.
"Trustee": As defined in the Recitals.
"Trust Fund": As defined in the Recitals.
"Underwriters": As defined in the Recitals.
Annex B-4
<PAGE>
ANNEX C
DISCLOSURES
<PAGE>
EXHIBIT G-2
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
-----------------------------------------
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT (this "Agreement") dated
July 22, 1999, is between NATIONAL REALTY FINANCE L.C., a Missouri limited
liability company (the "Seller"), NATIONAL REALTY FUNDING L.C., a Missouri
limited liability company ("NRF"), and PRUDENTIAL SECURITIES CREDIT CORP., a
Delaware corporation (the "Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller has originated or otherwise acquired certain fixed rate
mortgage loans;
WHEREAS, the Seller, NRF as an Affiliate of the Seller, the Purchaser, and
Prudential Securities Incorporated, an Affiliate of the Purchaser ("PSI"), are
parties to that certain Mortgage Loan Securitization Agreement dated as of June
10, 1997 (the "Securitization Agreement"), which contemplates, among other
things, the disposition of commercial mortgage loans through a whole loan
securitization transaction (the "Securitization Transaction");
WHEREAS, in order to effect the Securitization Transaction, the Seller
desires to sell to Purchaser on the Closing Date (as hereinafter defined), and
the Purchaser desires to purchase from the Seller, certain mortgage loans
(collectively, the "Mortgage Loans"), all of which are described in, and set
forth in, the schedule attached hereto as Annex A (the "Mortgage Loan
Characteristics Schedule");
WHEREAS, on the Closing Date the Purchaser intends to sell the Mortgage
Loans to Prudential Securities Secured Financing Corporation, an Affiliate of
the Purchaser (the "Depositor") which will deposit the Mortgage Loans in a trust
fund (the "Trust Fund"), the beneficial ownership of which will be evidenced by
the Commercial Mortgage Pass-Through Certificates, Series 1999-C2, Class A-1,
Class A-2, Class A-EC1, Class A-EC2, 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 and Class R-II (collectively, the "Certificates") issued to certain
purchasers of the Certificates (collectively, the "Certificateholders") pursuant
to the Pooling and Servicing Agreement dated as of July 1, 1999 (the "Pooling
and Servicing Agreement") by and among the Depositor, National Realty Funding
L.C., as servicer (in such capacity, the "Servicer") and special servicer (in
such capacity, the "Special Servicer"), and The Chase Manhattan Bank, as trustee
(in such capacity, the "Trustee") (capitalized terms used herein and not defined
herein or in Annex B attached hereto shall have the respective meanings ascribed
to such terms in the Pooling and Servicing Agreement);
WHEREAS, the Depositor intends to sell the Class A-1, Class A-2, Class B,
Class C, Class D, Class E and Class F Certificates (collectively, the "Publicly
Offered Certificates") registered under the Securities Act of 1933, as amended
(the "Securities Act") to PSI and Greenwich NatWest Limited, as agent for
National Westminster Bank Plc. ("GNL"), as underwriters (in such capacities, the
"Underwriters") pursuant to an Underwriting Agreement to be dated the date
hereof (the "Underwriting Agreement");
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WHEREAS, the Depositor intends to sell the Class A-EC1, Class A-EC2, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class R-I and
Class R-II Certificates (the "Privately Offered Certificates") to PSI and GNL,
as placement agents (in such capacities, the "Placement Agents"), pursuant to a
Certificate Purchase Agreement to be dated on or about the date hereof (the
"Certificate Purchase Agreement"), as described in a Private Placement
Memorandum relating thereto, to be dated the date hereof (the "Private Placement
Memorandum"); and
WHEREAS, the Purchaser, in reliance on the representations, warranties and
covenants of the parties contained herein, has agreed to enter into and effect
the Securitization Transaction, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated into the operative provisions of this Agreement by this reference,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby conclusively acknowledged, the parties hereto hereby agree as
follows:
1. Purchase Proceeds; Purchase and Sale; Delivery of Mortgage Files.
(a) On the Closing Date, the Seller hereby agrees to sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase all of the Seller's right, title and interest
in and to the Mortgage Loans and the related mortgage loan documents
(collectively, the "Mortgage Loan Documents"), including, without limitation:
(i) all scheduled payments of interest and principal due on or with respect to
each Mortgage Loan after July 1, 1999 (the "Cut-off Date"); (ii) all other
payments of interest and principal received on or with respect to each Mortgage
Loan after the Cut-off Date, other than any such payments of interest or
principal which were allocable to a period on or prior to the Cut-off Date;
(iii) all of the Seller's right, title and interest in and to the proceeds of
any related title, hazard or other insurance policies received on or with
respect to any Mortgage Loan after the Cut-off Date; and (iv) all reserve
accounts and escrow accounts, if any, established pursuant to the related
Mortgage Loan Documents (collectively, the "Reserve Accounts"), and all of the
Seller's right, title and interest in and to the funds therein.
(b) The Purchaser shall purchase the Mortgage Loans and the Mortgage Loan
Documents and pay the Seller an amount of the purchase proceeds determined in
accordance with that certain Loan Seller Agreement, dated May 24, 1999, between
the Seller, Bridger Commercial Realty Finance LLC, and Greenwich Capital
Financial Products, Inc. (the "Loan Seller Agreement") (the "Purchase
Proceeds"). The Purchase Proceeds shall be paid to the Seller by wire transfer
in immediately available funds on the date of the consummation of the
Securitization Transaction (the "Closing Date") (or by such other method as the
Purchaser and the Seller may agree), with such later adjustments as provided for
in the Loan Seller Agreement. The closing for the purchase and sale of the
Mortgage Loans shall take place at the offices of Latham & Watkins, 885 Third
Avenue, New York, New York 10022.
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<PAGE>
(c) The Seller hereby agrees to deliver to the Purchaser or its designee,
within the respective time periods described below, the following documents or
instruments with respect to each Mortgage Loan:
(i) the original of the related Note, endorsed by the Seller in blank or in
the following form: "Pay to the order of The Chase Manhattan Bank, as
Trustee, for the registered holders of Prudential Securities Secured
Financing Corporation Commercial Mortgage Pass-Through Certificates, Series
1999-C2, without recourse", which the Purchaser or its designee is authorized
to complete and which Note and all endorsements thereof shall show a complete
chain of endorsement from the Originator to the Seller;
(ii) (a) the related original recorded Mortgage or a copy thereof certified
by the related title insurance company, public recording office or closing
agent to be in the form in which executed and submitted for recording, (b)
the related original recorded Assignment of Mortgage from the Originator to
the Seller, or a copy thereof certified by the related title insurance
company, public recording office or closing agent to be in the form in which
executed and submitted for recording, and (c) the related original Assignment
of Mortgage executed by the Seller in blank, which the Purchaser or its
designee is authorized to complete (and but for the insertion of the name of
the assignee and any related recording information which is not yet available
to the Seller, is in suitable form for recordation in the jurisdiction in
which the related Mortgaged Property is located);
(iii) (a) if the related security agreement is separate from the Mortgage,
the original security agreement or a counterpart thereof, (b) if the security
agreement is not assigned under the Assignments of Mortgage described in
clause (ii) above, the related original assignment of such security agreement
from the Originator to the Seller or a counterpart thereof, and (c) the
related original assignment of such security agreement executed by the Seller
in blank, which the Purchaser or its designee is authorized to complete;
(iv) (a) a copy of each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property, (b) a copy of each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement to the Seller from the Originator, and (c) a copy of each
Form UCC-2 or UCC-3 assignment, if any, of such financing statement executed
by the Seller in blank, which the Purchaser or its designee is authorized to
complete (and but for the insertion of the name of the assignee and any
related filing information which is not yet available to the Seller, is in
suitable form for filing in the filing office in which such financing
statement was filed);
(v) the related original of the Loan Agreement, if any, relating to such
Mortgage Loan or a counterpart thereof;
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<PAGE>
(vi) the related original lender's title insurance policy (or the original
pro forma title insurance policy), together with any endorsements thereto;
(vii) if any related Assignment of Leases, Rents and Profits is separate
from the Mortgage, (a) the original recorded Assignment of Leases, Rents and
Profits or a copy thereof certified by the related title insurance company,
public recording office or closing agent to be in the form in which executed
and submitted for recording, (b) the related original recorded reassignment
of such instrument, if any, from the Originator to the Seller or a copy
thereof certified by the related title insurance company, public recording
office or closing agent to be in the form in which executed and submitted for
recording, and (c) the related original reassignment of such instrument, if
any, executed by the Seller in blank, which the Purchaser or its designee is
authorized to complete (and but for the insertion of the name of the assignee
and any related recording information which is not yet available to the
Seller, is in suitable form for recordation in the jurisdiction in which the
related Mortgaged Property is located) (any of which reassignments, however,
may be included in a related Assignment of Mortgage and need not be a
separate instrument);
(viii) if any related assignment of contracts is separate from the
Mortgage, the original assignment of contracts or a counterpart thereof, and
if the assignment of contracts is not assigned under the Assignments of
Mortgage described in clause (ii) above, the related original reassignment of
such instrument from the Originator to the Seller or a counterpart thereof
and the related original reassignment of such instrument executed by the
Seller in blank, which the Purchaser or its designee is authorized to
complete;
(ix) with respect to the related Reserve Accounts, if any, a copy of the
original of any separate agreement with respect thereto between the related
Borrower and the Originator;
(x) the original of any other written agreement, instrument or document
securing such Mortgage Loan, including, without limitation, originals of any
guarantees with respect to such Mortgage Loan or the original letter of
credit, if any, with respect thereto, together with any and all amendments
thereto, including, without limitation, any amendment which entitles the
Purchaser or its designee to draw upon such letter of credit, and the
original of each instrument or other item of personal property given as
security for a Mortgage Loan possession of which by a secured party is
necessary to a secured party's valid, perfected, first priority security
interest therein, together with all assignments or endorsements thereof
necessary to entitle the Purchaser or its designee to enforce a valid,
perfected, first priority security interest therein;
(xi) with respect to the related Reserve Accounts, if any, (a) a copy of
the UCC-1 financing statements, if any, submitted for filing with respect to
the Originator's security interest in such Reserve Accounts and all funds
contained therein, (b) a copy of each Form UCC-2 or UCC-3 assignment, if any,
of such financing statement from the Originator to the Seller, and (c) a copy
of each Form UCC-2 or UCC-3
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<PAGE>
assignment, if any, of such financing statement executed by the Seller in
blank which the Purchaser or its designee is authorized to complete (and but
for the insertion of the name of the assignee and any related filing
information which is not yet available to the Seller is in suitable form for
filing in the filing office in which such financing statement was filed); and
(xii) copies of any and all amendments, modifications and supplements to,
and waivers related to, any of the foregoing.
Such documents and instruments relating to each Mortgage Loan are
collectively referred to herein as the "Mortgage File". In connection with the
Seller's delivery of Mortgage Loan Documents in accordance with this Section
1(c), the Seller hereby authorizes the Purchaser or its designee to complete
each endorsement or assignment in blank appearing thereon in such manner as the
Purchaser or its designee shall determine in the exercise of its sole discretion
(provided that such endorsement or assignment will be without recourse,
representation or warranty except as expressly set forth in this Agreement). In
addition, all funds held by the Seller in the Reserve Accounts shall be
delivered to the Purchaser or its designee on or before the Closing Date.
If the Seller cannot deliver, or cause to be delivered, as to any of the
Mortgage Loans, the original or a copy of any of the documents and/or
instruments referred to in this Section 1(c)(ii)(a) or (b), (iv)(a) or (b),
(vii)(a) or (b), (xi)(a) or (b) and (xii), with (if appropriate) evidence of
recording or filing, as the case may be, thereon, solely because of a delay
caused by the public recording or filing office where such document or
instrument was submitted for recording or filing, the delivery requirements set
forth above shall be deemed to have been satisfied as to such missing document
or instrument, and such missing document or instrument shall be deemed to have
been included in the related Mortgage File, provided that the Seller has
delivered to the Purchaser or its designee on or before the Closing Date a copy
of such document or instrument (without evidence of recording or filing thereon,
but certified (which certificate may relate to multiple documents and/or
instruments) by the Seller to be a true and complete copy of the original
thereof submitted for recording or filing, as the case may be), and the Seller
shall deliver to or at the direction of the Purchaser or its designee, promptly
following the receipt thereof, the original of such missing document or
instrument (or a copy thereof) with (if appropriate) evidence of recording or
filing, as the case may be, thereon. If the Seller cannot deliver, or cause to
be delivered, as to any of the Mortgage Loans, the original of any of the
documents referred to in clause 1(c)(ii)(a) or (b) or (vii)(a) or (b) solely
because the public recording office retains the original assignment, then the
Seller, at its expense, shall deliver to the Purchaser or its designee a copy of
the recorded original. If the Seller cannot deliver, or cause to be delivered,
as to any of the Mortgage Loans, the original or a copy of the related lender's
title insurance policy referred to in clause (vi) solely because such policy has
not yet been issued, the delivery requirements set forth above shall be deemed
to be satisfied as to such missing document, and such missing document shall be
deemed to have been included in the related Mortgage File, provided that the
Seller has delivered to the Purchaser or its designee on or before the Closing
Date a commitment for title insurance "delivered" at the closing of such
Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser or its designee, promptly following the receipt thereof, the original
lender's title insurance policy (or a copy thereof).
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<PAGE>
Notwithstanding the immediately preceding paragraph, the failure to deliver
the originals or copies of any of the documents or instruments referred to in
this Section 1(c)(ii)(a) or (b), (iv)(a) or (b), (vii)(a) or (b), (xi)(a) or (b)
and (xii) within 120 days after the Closing Date shall cause the related
Mortgage Loan to become a Defective Document Mortgage Loan under Section 3
hereof.
In addition, the Seller shall be required to deliver to the Purchaser or
its designee all other Mortgage Loan Documents related to such Mortgage Loan
that are not required to be delivered pursuant to clauses (i) through (xii)
above, including without limitation a copy of the Management Agreement, if any,
for the related Mortgaged Property; a copy of the related ground lease, as
amended, if any, for such Mortgaged Property; any and all amendments,
modifications and supplements to, and waivers related to, any of the foregoing;
copies of the related Appraisals, surveys, environmental reports, leases and
other similar documents; and any other written agreements related to, or
documents obtained or maintained in connection with the origination of, such
Mortgage Loan.
(d) The Mortgage Loans shall be sold to the Purchaser on a
servicing-released basis. In accordance with the Pooling and Servicing
Agreement, the Servicer shall assume responsibility for the servicing of each
Mortgage Loan immediately upon the Closing Date. The Seller shall cooperate in
all reasonable respects with the Purchaser and the Servicer in connection with
such transfer of servicing responsibilities effective on the Closing Date. The
Seller and the Purchaser acknowledge that certain third parties currently act as
custodian with respect to the Mortgage Loans. Effective upon deposit of the
Mortgage Loans in the Trust Fund on the Closing Date, the Trust Fund shall
appoint The Chase Manhattan Bank to act as custodian (in such capacity, the
"Custodian") for the Trust Fund with respect to the original Mortgage Files
pursuant to the Pooling and Servicing Agreement. The Seller agrees to cooperate
with the Purchaser and the Custodian in connection with the transfer of the
Mortgage Files to the Custodian and to provide such documents, information and
instructions as shall be reasonably necessary or convenient with respect
thereto. Effective on the Closing Date, the Seller shall provide the Purchaser
(or the Servicer or other designee of the Purchaser) with copies of the Mortgage
Files and specific assignments of the Mortgage Loan Documents pursuant to
Section 1 above and such other documents and information as the Purchaser shall
reasonably request.
2. Representations and Warranties.
(a) Each of the Seller and NRF hereby represents and warrants to the
Purchaser and its successors and assigns as provided in this Agreement (subject
to the qualifications with respect to matters of enforceability set forth below
in Section 2(c)) as of the date hereof and as of the Closing Date that:
(i) Due Organization; Qualification. It is a limited liability company duly
organized, validly existing and in good standing under the laws of the State
of Missouri, is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and the assignment thereof to the
Purchaser as herein provided and to perform its duties and obligations under
this Agreement.
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(ii) Authority. It has the full power, authority and legal right to execute
and deliver this Agreement (and all agreements executed and delivered by it
in connection herewith) and to perform all transactions contemplated by this
Agreement (and all agreements executed and delivered by it in connection
herewith). It has duly authorized the execution, delivery and performance of
this Agreement (and all agreements executed and delivered by it in connection
herewith), and has duly executed and delivered this Agreement (and all
agreements executed and delivered by it in connection herewith). This
Agreement (and each agreement executed and delivered by it in connection
herewith), assuming due authorization, execution and delivery by each other
party hereto (and thereto), constitutes its legal, valid and binding
obligation enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally, by
general principles of equity and by any applicable anti-deficiency laws
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(iii) No Conflicts. Neither the execution and delivery of this Agreement
nor the fulfillment of or compliance with the terms and conditions of this
Agreement by it will (A) conflict with or result in a breach of any of the
terms, conditions or provisions of its certificate of organization, as
amended, or other organizational documents or any agreement or instrument to
which it is now a party or by which it (or any of its properties) is bound,
or constitute a default or result in an acceleration of indebtedness under
any of the foregoing; (B) conflict with or result in a breach of any legal
restriction if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or any Mortgage Loan, or (2) for it to
perform its duties and obligations under this Agreement (or any agreement
executed and delivered by it in connection herewith); (C) result in the
violation of any law, rule, regulation, order, judgment or decree to which it
(or any of its properties) is subject if compliance therewith is necessary
(1) to ensure the enforceability of this Agreement, or (2) for it to perform
its duties and obligations under this Agreement (or any agreement executed
and delivered by it in connection herewith); or (D) result in the creation or
imposition of any lien, charge or encumbrance that would have a material
adverse effect upon any of its properties pursuant to the terms of any
mortgage, deed of trust, contract or other instrument or materially impair
the ability of the Purchaser to realize on any Mortgage Loan.
(iv) Solvency. It is solvent and the execution, delivery and performance of
this Agreement (A) will not cause it to become insolvent, and (B) is not
intended by it to hinder, delay or defraud any of its creditors.
(v) No Consent Required. No consent, approval, authorization or order of,
or registration or filing with, or notice to, any court or governmental
agency or body having jurisdiction or regulatory authority over it (or any of
its properties) is required for (A) its execution and delivery of this
Agreement (and each agreement executed and delivered by it in connection
herewith) or (B) the consummation by it of the transactions contemplated by
this Agreement (and each agreement executed and delivered by it in connection
herewith) or, to the extent so required, such consent, approval,
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authorization, order, registration, filing or notice has been obtained, made
or given (as applicable), except that (1) it may not be duly qualified to
transact business as a foreign limited liability company or licensed in one
or more states if such qualification or licensing is not necessary for it to
perform its duties and obligations under this Agreement (or any agreement
executed and delivered by it in connection herewith) and (2) it makes no
representation with respect to any required registration under the Securities
Act or any state securities or "Blue Sky" laws in connection with the
Securitization Transaction.
(vi) Ability to Perform. It does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant of it
contained in this Agreement (or any agreement executed and delivered by it in
connection herewith).
(vii) No Litigation Pending. There are no actions, suits or proceedings
with respect to which it has received service of process or, to its
knowledge, threatened against it which draw into question the validity of
this Agreement or which (if decided adversely to it), either in any one
instance or in the aggregate, would result in any material adverse change in
its business, operations, or financial condition or would materially impair
its ability to perform its duties and obligations under this Agreement (or
any agreement executed and delivered by it in connection herewith).
(viii) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement (and each agreement executed and delivered by
the Seller in connection herewith) is in the ordinary course of business of
the Seller, and the sale, transfer, assignment and conveyance of the Notes
and the Mortgages by the Seller pursuant to this Agreement are not subject to
the bulk transfer or any similar statutory provisions in effect in any
applicable jurisdiction.
(ix) No Brokers. It has not dealt with any Person (other than the
Purchaser) that may be entitled, by reason of any act or omission by it, to
any commission or compensation in connection with this Agreement or the
transactions contemplated hereby.
(x) No Untrue Information. Insofar as relates to the Mortgage Loans, the
Seller or NRF, no statement, report, or other document relating to any
Mortgage Loan furnished by or on behalf of the Seller or any Affiliate
thereof in writing (including electronic media), specifically identified in
writing (including electronic media) as being furnished for use in connection
with the preparation of the Prospectus or Private Placement Memorandum,
contains any untrue statement by the Seller or any Affiliate thereof of any
material fact or an omission by the Seller or any Affiliate thereof of a
material fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading.
(xi) No Default. It is not in default or breach of any agreement or
instrument to which it is now a party or by which it (or any of its
properties) is bound which breach or default would materially and adversely
affect its ability to perform its obligations under this Agreement.
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(b) Each of the Seller and NRF (with respect to each Mortgage Loan unless
otherwise indicated) hereby represents and warrants to the Purchaser and its
successors and assigns as provided in this Agreement (subject to the
qualifications with respect to matters of enforceability set forth below in
Section 2(c)) that as of the date specified below or, if no such date is
specified, as of the date hereof, and as of the Closing Date and subject to the
exceptions disclosed on Annex C attached hereto:
(i) Mortgage Loan Characteristics. The information set forth in the
Mortgage Loan Characteristics Schedule is true, correct and complete in all
material respects; provided, however, that with respect to the information
set forth with respect to each Mortgage Loan under the captions "Physical
Occupancy %," "Occupancy As of Date," "1997 NOI," "1998 NOI," "Underwritten
NOI," "Underwritten Net Cash Flow" and "Underwritten NOI DSCR", the Seller
represents only that such information is a correct and accurate reproduction
or derivation, as adjusted by the Seller in accordance with its customary
underwriting practices and procedures, of the information provided to it by
the related Borrower (or an affiliate or principal thereof) and takes no
responsibility for the accuracy or completeness of any such information
provided by the related Borrower (or such affiliate or principal); provided,
further, however, that the Seller has no actual knowledge that such
information is incorrect, inaccurate or incomplete following the reasonable
and customary due diligence performed by the Seller in connection with its
origination or purchase of the Mortgage Loans.
(ii) Domestic Borrower. The related Borrower is an individual who is a
citizen of, or an entity organized under the laws of, a state of the United
States of America.
(iii) Single-Purpose, Bankruptcy Remote Entity. Each Borrower of a Mortgage
Loan in excess of $25,000,000 is an entity which has represented in
connection with the origination of the Mortgage Loan, or whose organizational
documents as of the date of origination of the Mortgage Loan provide that so
long as the Mortgage Loan is outstanding it will be a single-purpose entity
whose activities and ability to incur debt are restricted by the applicable
Mortgage or the organizational documents in a manner intended to make the
likelihood of bankruptcy proceedings being commenced by or against such
Borrower remote, and as to which the Borrower has delivered an opinion of
counsel concerning substantive non-consolidation and as to which the Borrower
has at least one independent director. For this purpose, "single-purpose
entity" shall mean a Person, other than an individual, which does not engage
in any business unrelated to the related Mortgaged Property and its
financing, does not have any assets other than those related to its interest
in such Mortgaged Property or its financing, or any indebtedness other than
as permitted by the related Mortgage or the other Mortgage Loan Documents,
has its own books and records separate and apart from any other Person and
holds itself out as being a legal entity, separate and apart from any other
Person.
(iv) Delivery of Mortgage Loans Documents. The Seller has caused or will
cause to be delivered to the Purchaser (or its designee) within the time
period
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prescribed in Section 1 each of the documents comprising the Mortgage File
for such Mortgage Loan.
(v) Payment Current. All payments required to be made with respect to such
Mortgage Loan under the terms of the related Note or the related Mortgage
(inclusive of any applicable grace or cure period) up to the Closing Date
have been made. Within the twelve months preceding the Closing Date, there
has not been any delinquency in excess of 30 days with respect to such
Mortgage Loan.
(vi) Equity Participation or Participation Interest. Such Mortgage Loan
contains no equity participation by the Seller and is a whole loan and not a
participation interest. Neither the related Note nor the related Mortgage
provides for negative amortization or any contingent or additional interest
in the form of participation in the cash flow of the related Mortgaged
Property. The Seller has no ownership interest in such Mortgaged Property or
the related Borrower other than in such Mortgage Loan being sold and
assigned. Neither the Seller nor any affiliate of the Seller has any
obligation to make any capital contributions to the related Borrower under
the Mortgage or any other related Mortgage Loan Document.
(vii) Compliance with Applicable Laws. As of the date of its origination,
such Mortgage Loan either complied with, or was exempt from, applicable
federal or state laws, regulations and other requirements pertaining to
usury. To the best of the Seller's knowledge, as of the date of origination
of such Mortgage Loan, the related originator complied in all material
respects with the requirements of any and all other federal, state or local
laws applicable to the origination, servicing and collection of such Mortgage
Loan. No governmental or regulatory approval or consent is required for the
sale of such Mortgage Loan by the Seller, and the Seller has full right,
power and authority to sell such Mortgage Loan. To the extent necessary to
ensure the enforceability of such Mortgage Loan and the effective sale,
transfer and assignment thereof and of the related Note, the originator
and/or the Seller each was qualified and appropriately licensed to transact
business in the jurisdiction in which the related Mortgaged Property is
located at the time such entity had possession of the related Note.
(viii) Proceeds Fully Disbursed. The proceeds of such Mortgage Loan have
been fully disbursed (although certain reserve accounts controlled by the
Seller may have been established as described in the Mortgage Loan
Characteristics Schedule), and there is no requirement for future advances
thereunder.
(ix) Origination Expenses Paid. All costs, fees and expenses incurred in
connection with the origination and closing of such Mortgage Loan, including,
without limitation, recording costs and fees, have been paid to the
appropriate person or arrangements have been made for their payment to the
appropriate person on a timely basis by the related Borrower.
(x) Documents Valid. Each of the related Note, the related Mortgage and any
other related Mortgage Loan Document is the legal, valid and binding
obligation
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of the related Borrower, the related guarantor or other party executing such
document (subject to any non-recourse or partial recourse provisions
contained therein), and is enforceable in accordance with its terms (subject
to the qualifications set forth in Section 2(c)). There is no valid offset,
defense, counterclaim or right of rescission with respect to such Note,
Mortgage or any other Mortgage Loan Document, nor will the operation of any
of the terms of such Note or Mortgage, or the exercise of any right
thereunder, render either such Note or Mortgage unenforceable or subject to
any valid offset, defense, counterclaim or right of rescission, including,
without limitation, the defense of usury, and the Seller has no knowledge
that any such offset, defense, counterclaim, or right of rescission has been
asserted or is available with respect thereto. Except as described in the
immediately following sentence, the related Note and the related Mortgage do
not require the related mortgagee to release any portion of the related
Mortgaged Property except upon payment in full of such Mortgage Loan or the
exercise of a defeasance feature. In the case of certain Mortgaged Properties
securing cross-collateralized Mortgage Loans, certain Mortgage Loans secured
by multiple Mortgaged Properties, and certain Mortgage Loans secured by one
or more parcels constituting a single Mortgaged Property, the related
mortgagee may be required to release a Mortgaged Property or a portion
thereof upon payment of a portion of the related Mortgage Loan as specified
in the related Mortgage Loan Documents.
(xi) Assignment of Mortgage; Note Endorsement. The related Assignment of
Mortgage (but for the insertion of the name of the assignee and any related
recording information which is not yet available to the Seller) is or will be
in recordable form and constitutes or will constitute the Seller's legal,
valid and binding assignment to the Purchaser of the related Mortgage and any
related Assignment of Leases, Rents and Profits or assignment of Assignment
of Leases, Rents and Profits. The Seller's endorsement and delivery of the
related Note to the Purchaser in accordance with the terms of this Agreement
constitutes or will constitute the Seller's legal, valid and binding
assignment to the Purchaser of such Note, and together with the Seller's
execution and delivery of such Assignment of Mortgage to the Purchaser,
legally and validly conveys or will convey all right, title and interest of
the Seller in such Mortgage Loan to the Purchaser.
(xii) First Lien. Based on the related policy of title insurance (or pro
forma or specimen policy or "marked-up" commitment for title insurance), the
related Mortgage is a legal, valid and enforceable first lien on the related
Mortgaged Property (including all buildings and improvements on such
Mortgaged Property and all installations and mechanical, electrical,
plumbing, heating and air conditioning systems located in or annexed to such
buildings, and all additions, alterations and replacements made at any time
prior to the closing date of such Mortgage Loan with respect to the
foregoing, but excluding any related personal property) which Mortgaged
Property is free and clear of all liens and encumbrances having priority over
or equal to the first lien of such Mortgage, except for (A) the lien of
current real estate taxes and special assessments not yet delinquent or
accruing interest or penalties, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date of
recording of such Mortgage which do not materially and adversely (1) affect
the value of such
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Mortgaged Property as security for such Mortgage Loan, or (2) interfere with
the related Borrower's ability to make required interest and principal
payments or to make use of such Mortgaged Property for the intended purposes
therefor, (C) leases and subleases pertaining to such Mortgaged Property
which the Seller did not require to be subordinated to the lien of such
Mortgage; provided that such leases and subleases, if any, are with entities
which are not affiliated with the Seller, and (D) other matters which do not,
individually or in the aggregate, materially and adversely (1) affect the
value of such Mortgaged Property as security for such Mortgage Loan, or (2)
interfere with the related Borrower's ability to make required principal and
interest payments or to make use of such Mortgaged Property for the intended
purposes therefor.
(xiii) No Modification, Release or Satisfaction. Except by a written
instrument which has been delivered to the Purchaser or its designee as a
part of the related Mortgage File, (A) neither the related Note nor the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has been impaired, waived, modified, altered,
satisfied, canceled or subordinated or rescinded, (B) the related Mortgaged
Property has not been released from the lien of such Mortgage and (C) the
related Borrower has not been released from its obligations under such
Mortgage, in whole or in any part, in each such event in a manner which would
materially interfere with the benefits of the security intended to be
provided by such Mortgage.
(xiv) Defeasance. A Mortgage Loan which permits defeasance provides that,
after the applicable Defeasance Lockout Period, the related Borrower may
obtain the release of all or a portion of the related Mortgaged Property from
the lien of the related Mortgage upon the pledge to the Trustee of
non-callable U.S. Treasury or other non-callable U.S. government obligations
that provide for payments on or prior to all successive payment dates to
maturity (or, in the case of an ARD Loan, through the related Anticipated
Repayment Date) in the amounts due on such dates and upon the satisfaction of
certain other conditions. A Mortgage Loan containing a defeasance provision
has a Defeasance Lockout Period of not less than two years after the Closing
Date or includes other conditions precedent the satisfaction of which will
ensure that the exercise of such a feature will not cause a REMIC to fail to
be a REMIC. In certain cases, the Mortgage Loans require that a REMIC opinion
be provided as a condition to exercise of any defeasance option, and the
Mortgage or the other related Mortgage Loan Documents generally require the
satisfaction of one or more of the following conditions prior to the
defeasance of the related Mortgaged Property:
(A) the related Borrower must provide the mortgagee with a prior
written notice of not less than 30 days;
(B) the related Borrower must either (i) deliver to the mortgagee or
the servicer of the Mortgage Loan, as the case may be, government
obligations described above in this Section 2(b)(xiv) or (ii) pay to the
mortgagee or the servicer of the Mortgage Loan, as the case may be, an
amount sufficient to purchase the government obligations described above in
this Section 2(b)(xiv);
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(C) the related Borrower must provide a written confirmation from the
Rating Agencies indicating that such defeasance will not result in a
reduction, withdrawal or qualification of the respective ratings of any
outstanding Classes of Certificates;
(D) the related Borrower must deliver an officer's certificate to the
effect that all of its obligations with respect to the Mortgage Loan have
been satisfied and that the Mortgage Loan is not in default; and
(E) the related Borrower must undertake to provide such other
documents or information as the mortgagee may reasonably request in
connection with such defeasance.
(xv) No Delinquent Taxes or Assessments. All tax or governmental
assessments, or installments thereof, which were due on or prior to the date
of origination had been paid as of such date and the Seller knows of no tax
or governmental assessment, or if payable in installments, any installment
thereof, which became due and owing thereafter and prior to the Closing Date
in respect of the related Mortgaged Property, which, if left unpaid, would
be, or might become, a lien on such Mortgaged Property having priority over
the related Mortgage which has become delinquent such that (A) such tax,
assessment or installment has commenced to accrue interest or penalties, or
(B) the applicable taxing authority may commence proceedings to collect such
tax, assessment or installment, as applicable.
(xvi) Escrow or Reserve Deposits. As of the Closing Date: (A) the related
Reserve Account(s), if any, contain all escrow deposits and other payments
required by the terms of the related Mortgage Loan Documents (inclusive of
any applicable grace or cure period) to be held by the Seller as of the
Closing Date; and (B) the Seller is transferring all amounts on deposit in
the related Reserve Account(s) on the Closing Date to the Purchaser or to the
extent not being transferred to the Purchaser, all escrow deposits and other
payments required under the related Note, the related Mortgage and any other
related Mortgage Loan Documents have been applied in accordance with their
intended purposes by the related mortgage loan originator, the related Seller
or its agent.
(xvii) No Third Party Advances. The Seller has not, directly or indirectly,
(A) advanced funds, (B) induced or solicited any payment from a Person other
than the related Borrower, or (C) to the Seller's knowledge, received any
payment other than from such Borrower, for the payment of any amount required
under the related Note or the related Mortgage, except for interest accruing
from the date of such Note or the date of disbursement of the proceeds of
such Mortgage Loan, whichever is later, to the date which precedes by 30 days
the first Due Date under such Note.
(xviii) No Condemnation or Damages. To the best of the Seller's knowledge,
no proceedings for the total or partial condemnation of the related Mortgaged
Property (A) have occurred since the date as of which the appraisal relied
upon in the
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origination of such Mortgage Loan was prepared, or (B) are pending or
threatened other than, in each such case, proceedings as to partial
condemnation which do not materially and adversely affect the value of such
Mortgaged Property as security for such Mortgage Loan. To the best of
Seller's knowledge, the related Mortgaged Property is free of material
damage. The related Mortgage requires that any related condemnation award be
applied either to the restoration of the related Mortgaged Property or to the
payment of the outstanding principal balance of or accrued interest on such
Mortgage Loan.
(xix) No Mechanics' Liens. To the Seller's knowledge, the related Mortgaged
Property (excluding any related personal property) (i) is free and clear of
any mechanics' and materialmen's liens or liens in the nature thereof, and
(ii) no rights are outstanding that, under applicable law, could give rise to
any such liens, any of which liens are or may be prior to, or equal with, the
lien of the related Mortgage, except, with respect to (i) and (ii) above,
those which are insured against by the related lender's title insurance
policy referred to in Section 2(b)(xxiii) below.
(xx) Title Survey: Improvements; Separate Tax Parcels. The Seller has
delivered an as-built survey, a survey recertification, a site plan, a
recorded plat or the like with respect to the related Mortgaged Property
which satisfied, or the Seller otherwise satisfied, the requirements of the
related title insurance company for deletion of the standard general
exceptions for encroachments, boundary and other survey matters and for
easements not shown by the public records from the related title insurance
policy, except with respect to any related Mortgaged Property located in a
jurisdiction (such as the State of Texas where survey title insurance
coverage is prohibited by law) in which the exception for easements not shown
by the public records could not be deleted and such standard general
exception is customarily accepted by prudent commercial mortgage lenders in
such jurisdiction. Except for encroachments and similar matters which are
inconsequential, do not materially and adversely affect the value of such
Mortgaged Property as security for such Mortgage Loan, or are insured against
by the related lender's title insurance policy described in Section
2(b)(xxiii) below, surveys and/or title insurance obtained at the time of the
origination of such Mortgage Loan indicated or insured that (A) none of the
improvements which were included for the purpose of determining the Appraised
Value of such Mortgaged Property in the related appraisal at the time of the
origination of such Mortgage Loan lie outside the boundaries and building
restriction lines of such Mortgaged Property, and (B) no improvements on
adjoining properties encroach upon such Mortgaged Property. The related
Mortgaged Property constitutes one or more complete separate tax lots or is
subject to an endorsement under the related lender's title insurance policy.
(xxi) Title. The Seller has good title to and is the sole owner and
beneficial holder of such Mortgage Loan. The Seller has full power, authority
and legal right to sell and assign such Mortgage Loan hereunder, is the sole
mortgagee or beneficiary of record under the related Mortgage and is
transferring such Mortgage Loan to the Purchaser free and clear of any and
all liens, encumbrances, participation interests, pledges, charges or
security interests of any nature encumbering such Mortgage Loan.
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(xxii) Compliance with Laws. To the best of the Seller's knowledge (based
upon a letter or letters from governmental authorities, a legal opinion, an
endorsement or endorsements to the related title insurance policy, a
representation of the related Borrower at the time of origination of such
Mortgage Loan or other information reasonably acceptable to the Seller at the
time of its origination thereof), (A) no improvements located on or forming a
part of the related Mortgaged Property are in violation of any applicable
zoning and building laws or ordinances, (B) the related Mortgaged Property
complies with all other laws and regulations pertaining to the use and
occupancy thereof (excluding Environmental Laws which are addressed in
Sections 2(b)(xxxiv) and 2(b)(xxxv) below) and all applicable insurance
requirements, (C) such Borrower has obtained all inspections, licenses,
permits, authorizations, and certificates necessary for such compliance,
including, but not limited to, certificates of occupancy (if available), and
(D) the Seller has not received notification from any governmental authority
that such Mortgaged Property violates or does not comply with such laws or
regulations or is being used, operated or occupied unlawfully or that such
Borrower has failed to obtain such inspections, licenses, permits,
authorizations, or certificates, except for such violation or non-compliance
(1) which does not materially and adversely affect the value of such
Mortgaged Property as security for such Mortgage Loan or the use for which
such Mortgaged Property was intended at the time of origination of such
Mortgage Loan, (2) which is specifically addressed by the appraiser in the
determination of the related Appraised Value, or (3) for which a Reserve
Account held for the Seller has been established in an amount sufficient to
pay for the estimated costs to correct such violations or non-compliance.
(xxiii) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy or, if an ALTA lender's title insurance
policy is unavailable, another state-approved form of lender's title
insurance policy issued in an amount not less than the stated principal
amount of such Mortgage Loan (after all advances of principal) insuring the
Seller and its successors and assigns that the related Mortgage is a valid
first lien on the related Mortgaged Property, subject only to exceptions
described in Section 2(b)(xii) above (or, if such a title insurance policy
has not yet been issued in respect of such Mortgage Loan, such a policy will
be issued and is currently evidenced by a pro forma or specimen policy or by
a "marked-up" commitment for title insurance which was furnished by the
related title insurance company for purposes of closing such Mortgage Loan).
The premium for such title insurance policy has been paid in full and such
title insurance policy is (or, when issued, will be) in full force and
effect, and upon endorsement and delivery of the related Note to the
Purchaser and recording of the related Assignment of Mortgage in favor of the
Purchaser in the applicable real estate records, such title insurance policy
will inure to the benefit of the Purchaser. Such title insurance policy (A)
does not contain the standard general exceptions for encroachments, boundary
or other survey matters and for easements not shown by the public records,
other than matters which do not materially and adversely (1) affect the value
of the related Mortgaged Property as security for the Mortgage Loan, or (2)
interfere with the related Borrower's ability to make required principal and
interest payments or to make use of such Mortgaged Property for the intended
purposes, and (B)
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only contains such exceptions for encroachments, boundary and other survey
matters as are customarily accepted by prudent commercial mortgage lenders.
The Seller and its agents have not taken, or failed to take, any action that
would materially impair the coverage benefits of any such title insurance
policy. The Seller has not made any claim under such title insurance policy.
(xxiv) Insurance Related to Mortgaged Property. All improvements on the
related Mortgaged Property are insured by (A) a fire and extended perils
insurance policy providing coverage on a full replacement cost basis in an
amount not less than the lesser of (1) the full replacement cost of all
improvements to such Mortgaged Property, and (2) the outstanding principal
balance of such Mortgage Loan, but in any event in an amount sufficient to
avoid the operation of any co-insurance provisions contained in such
insurance policy, which policy contains a standard mortgagee clause naming
the originator or the Seller and its successors as additional insureds; (B)
an insurance policy providing business interruption or rental continuation
coverage in an amount not less than the income anticipated from 12 months of
operations of such Mortgaged Property; (C) a comprehensive general liability
insurance policy in an amount not less than $1,000,000 per occurrence; and
(D) if any material improvement on such Mortgaged Property is located in an
area identified by the Federal Emergency Management Agency as having special
flood hazards under the National Flood Insurance Act of 1968, as amended, a
flood insurance policy providing coverage in an amount not less than the
lesser of (1) the stated principal amount of the related Note, and (2) the
maximum amount of insurance available under the Flood Disaster Protection Act
of 1973, as amended. As of the Closing Date, the insurance premium for each
such insurance policy shall have been paid or escrowed. Each such insurance
policy contains a clause providing that it is not terminable and may not be
reduced without 30 days' prior written notice to the mortgagee (except that,
in the event of nonpayment of insurance premiums, each such insurance policy
provides for termination upon not less than 10 days' prior written notice),
and no such notice has been received by the Seller. With respect to each such
insurance policy, the Seller has received a certificate of insurance or
similar document dated within the last 12 months to the effect that such
insurance policy is in full force and effect. The Seller has no knowledge of
any action, omission, misrepresentation, negligence or fraud which would
result in the failure of any such insurance policy. The related Mortgage Loan
Documents require the related Borrower or a tenant of such Borrower to
maintain each such insurance policy at its expense, but authorizes the
mortgagee to maintain any such insurance policy at the related Borrower's
expense upon such Borrower's or such tenant's failure to do so (subject to
any applicable notice or cure periods). The related Mortgage and insurance
policy require that any related insurance proceeds, in excess of a specified
amount, will be applied either to the repair or restoration of all or part of
the related Mortgaged Property or to the payment of the outstanding principal
balance of or accrued interest on such Mortgage Loan.
(xxv) UCC Financing Statements. One or more Uniform Commercial Code
financing statements covering all furniture, fixtures, equipment and other
personal property (A) which are collateral under the related Mortgage or
under a security or similar agreement executed and delivered in connection
with such Mortgage Loan, and (B) in
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which a security interest can be perfected by the filing of Uniform
Commercial Code financing statement(s) under applicable law have been filed
or recorded (or have been sent for filing or recording) wherever necessary to
perfect under applicable law a security interest in such furniture, fixtures,
equipment and other personal property (including rights under leases and all
agreements affecting the use, enjoyment or occupancy of all or any part of
the Mortgaged Property and hotel room revenues).
(xxvi) Default, Breach and Acceleration. There is no material default,
breach, violation or event of acceleration existing under the related loan
agreement, related Note or the related Mortgage. The Seller has no knowledge
of any event (other than failure to make payments due but not yet delinquent)
which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event
of acceleration thereunder. The Seller has no knowledge that the related
Borrower is a debtor in any state or federal bankruptcy or insolvency
proceeding.
(xxvii) Customary Provisions. The related Note and the related Mortgage,
together with applicable state law, contain customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property
of the benefits of the security, including, but not limited to, judicial or,
if applicable, non-judicial foreclosure.
(xxviii) Access Routes. (A) Surveys, title insurance reports, the title
insurance policy or other relevant documents contained in the related
Mortgage File indicate that at the time of origination of such Mortgage Loan
the related Borrower had sufficient rights with respect to amenities, ingress
and egress and similar matters identified in the appraisal of the related
Mortgaged Property as being critical to the Appraised Value thereof, and (B)
such Mortgaged Property was receiving services from public or private water,
sewer and other utilities that were adequate as of the date that the Mortgage
Loan was originated, and none of such services is subject to revocation as a
result of a foreclosure or change in ownership of an adjacent property.
(xxix) Mortgage Loans Secured by Ground Lease but Not Fee Interest. With
respect to each Mortgage Loan that is secured in whole or in part by the
interest of the related Borrower as lessee under a ground lease of all or a
portion of the related Mortgaged Property (a "Ground Lease"), but the related
fee interest in the portion of such Mortgaged Property covered by such Ground
Lease (the "Fee Interest") is not subject or subordinate to the lien of the
related Mortgage, the Seller hereby represents and warrants that:
(A) as of the date of the closing of such Mortgage Loan, such Ground
Lease is in full force and effect, and such Ground Lease or a memorandum
thereof has been duly recorded in the applicable real estate records and
(1) such Ground Lease (or the related estoppel letter or lender protection
agreement between the Seller and related lessor) does not prohibit the
interest of the related lessee thereunder from being encumbered by the
related Mortgage and
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does not restrict the use of the related Mortgaged Property of such lessee
in a manner that would interfere with the related Borrower's ability to
make required principal and interest payments or to make use of such
Mortgaged Property for the intended purposes, or a separate written
agreement permitting such encumbrance has been obtained, and (2) there
have been no material changes in the terms of such Ground Lease that would
be binding on the mortgagee as successor to the lessee except as set forth
in written instruments which are part of the related Mortgage File;
(B) based on the related policy of title insurance, the related
lessee's leasehold interest in the portion of the related Mortgaged
Property covered by such Ground Lease is not subject to any liens or
encumbrances securing indebtedness which are superior to, or of equal
priority with, the related Mortgage, except for liens of current real
estate taxes and special assessments not yet delinquent or accruing
interest or penalties;
(C) the related lessee's interest in such Ground Lease may be
transferred to the Purchaser and its successors and assigns through a
foreclosure of the related Mortgage or conveyance in lieu of foreclosure
and, thereafter, may be transferred to another Person by the related
mortgagee and its successors and assigns, upon notice to, but without the
consent of, the related lessor (or, if any such consent is required, either
(1) it has been obtained prior to the Closing Date, or (2) it may not be
unreasonably withheld) provided that such Ground Lease has not been
terminated and all amounts owed thereunder have been paid;
(D) the related lessor is required to give notice of any default under
such Ground Lease by the related lessee to the mortgagee either under the
terms of such Ground Lease or under the terms of a separate estoppel letter
or written agreement;
(E) the related mortgagee is entitled, under the terms of such Ground
Lease or a separate estoppel letter or written agreement, to receive notice
of any default by the related lessee under such Ground Lease, and after any
such notice, is entitled to not less than the time provided to the related
lessee under such Ground Lease to cure such default, which is curable
during such period before the lessor may terminate the Ground Lease; all
rights of the related lessee under the Ground Lease may be exercised by or
on behalf of the mortgagee;
(F) the currently effective term of such Ground Lease (excluding any
extension or renewal which is not binding on the lessor thereunder) extends
not less than 10 years beyond the Maturity Date of such Mortgage Loan;
(G) such Ground Lease does not impose any restrictions on subletting
which the Seller considered to be commercially unreasonable at the
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time of its origination or purchase of such Mortgage Loan or that a
prudent commercial mortgage lender would have considered unreasonable at
such date;
(H) to the Seller's knowledge as of the Closing Date, (1) no event of
default has occurred under such Ground Lease and (2) no event has occurred
which, with the passage of time, the giving of notice or both (other than
rental or other payments being due, but not yet delinquent), would result
in a default or an event of default under the terms of such Ground Lease;
(I) the related lessor has agreed in a writing included in the related
Mortgage File that such Ground Lease may not be amended, modified,
cancelled or terminated without the prior written consent of the Seller or
the mortgagee and that any such action without such consent is not binding
upon the mortgagee, its successors and assigns. Unless the mortgagee fails
to cure a default of the lessee under the Ground Lease following notice
thereof from the lessor as set forth in (E) above, the lessor is required
to enter into a new ground lease upon termination of such Ground Lease for
any reason (including, without limitation, rejection of such Ground Lease
in a bankruptcy proceeding);
(J) under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award (other
than in respect of a total or substantially total loss or taking) will be
applied either to (1) the repair or restoration of all or part of the
related Mortgaged Property covered by such Ground Lease, with the mortgagee
or a trustee appointed by it having the right to hold and disburse such
proceeds as such repair or restoration progresses (except where such
Mortgage Loan provides that the related Borrower or its agent may hold and
disburse such proceeds with respect to any loss or taking less than a
stipulated amount not greater than $50,000), or (2) the payment of the
outstanding principal balance of and accrued interest on such Mortgage
Loan; and
(K) there are no existing mortgages on the Fee Interest which can be
foreclosed upon that are not subject to the Ground Lease, and the
provisions of the Ground Lease and/or other documents related thereto and
included as part of the related Mortgage File preclude the creation of any
future mortgage on the Fee Interest that can be foreclosed upon not subject
to the Ground Lease.
(xxx) Deed of Trust. With respect to any related Mortgage that is a deed of
trust or trust deed, a trustee, duly qualified under applicable law to serve
as such, has either been properly designated and currently so serves or may
be substituted in accordance with applicable law. Except in connection with
(A) a trustee's sale after default by the related Borrower or (B) the release
of the related Mortgaged Property following the payment of the related
Mortgage Loan in full, no fees or expenses are payable by the Seller or the
Purchaser to such trustee.
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(xxxi) Cross-Security. The related Mortgaged Property is not collateral or
security for the payment or performance of (A) any other obligations owed to
the originator of such Mortgage Loan or the Seller other than another
Mortgage Loan being sold, transferred and assigned by the Seller under this
Agreement, or (B) to the Seller's knowledge, any other obligations owed to
any Person other than the Seller. The related Note is not secured by any
property other than a Mortgaged Property.
(xxxii) Assignment of Leases, Rents and Profits. Unless the related
Mortgaged Property is occupied by the related Borrower, the related Mortgage
Loan Documents contain the provisions of an Assignment of Leases, Rents and
Profits or include a separate Assignment of Leases, Rents and Profits or
assignment of Assignment of Leases, Rents and Profits. Any related Assignment
of Leases, Rents and Profits incorporated within the related Mortgage or set
forth in a separate Mortgage Loan Document creates on recordation (with the
same priority as the related Mortgage) a valid assignment of, or security
interest in, the right to receive all payments due under the related leases,
if any.
(xxxiii) REMIC. (A) Such Mortgage Loan is principally secured by an
interest in real property and either (1) the fair market value of such real
property was at least equal to 80% of the adjusted issue price of such
Mortgage Loan on the date of origination of such Mortgage Loan or, if such
Mortgage Loan has been "significantly modified" within the meaning of Section
1001 of the Code, on the date of such modification (unless such modification
may be disregarded under Treas. Reg. Sec. 1.860G-2(b)(3)), or (2)
substantially all of the proceeds of such Mortgage Loan were used to acquire
or improve or protect an interest in real property that, at origination of
such Mortgage Loan, was the only security for such Mortgage Loan; (B) such
Mortgage Loan contains no equity participation by the Seller, and neither the
related Note nor the related Mortgage provides for any contingent or
additional interest in the form of participation in the cash flow or proceeds
realized on disposition of the related Mortgaged Property; and (C) such
Mortgage Loan is a "qualified mortgage" as defined in, and for purposes of,
Section 860G(3)(A) of the Code and provides for the payments of interest at a
fixed rate or at a rate described in Treas. Reg. Sec. 1.860G-1(a)(3).
(xxxiv) Environmental Site Assessments. Environmental Site Assessments
(collectively, the "ESAs"), transaction screen assessments, studies or
updates prepared or obtained in connection with the origination of such
Mortgage Loan identified no material adverse environmental conditions or
circumstances anticipated to require any material expenditure with respect to
any Mortgaged Property, except for: (A) those cases where such conditions or
circumstances were investigated further and, based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation; (B) those cases in which an operations and
maintenance plan was recommended by the environmental consultant and such
plan was obtained or an escrow reserve established to cover the estimated
costs of obtaining such plan; (C) those conditions in which soil or
groundwater contamination was suspected or identified and either (1) such
condition or circumstance was remediated or abated prior to the origination
date of the related Mortgage Loan, (2) a "no further action" letter was
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obtained from the applicable regulatory authority, or (3) either an
environmental insurance policy was obtained, a letter of credit provided, an
escrow reserve account established, or an indemnity from the responsible
party was obtained, to cover the estimated costs of any required
investigation, testing, monitoring or remediation; or (D) those cases in
which (1) a leaking underground storage tank or groundwater contamination was
identified to be located on or to have originated from an offsite property,
(2) a responsible party has been identified under applicable law, and (3)
either such condition is not known to have affected the Mortgaged Property or
the responsible party has either received a "no further action" letter from
the applicable regulatory agency, established a remediation fund, or provided
a guaranty or indemnity to the related Borrower.
(xxxv) Notice of Environmental Problem. Other than with respect to any
conditions identified in the ESAs, transaction screen assessments, studies or
updates referred to in Section 2(b)(xxxiv) above, the Seller: (A) has not
received actual notice from any federal, state or other governmental
authority of (1) any failure of the related Mortgaged Property to comply with
any applicable Environmental Laws, or (2) any known or threatened release of
Hazardous Materials on or from such Mortgaged Property in violation of any
applicable Environmental Laws; (B) has not received actual notice from the
related Borrower that (1) such Borrower has received any such notice from any
such governmental authority, (2) such Mortgaged Property fails to comply with
any applicable Environmental Laws, or (3) such Borrower has received actual
notice that there is any known or threatened release of Hazardous Materials
on or from such Mortgaged Property in violation of any applicable
Environmental Laws; or (C) has no actual knowledge that (1) the related
Mortgaged Property fails to materially comply with any applicable
Environmental Laws or (2) there has been any known or threatened release of
Hazardous Materials on or from such Mortgaged Property where such release
falls outside the exceptions (A) through (D) of Section 2(b)(xxxiv) above.
(xxxvi) Recourse. The related Mortgage Loan Documents contain standard
provisions providing for recourse against the related Borrower or a principal
of such Borrower for damages sustained in connection with the Borrower's
fraud, material misrepresentation or misappropriation of any tenant security
deposits, rent, insurance proceeds or condemnation proceeds. The related
Mortgage Loan Documents contain provisions pursuant to which the related
Borrower or a principal of such Borrower has agreed to indemnify the
mortgagee for damages resulting from violations of any applicable
Environmental Laws.
(xxxvii) Environmental Compliance. Each Mortgage Loan contains either a
representation, warranty or covenant that the related Borrower will not use,
cause or permit to exist on the related Mortgaged Property any Hazardous
Materials in violation of any applicable Environmental Laws or an indemnity
with respect to any such violation in favor of the Seller.
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(xxxviii)Inspection The Seller or originator has inspected the related
Mortgaged Property or caused such Mortgaged Property to be inspected within
the 12 months preceding the Closing Date.
(xxxix) Subordinate Debt. Except as has been disclosed in the Mortgage Loan
Characteristics Schedule, the related Mortgage contains a provision for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan in the event that the related Borrower encumbers the related Mortgaged
Property without the prior written consent of the mortgagee thereunder.
(xl) Common Ownership. To Seller's knowledge, no two properties securing
Mortgage Loans are directly or indirectly under common ownership except to
the extent that such common ownership and the ownership structure have been
specifically disclosed in the Mortgage Loan Characteristics Schedule and
Annex A and Annex C to the Prospectus Supplement.
(xli) Operating or Financial Statement. The related Mortgage Loan Documents
require the related Borrower to furnish to the mortgagee at least annually an
operating statement with respect to the related Mortgaged Property or, in the
case of a borrower-occupied Mortgaged Property, a financial statement with
respect to the related Borrower.
(xlii) Litigation. To the best of the Seller's knowledge as of the date of
origination or purchase of such Mortgage Loan, and to the Seller's knowledge
thereafter, there is no pending action, suit, proceeding, arbitration or
governmental investigation with respect to the related Borrower or Mortgaged
Property which if determined adversely to the related Borrower would have a
material adverse effect on the value of the related Mortgaged Property or
such Borrower's ability to continue to perform its obligations under such
Mortgage Loan.
(xliii) Assisted Living Loans and Nursing Home Loans. If the Mortgage Loan
is secured in whole or in part by a Mortgage on a Mortgaged Property operated
as a Facility, based upon due diligence performed in the origination of the
related Mortgage Loan, and to its knowledge as of the date hereof:
(A) All governmental licenses, permits, regulatory agreements or other
approvals or agreements necessary or desirable for the use and operation of
the Facility as intended, including, without limitation, a valid
certificate of need or similar certificate, license, or approval issued by
the applicable department of health for the requisite number of beds, and
approved provider status in any approved provider payment program, were, as
of the related date of origination, held by the related Mortgagor or the
operator of the Facility and were in full force and effect; and
(B) In connection with the most recent governmental inspection of the
Facility (a) the Facility had not received a "Level A" (or equivalent)
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violation that has not been cured to the satisfaction of the applicable
governmental agency, (b) no statement of charges or deficiencies had been
made or penalty enforcement action has been undertaken against the
Facility, its operator or the Mortgagor or against any officer, director or
stockholder of such operator or the Mortgagor by such governmental agency,
(c) there were no violations that threatened the Facility's, the operator's
or the Mortgagor's certification for participation in Medicare or Medicaid
or any other third-party payor program, (d) to the Seller's knowledge, the
Mortgagor and Facility comply with all federal, state and local laws,
regulations, quality and safety standards, accreditation standards and
requirements of the applicable state department of health and (e) there was
no threatened or pending revocation, suspension, termination, probation,
restriction, limitation, or nonrenewal affecting the Mortgagor, such
operator or the Facility or any participation or provider agreement with
any third-party payor to which the Mortgagor or such operator is subject.
(xliv) ARD Loans. With respect to each Mortgage Loan that is an ARD Loan,
it commenced amortizing on its initial scheduled Due Date (or, in the case of
certain interest-only Mortgage Loans, as otherwise set forth in the related
Notes) and provides that: (A) the spread used in calculating its Mortgage
Rate will increase by no more than five percent (5%) in connection with the
passage of its Anticipated Repayment Date; (B) its Anticipated Repayment Date
is of the term specified in the Mortgage Loan Characteristics Schedule and
the Additional Loan Characteristics Schedule following the origination of
such Mortgage Loan; (C) no later than the related Anticipated Repayment Date,
if it has not previously done so, the related Borrower is required to enter
into a "lockbox agreement" whereby all revenue from the related Mortgaged
Property shall be deposited directly into a designated account controlled by
the Servicer; and (D) any cash flow from the related Mortgaged Property that
is applied to amortize such Mortgage Loan following its Anticipated Repayment
Date shall, to the extent such net cash flow is in excess of the Monthly
Payment payable therefrom, be net of budgeted and discretionary (Servicer
approved) capital expenditures.
(xlv) Due-on-Sale. The related Mortgage contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
mortgagee, the related Mortgaged Property subject to such Mortgage is
directly or indirectly transferred or sold; provided that certain of the
Mortgages permit (A) changes in ownership between existing partners and
members, (B) transfers to family members (or trusts for the benefit of family
members), affiliated companies and certain specified individuals and
entities, (C) issuance by the related borrower of new partnership or
membership interests, (D) certain other changes in ownership for estate
planning purposes, or (E) certain other transfers similar in nature to the
foregoing.
(xlvi) Loan Origination; Loan Underwriting. Each Mortgage Loan was
originated by the related Seller, an affiliate of the related Seller or an
originator approved by the related Seller, or was purchased by the related
Seller, and each Mortgage Loan substantially complied with all of the terms,
conditions and requirements of the related
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Seller's underwriting standards in effect at the time of its origination or
purchase of such Mortgage Loan, subject to such exceptions as the related
Seller approved.
(c) Each representation and warranty of the Seller and/or NRF set forth in
Section 2(a) or 2(b) of this Agreement, to the extent related to the
enforceability of any instrument, agreement or other document or as to offsets,
defenses, counterclaims or rights of rescission related to such enforceability
is qualified to the extent that (i) enforcement may be limited (A) by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, (B) by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and (C) by any applicable anti-deficiency law or statute; and (ii)
such instrument, agreement or other document may contain certain provisions
which may be unenforceable in accordance with their terms, in whole or in part,
but the unenforceability of such provisions will not (subject to the
qualification in clause (i), above) (A) cause the related Note or the related
Mortgage to be void, (B) invalidate the related Borrower's obligation to pay
interest at the stated interest rate of such Note on, and repay the principal
of, the related Mortgage Loan in accordance with the payment terms of such Note,
such Mortgage and other written agreements delivered to the Seller or NRF in
connection therewith, (C) invalidate the obligation of any related guarantor to
pay guaranteed obligations with respect to interest at the stated interest rate
of such Note on, and the principal of, such Mortgage Loan in accordance with the
payment terms of such guarantor's written guaranty, (D) impair the mortgagee's
right to accelerate and demand payment of interest at the stated interest rate
of such Note on, and principal of, such Mortgage Loan upon the occurrence of a
legally enforceable default, or (E) impair the mortgagee's right to realize
against the related Mortgaged Property by judicial or, if applicable,
non-judicial foreclosure.
(d) Each of the Seller and NRF agrees that it shall, at the request of the
Purchaser in connection with the consummation of the Securitization Transaction,
deliver to the Purchaser (i) certified copies of its articles of organization,
operating agreement and a certificate of good standing dated as of a recent date
and (ii) an officer's certificate of each of the Seller and NRF to the effect
that each of its representations and warranties contained in Section 2 of this
Agreement is true and correct in all material respects as of the Closing Date,
except to the extent that such representation and warranty specifically relates
to an earlier date, in which case such representation was true and correct in
all material respects as of such earlier date.
(e) The Purchaser hereby represents and warrants to the Seller and NRF as
of the Closing Date that:
(i) Due Organization; Qualification. It is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its duties
and obligations under this Agreement.
(ii) Authority. It has the full power, authority and legal right to execute
and deliver this Agreement (and all agreements executed and delivered by it
in connection herewith) and to perform all transactions contemplated by this
Agreement
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(and all agreements executed and delivered by it in connection herewith). It
has duly authorized the execution, delivery and performance of this Agreement
(and all agreements executed and delivered by it in connection herewith), and
has duly executed and delivered this Agreement (and all agreements executed
and delivered by it in connection herewith). This Agreement (and each
agreement executed and delivered by it in connection herewith), assuming due
authorization, execution and delivery by each other party hereto (and
thereto), constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, by general principles of equity
and by any applicable anti-deficiency laws (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(iii) Solvency. It is solvent and the purchase of the Mortgage Loans will
not cause it to become insolvent.
3. Remedies for Breach of Certain Representations and Warranties.
(a) It is understood and agreed that the representations and warranties set
forth in this Agreement or contained in the certificates of officers of the
Seller, NRF or the Purchaser submitted pursuant hereto shall survive the sale of
the Mortgage Loans to the Purchaser and shall inure to the benefit of the
Purchaser and the Trustee (for the benefit of the Certificateholders) as the
transferee of the Purchaser, notwithstanding (i) any restrictive or qualified
endorsement on any Note, Assignment of Mortgage, Assignment of Leases, Rents and
Profits or reassignment of Assignment of Leases, Rents and Profits, (ii) any
termination of this Agreement, or (iii) the examination by any Person of, or
failure by any Person to examine, any Mortgage File.
(b) Upon the discovery by the Seller, NRF or the Purchaser that (i) a
document required to be delivered pursuant to Section 1(c) of this Agreement in
connection with any Mortgage Loan has not been executed or received or has not
been recorded or filed (if required) within the time required for delivery of
such document, appears not to be what it purports to be or has been torn,
mutilated or otherwise defaced (such Mortgage Loan, a "Defective Document
Mortgage Loan") or (ii) a breach of any of the foregoing representations and
warranties set forth in Section 2(b) or a default in the performance of any of
the covenants or other obligations of the Seller under this Agreement has
occurred (a "Breach") which, in the case of either clause (i) or (ii),
materially and adversely affects the interest of the owners of one or more
Mortgage Loans, who may include Certificateholders, the party discovering (x)
that a Mortgage Loan is a Defective Document Mortgage Loan, or (y) the existence
of a Breach (any such Mortgage Loan as described in the preceding clause (x) or
so affected by a Breach as described in preceding clause (y), a "Defective
Mortgage Loan") shall give prompt written notice thereof to the other parties
and to each Rating Agency. Within 85 days of its discovery or its receipt of
notice of any such Defective Mortgage Loan (including such notice given by the
Purchaser, the Trustee, the Servicer or any special servicer or custodian for
the Mortgage Loans), the Seller shall (i) promptly cure such defect or Breach in
all material respects, or (ii) repurchase the Defective Mortgage Loan or Loans
at the Repurchase Price for such Mortgage Loan or Loans in accordance with the
directions of the owners of such Defective Mortgage Loans; provided,
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however, if such defect or Breach cannot be cured within such 85-day period, so
long as the Seller or NRF, as applicable, shall be actively and diligently
attempting to cure such defect or Breach, such 85-day period shall be extended
for a reasonable period of time in which to effect such cure, but in any event
to a date not more than 180 days from the earlier of the date of Seller's or
NRF's, as applicable, discovery or its receipt of notice of any Defective
Mortgage Loan, provided such Defective Mortgage Loan is susceptible to such cure
within such period of time; provided, further that no such extension shall be
applicable unless the Seller or NRF, as applicable, delivers to the Purchaser
(or its successor in interest) an officer's certificate describing the measures
being taken to cure such defect or Breach, stating that the Seller or NRF, as
applicable, believes such defect or Breach will be cured within such period. If
any Mortgage Loan fails to constitute a Qualified Mortgage by reason of
defective or missing documentation as described above or a breach of a
representation, warranty, or covenant of the Seller or NRF pursuant to this
Agreement, the Seller or NRF shall correct such condition, defect or breach or
repurchase such Mortgage Loan at the Repurchase Price within 85 days of
discovery of such failure and no extension of the 85-day period shall apply. The
Repurchase Price with respect to any Mortgage Loans repurchased by the Seller or
NRF shall be paid in accordance with the Pooling and Servicing Agreement. It is
understood and agreed that the obligations of the Seller and/or NRF set forth in
this Section 3(b) to cure or repurchase a Defective Mortgage Loan constitute the
sole remedies available to the Purchaser and its successors and assigns
respecting a breach of the representations and warranties of the Seller and/or
NRF set forth in Section 2(b). It is understood and agreed that, in the event
that either the Seller or NRF fully and timely performs its obligations under
this Section 3 with respect to any defect or Breach, then the Purchaser shall
have no other right or remedy against the Seller or NRF, or their respective
successors and assigns with respect to such defect or Breach; provided, however,
that the foregoing shall not be deemed to limit the rights and remedies of the
Purchaser in the event that the Seller or NRF fails to fully and timely perform
any of its obligations under this Section 3 with respect to any defect or
Breach, in which case the Purchaser shall have the right to pursue any remedies
it may have in accordance with the terms of this Agreement, in equity or at law.
Upon any such repurchase of a Mortgage Loan by the Seller or NRF, the
Purchaser shall execute and deliver, or shall cause the owner of such Mortgage
Loan to execute and deliver, such instruments of sale, transfer or assignment
presented to it by the Seller or NRF, in each case without recourse, as shall be
necessary to vest in the Seller or NRF the legal and beneficial ownership of
such Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto), and shall deliver, or
shall cause such owner to deliver, the related Mortgage File to the Seller or
NRF or their designee after receipt of the related Repurchase Price.
(c) Except as expressly set forth in Section 3(b), no provision of this
Agreement shall be interpreted as limiting (or otherwise be deemed to limit) the
right of the Purchaser, its successors or assigns to pursue any remedies it may
have under this Agreement, in equity or at law, in connection with any breach by
the Seller or NRF of any term hereof.
(d) Each of the Seller and NRF hereby acknowledges the assignment by the
Purchaser to any subsequent purchaser of the Mortgage Loans and any subsequent
purchaser to the Trustee, in its capacity as a trustee under any Pooling and
Servicing Agreement that the
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Purchaser, any subsequent purchaser or either of their assigns may enter into,
for the benefit of the Certificateholders, of the representations and warranties
contained in this Agreement and of the obligation of the Seller and NRF to cure
or repurchase any Defective Mortgage Loans pursuant to this Section 3. The
Trustee or its designee may enforce such obligation as provided in Section 10
hereof.
4. Provision of Information. The Seller shall make available to the
Purchaser or its designees all relevant information reasonably available to the
Seller concerning the Mortgage Loans, the related Mortgaged Properties and the
related Borrowers and the Seller's business, properties and operations, as the
Purchaser may, in its sole discretion reasonably exercised, determine is
necessary in the marketing of the Certificates (including the compliance with
federal securities laws or state "Blue Sky" laws) (such information shall be
referred to as the "Requested Disclosure Information"); provided, however, that
it is understood and agreed that the Requested Disclosure Information shall not
include information as of any date after the Closing Date. As of the date such
Requested Disclosure Information was made available to the Purchaser or its
designees, such Requested Disclosure Information did not contain any untrue
statement by the Seller or any Affiliate thereof of any material fact or any
omission of the Seller or any Affiliate thereof of any information with respect
to any Mortgage Loan, the related Mortgaged Property or the related Borrower (or
the Seller's business, properties and operations) that is necessary to make such
statements with respect to such Mortgage Loan, the related Mortgaged Property or
the related Borrower (or the Seller's business, properties and operations),
taken by themselves and only in the context of the sale of the Mortgage Loans to
the Purchaser, not misleading. The Seller will, upon making available such
Requested Disclosure Information, be deemed to represent that it does not know
or have any reason to know that the Requested Disclosure Information contains
any untrue statement of any material fact or any omission of the Seller or any
Affiliate thereof of any information with respect to any Mortgage Loan, the
related Mortgaged Property or the related Borrower (or the Seller's business,
properties and operations) that is necessary to make such statements with
respect to such Mortgage Loan, the related Mortgaged Property or the related
Borrower (or the Seller's business, properties and operations), taken by
themselves and only in the context of the sale of the Mortgage Loans to the
Purchaser, not misleading. The Seller agrees that so long as any Underwriter is
required by applicable laws to deliver a prospectus in connection with any sale
of the Certificates, the Seller shall notify the Purchaser or its designee
immediately if any event shall occur or condition shall exist as a result of
which any of the Requested Disclosure Information contains an untrue statement
of a material fact or any omission of any material fact by the Seller or any
Affiliate thereof of any information with respect to any Mortgage Loan, the
related Mortgaged Property or the related Borrower (or the Seller's business,
properties and operations) that is necessary to make the statements by Seller or
any Affiliate with respect to such Mortgage Loan, the related Mortgaged Property
or the related Borrower (or the Seller's business, properties and operations),
taken by themselves and only in the context of the sale of the Mortgage Loans to
the Purchaser, not misleading. The Seller understands that the Purchaser or its
designee will use the Requested Disclosure Information in preparing the
Registration Statement (including, insofar as they are required to be filed as
part of the Registration Statement, any Computational Materials), the Prospectus
Supplement, the Private Placement Memorandum and to otherwise sell the
Certificates, and that the Purchaser or its designee shall be entitled to rely
on the true, correct and complete nature of
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<PAGE>
the Requested Disclosure Information and shall have no obligation to
independently verify any of such information furnished or to be furnished by the
Seller hereunder, provided that the Purchaser or its designee has previously
provided a copy of each of the documents referred to above in this sentence to
the Seller for the Seller's review and approval; and provided, further, that the
Seller shall not be required to provide information that specifically relates to
facts existing or events first occurring from and after the Closing Date.
5. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, each
Affiliate thereof and their respective officers and directors, and each person,
if any, who "controls" the Purchaser, and its Affiliates within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (collectively, for purposes hereof, the
"Indemnified Parties") against any and all losses, claims, damages, liabilities
or expenses (including, without limitation, the reasonable cost of investigating
and defending against any claims therefor and legal fees and disbursements
incurred in connection therewith except as otherwise provided below), joint or
several, which may be based upon the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law, by contractual
arrangement or otherwise, insofar as such losses, claims, damages, liabilities
or expenses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Prospectus Supplement, the Private Placement Memorandum or, insofar as they are
required to be filed as part of the Registration Statement, any Computational
Materials with respect to the Publicly Offered Certificates, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission (in the case of any Computational Materials, when read in
conjunction with the Prospectus and, in the case of the Private Placement
Memorandum, when read together with the other information specified therein as
being available for review by investors) to state therein a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, but only if and to the extent that
such untrue statement, alleged untrue statement, omission or alleged omission
was made in reliance upon (i) any Requested Disclosure Information furnished to
the Purchaser or its designee, directly or indirectly, by the Seller or approved
by the Seller and used in connection with the preparation of the Prospectus
Supplement, the Private Placement Memorandum or any Computational Materials
(and, if specifically pertaining to a Mortgage Loan, only to the extent that
such untrue statement, omission, or alleged omission relates to the period prior
to the Closing Date and to events occurring and facts existing prior to the
Closing Date) or (ii) any representations, warranties, statements or covenants
of the Seller and/or NRF contained in this Agreement or any document or
certificate delivered pursuant hereto (the foregoing items (i) and (ii),
collectively, the "Seller's Information"). This indemnity agreement will be in
addition to any liability the Seller may otherwise have.
In no case shall the Seller be liable with respect to any claims made
against any of the Indemnified Parties unless an Indemnified Party shall have
notified the Seller in writing of the nature of the claim within a reasonable
time after service of a summons or other first legal process that shall have
been served upon such Indemnified Party, but failure to notify the Seller of any
such claims shall not relieve the Seller from any liability which it may have to
any
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<PAGE>
Indemnified Party otherwise than on account of the indemnity agreement contained
in this Section 5(a). The Seller will be entitled to participate at its own
expense in the defense or, if it so elects promptly after receiving such notice
from any Indemnified Party, to assume the defense of any suit brought to enforce
any such liability with legal counsel chosen by the Seller and reasonably
acceptable to the Indemnified Parties. In the event the Seller elects to assume
the defense of any such suit and retain such legal counsel, any Indemnified
Party that is a defendant in the suit may retain additional legal counsel but
shall bear the legal fees and disbursements of such legal counsel unless (i) the
Seller and such Indemnified Party shall have mutually agreed to the retention of
such legal counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include one or both of the Seller and such Indemnified
Party, and representation of both such parties by the same legal counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the Seller shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the legal fees and
disbursements of more than one legal counsel (in addition to any local counsel
necessary to the conduct of defense in such proceeding or proceedings) for all
the Indemnified Parties and that all such legal fees and disbursements shall be
reimbursed by the Seller as they are incurred. The Seller shall not be liable to
indemnify any person for any settlement of any claim effected without the
Seller's consent, which consent shall not be unreasonably withheld, provided
that if any claim is settled with such consent or if there is a final judgment
against any Indemnified Party, the Seller agrees to indemnify the Indemnified
Parties from and against any losses, claims, damages, liabilities or expenses by
reason of such settlement or judgment. Notwithstanding the immediately preceding
sentence, if at any time an Indemnified Party shall have requested the Seller to
reimburse the Indemnified Party for fees and expenses of counsel retained in
accordance with the fourth sentence of this paragraph, the Seller agrees that it
shall be liable for any settlement of any claim effected without its consent if
(x) such settlement is entered into more than 60 days after the receipt by the
Seller of such request and (y) the Seller shall not have reimbursed such
Indemnified Party in accordance with such request prior to the date of such
settlement. The Seller shall not, without the prior written consent of any
Indemnified Party, which consent shall not be unreasonably withheld, effect any
settlement of any pending or threatened proceeding in respect of which such
Indemnified Party is or could reasonably have been a party and indemnity is or
could have been sought hereunder by such Indemnified Party unless such
settlement includes an unconditional release of such Indemnified Party from all
liability relating to the claims that are the subject matter of such proceeding.
(b) If the indemnification provided for in Section 5(a) above is
unavailable or insufficient to hold harmless an Indemnified Party in respect of
any losses, claims, damages, liabilities or expenses (or actions in respect
thereof) referred to therein, then the Seller shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Seller on the
one hand and such Indemnified Party on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Seller or by such
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<PAGE>
Indemnified Party and such party's relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
referred to above shall be deemed to include any legal fees and disbursements or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such claim, except where such Indemnified Party
is required to bear such expenses pursuant to this Section 5, which expenses the
Seller shall pay as and when incurred, at the request of such Indemnified Party,
to the extent that the Seller will be ultimately obligated to pay such expenses.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(c) The indemnity and contribution provided for in this Section 5 shall
remain operative and in full force and effect irrespective of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Purchaser or its designees, their respective officers and directors or any
person who controls the Purchaser or its Affiliates, or by or on behalf of the
Seller, its directors and officers or any person who controls the Seller, or
(iii) the acceptance of and payment for any of the Certificates.
6. Opinion of Counsel. The Seller hereby covenants to the Purchaser to
deliver or cause to be delivered to the Purchaser in connection with the
Securitization Transaction (a) opinions of counsel for the Seller (which may be
rendered by the Seller's internal counsel) as to various corporate matters in
form satisfactory to the Purchaser and (b) opinions of counsel for the Seller,
in forms acceptable to the Purchaser, its counsel, and each Rating Agency, as to
such matters as shall be required for the assignment of ratings to the
Certificates or such other interests in the Mortgage Loans offered for sale
(including, without limitation, a "true sale" opinion) (it being agreed that
such opinions or appropriate reliance letters shall expressly provide that each
Rating Agency, each placement agent, each underwriter, the Trustee and any
fiscal agent shall be entitled to rely on such opinions).
7. Cooperation. The Seller hereby agrees to furnish any and all
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans reasonably requested by the Purchaser in order for the Purchaser
to perform any of its obligations or satisfy any of the conditions on its part
to be performed or satisfied pursuant to this Agreement or the transactions
contemplated by the Pooling and Servicing Agreement. The Seller further agrees
that, at the request of the Purchaser, the Seller shall use all commercially
reasonable efforts to obtain from the Borrowers of the Mortgage Loans such
current financial statements and other information as the Purchaser, the
Depositor or any Rating Agency may reasonably request in connection with the
transactions contemplated by this Agreement or the Pooling and Servicing
Agreement.
8. Costs and Expenses. The Seller agrees to pay to the Purchaser its share
(based on the ratio of the aggregate principal amount of the Seller's Mortgage
Loans to the aggregate principal amount of all Mortgage Loans in the
Securitization Transaction) of the
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<PAGE>
transaction costs and expenses with respect to the Securitization Transaction in
accordance with the Loan Seller Agreement.
9. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Purchaser, will be mailed, delivered or
transmitted by facsimile and confirmed to it at the following:
Clay Lebhar John Mulligan
Investment Banking Commercial Mortgage
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza, 18th Floor One New York Plaza, 15th Floor
New York, New York 10292-2018 New York, New York 10292-2015
Telecopy No.: (212) 778-5099 Telecopy No.: (212) 778-1905
David Rodgers Fred Robustelli, Esq.
Investment Banking Law Department
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza, 18th Floor One New York Plaza, 30th Floor
New York, New York 10292-2018 New York, New York 10292
Telecopy No.: (212) 778-5099 Telecopy No.: (212) 214-7938
If sent to the Seller, will be mailed, delivered or transmitted by facsimile and
confirmed to it at the following:
E.J. Burke Michael Caffrey
National Realty Finance L.C. National Realty Finance L.C.
911 Main Street 911 Main Street
Suite 1400 Suite 1400
Kansas City, MO 64105 Kansas City, MO 64105
Telecopy No.: (816) 221-8848 Telecopy No.: (816) 221-8848
Daniel J. Flanigan, Esq.
Polsinelli, White, Vardeman & Shalton, P.C.
Plaza Steppes Building
700 West 47th Street, Suite 1000
Kansas City, Missouri 64112
Telecopy No.: (816) 753-1536
If sent to NRF, will be mailed, delivered or transmitted by facsimile and
confirmed to it at the following:
E.J. Burke Michael Caffrey
National Realty Funding L.C. National Realty Funding L.C.
911 Main Street 911 Main Street
Suite 1400 Suite 1400
Kansas City, MO 64105 Kansas City, MO 64105
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<PAGE>
Telecopy No.: (816) 221-8848 Telecopy No.: (816) 221-8848
Daniel J. Flanigan, Esq.
Polsinelli, White, Vardeman & Shalton, P.C.
Plaza Steppes Building
700 West 47th Street, Suite 1000
Kansas City, Missouri 64112
Telecopy No.: (816) 753-1536
If sent to the Rating Agencies, will be mailed, delivered or transmitted by
facsimile and confirmed to the respective Rating Agency at the following:
Joan Biro Nicholas Levidy
Standard & Poors Moody's Investors Service, Inc.
26 Broadway 99 Church Street
New York, New York 10003 New York, New York 10007
Telecopy No.: (212) 412-0539 Telecopy No.: (212) 553-1350
or such other address as may hereafter be furnished to or by the other party or
any Rating Agency by like notice.
10. Trustee as Beneficiary. The representations, warranties and agreements
made by the Seller and NRF in this Agreement are made for the benefit of the
Depositor, the Trustee and the Certificateholders and may be enforced by the
Depositor and the Trustee to the same extent that the Purchaser has rights
against the Seller and NRF under this Agreement in respect of the
representations, warranties and agreements made by the Seller and NRF herein,
and all such representations and warranties shall survive delivery of the
respective Mortgage Loan Documents to any subsequent purchaser and to the
Trustee and to the Servicer.
11. Successors and Assigns. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and assigns,
and no other person will have any right or obligation hereunder, other than as
otherwise expressly provided herein.
12. Governing Law. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
13. Miscellaneous.
(a) Subject to Section 13(b) hereof, neither this Agreement nor any term
hereof may be amended, modified, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such amendment,
modification, waiver, discharge or termination is sought.
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(b) In the event the Underwriting Agreement is terminated pursuant to a
failure of a condition precedent set forth therein, this Agreement shall
automatically terminate, and thereafter no party to this Agreement shall have
any further rights or obligations hereunder other than pursuant to any provision
which expressly provides that it survives the termination of this Agreement.
(c) Subsequent to any Securitization Transaction, this Agreement shall not
be changed in any manner which would have a material adverse effect on the
Certificateholders without the prior written consent of the Trustee. Prior to
the execution of any amendment to this Agreement, the Trustee shall be entitled
to receive and rely conclusively upon an opinion of counsel at the expense of
the party requesting such amendment stating that the execution of such amendment
is authorized or permitted by this Agreement. The Trustee may, but shall not be
obligated to, consent to any amendment which affects the Trustee's own rights,
duties or immunities under this Agreement.
(d) This Agreement may be executed in any number of counterparts, each of
which shall, for all purposes, be deemed to be an original and all of which
shall together constitute but one and the same instrument.
(e) If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then, to the
extent permitted by applicable law, 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.
(f) This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof, except the Securitization
Agreement.
(g) It is the express intent of the parties hereto that the conveyance
contemplated by this Agreement be, and be treated for all purposes as, a sale by
the Seller of all the Seller's right, title and interest in and to the Mortgage
Loans. It is, further, not the intention of the parties that such conveyance be
deemed a pledge of the Mortgage Loans by the Seller to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans are held to continue to be property of the
Seller then (i) this Agreement shall also be deemed to be a security agreement
under applicable law; (ii) the transfer of the Mortgage Loans provided for
herein shall be deemed to be a grant by the Seller to the Purchaser of a first
priority security interest in all of the Seller's right, title and interest in
and to the Mortgage Loans and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property; (iii) the possession by the Purchaser or any successor thereto
of the related Notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the Purchaser's security
interest pursuant to Section 9-305 of the New York Uniform Commercial Code and
the Uniform Commercial Code of any other applicable jurisdiction; and (iv)
notifications to Persons holding such
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<PAGE>
property, and acknowledgments, receipts or confirmations from Persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser or any successor thereto for the purpose of perfecting such
security interest under applicable law. Any assignment of the interest of the
Purchaser pursuant to any provision hereof shall also be deemed to be an
assignment of any security interest created hereby.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
NATIONAL REALTY FINANCE L.C.
By:_______________________________
Name:
Title:
NATIONAL REALTY FUNDING L.C.
By:_______________________________
Name:
Title:
PRUDENTIAL SECURITIES CREDIT CORP.
By:_______________________________
Name:
Title:
<PAGE>
Annex A
MORTGAGE LOAN CHARACTERISTICS SCHEDULE
[See Attached Pages]
A-1
<PAGE>
Annex B
CERTAIN DEFINED TERMS
"Additional Loan Characteristics Schedule": As defined in the Recitals.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled by" have meanings correlative to the foregoing.
"Agreement": As defined in the Preamble.
"Appraised Value": With respect to any Mortgaged Property, the appraised
value of such Mortgaged Property as determined by an appraisal thereof made not
more than one year prior to the origination date of the related Mortgage Loan
and reviewed by the Seller.
"Assignment of Leases, Rents and Profits": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Borrower, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered by the Borrower, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of mortgage without recourse,
notice of transfer or equivalent instrument, in recordable form, which is
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording.
"Borrower": With respect to each Mortgage Loan, any obligor on any related
Note.
"Breach": As defined in Section 3(b).
"CERCLA": Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. (Section) 9601 et seq.).
"Certificateholders": As defined in the Recitals.
"Certificates": As defined in the Recitals.
"Closing Date.": As defined in Section 1(b).
"Commission": Securities and Exchange Commission.
Annex B-1
<PAGE>
"Computational Materials": As defined in the no-action letter dated May 20,
1994, issued by the Division of Corporation Finance of the Commission to Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated and Kidder
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Associates.
"Custodian": As defined in Section 1(d).
"Cut-off Date": As defined in Section 1(a).
"Defective Mortgage Loan": As defined in Section 3(b).
"Defective Document Mortgage Loan": As defined in Section 3(b).
"Depositor": As defined in the Recitals.
"Due Date": With respect to any Mortgage Loan, the date on which scheduled
payments are due on such Mortgage Loan (without regard to grace periods), such
day being for all Mortgage Loans the first day of each month.
"Environmental Law": Any environmental law, ordinance, rule, regulation or
order of a federal, state or local governmental authority, including, without
limitation, CERCLA, the Hazardous Material Transportation Act, as amended (49
U.S.C. (Sections) 1801 et seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. (Sections) 6901 et seq.), the Federal Water Pollution Control
Act, as amended (33 U.S.C. (Sections) 1251 et seq.), the Clean Air Act, as
amended (42 U.S.C. (Sections) 7401 et seq.) and the regulations promulgated
pursuant thereto.
"Environmental Report": With respect to each Mortgaged Property, the
environmental audit report or reports required in connection with the
origination of the related Mortgage Loan.
"Fee Interest": As defined in Section 2(b)(xxxi).
"Ground Lease": As defined in Section 2(b)(xxxi).
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA, or any other Environmental Laws now existing, and
specifically including, without limitation, asbestos and asbestos-containing
materials, polychlorinated biphenyls, radon gas, petroleum and petroleum
products, urea formaldehyde and any substances classified as being "in
inventory", "usable work in process" or similar classification which would, if
classified as unusable, be included in the foregoing definition.
"Indemnified Parties": As defined in Section 5(a).
"Legal Summary": With respect to any Mortgage Loan, the "Legal Summary"
prepared by the related Seller in connection with the origination of such
Mortgage Loan,
Annex B-2
<PAGE>
substantially in the form of the sample Legal Summary previously submitted to
the Purchaser, with all blanks completed.
"Loan Agreement": With respect to any Mortgage Loan, the loan agreement, if
any, between the Seller and the Borrower, pursuant to which such Mortgage Loan
was made.
"Maturity Date": With respect to any Mortgage Loan, the maturity date as
set forth in the applicable Mortgage Loan Characteristics Schedule.
"Moody's": Moody's Investors Service, Inc., and its successors in interest.
"Mortgage File": As defined in Section 1(c).
"Mortgage Loan Characteristics Schedule": As defined in the Recitals.
"Mortgage Loan Control #": With respect to any Mortgage Loan, the "Control
Number" assigned to such Mortgage Loan for purposes of the Securitization
Transaction as set forth on the applicable Mortgage Loan Characteristics
Schedule.
"Mortgage Loan Documents": Any and all documents contained in the Mortgage
File and the Servicing File.
"Mortgage Loans": As defined in the Recitals.
"Mortgaged Property": The underlying property securing a Mortgage Loan,
consisting of a fee simple or leasehold estate in a parcel of land improved by a
commercial property, together with any personal property, fixtures, leases and
other property or rights pertaining thereto.
"Mortgage Rate": With respect to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan (in the absence of a default), as
set forth in the applicable Mortgage Loan Characteristics Schedule.
"Note": With respect to any Mortgage Loan as of any date of determination,
the note or other evidence of indebtedness and/or agreements evidencing the
indebtedness of the related Borrower under such Mortgage Loan, including any
amendments or modifications, or any renewal or substitution notes, as of such
date.
"NRF": As defined in the Preamble.
"Originator": With respect to a Mortgage Loan, the originator of such
Mortgage Loan, as identified in the Mortgage Loan Characteristics Schedule.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Placement Agents": As defined in the Recitals.
Annex B-3
<PAGE>
"Pooling and Servicing Agreement": As defined in the Recitals.
"Private Placement Memorandum": The Private Placement Memorandum relating
to the Privately Offered Certificates dated July 22, 1999.
"Prospectus": The prospectus dated October 29, 1998, as supplemented by a
prospectus supplement to be dated on or about July 22, 1999 (the "Prospectus
Supplement"), relating to the Publicly Offered Certificates.
"PSI": As defined in the Recitals.
"Purchaser": As defined in the Preamble.
"Qualified Mortgage": 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 Regulations 1.860G-2(f)(2) that treats a defective obligation as a
qualified mortgage), or any substantially similar successor provision.
"Rating Agency": Each of S&P or Moody's.
"Registration Statement": The registration statement No. 64765 filed by the
Purchaser on Form S-3 and declared effective on October 29, 1998.
"Requested Disclosure Information": As defined in Section 4.
"Reserve Accounts": As defined in Section 1(a).
"S&P": Standard & Poor's Ratings Services.
"Securities Act": As defined in the Recitals.
"Securitization Agreement": As defined in the Recitals.
"Securitization Transaction": As defined in the Recitals.
"Seller": As defined in the Preamble.
"Servicer": As defined in the Recitals.
"Special Servicer": As defined in the Recitals.
"Trustee": As defined in the Recitals.
"Trust Fund": As defined in the Recitals.
"Underwriters": As defined in the Recitals.
Annex B-4
<PAGE>
ANNEX C
Each of the following paragraphs sets forth exceptions to the
representations and warranties contained in the correspondingly-numbered clause
of Section 2(b) of the Mortgage Loan Purchase and Sale Agreement.
(x) Documents Valid.
(a) The Mortgaged Properties constituting the security for Loan Nos.
6347 (Captec IIIa) and 6348 (Captec IVa) consist of separate parcels leased to
restaurant owners or operators as tenants. One of the tenants of the related
Captec IIIa Borrower and four of the tenants of the related Captec IVa Borrower
have been granted purchase options under their respective leases which entitle
such tenants to acquire such parcels. In each case, the purchase price for such
parcel is equal to a specific amount stated in the applicable tenant's lease.
The related Borrower may obtain a release of the Mortgage from each such parcel
provided the entire amount payable by such tenant under its purchase option is
paid directly to the Seller and the related Borrower otherwise complies with all
the requirements of the promissory note evidencing such Mortgage Loan with
respect to the exercise of such purchase option.
(b) A small unimproved portion of the Mortgaged Property (the "DISPUTED
PARCEL") constituting the security for Loan No. 5090 (Pacific Breeze Apartments)
is the subject of a potential adverse possession claim. The Seller has
determined that releasing the Disputed Parcel will not have an adverse impact on
the value of the Mortgaged Property. The Seller has agreed to consider releasing
the Disputed Parcel from the lien of the related Mortgage provided certain
conditions set forth in such Mortgage are satisfied.
(c) With respect to Loan No. 7439 (Laguna Properties Building), an
agreement between the lender and the related Borrower requires an unimproved
portion of the Mortgaged Property (approximately 4.3 acres of the original 15.46
acre parcel) to be released provided certain conditions set forth in the
agreement are satisfied. The related Borrower is not required to pay any fee or
premium in consideration for the release but is required to pay all costs and
expenses incurred by the mortgagee in connection with the review and approval of
the requested release and is required to provide any easement or similar
agreements for the benefit of the mortgagee covering such matters as parking and
access, maintenance, utilities, water and drainage, and restrictions on any
construction or improvements to the released portion of the Mortgaged Property.
(xxiv) Insurance Related to Mortgaged Property. With respect to Loan No.
7430 (Mt. Orange Mobile Home Park), the related Borrower has not obtained an
insurance policy providing for business interruption or rental continuation
coverage for its operations on the Mortgaged Property, and the related Mortgage
Loan Documents do not specifically require the related Borrower to maintain
business interruption or rental continuation coverage. However, the related
Mortgage permits the mortgagee to require the related Borrower to obtain and
maintain any insurance which the mortgagee may reasonably require.
Annex C-1
<PAGE>
(xxix) Mortgage Loans Secured by Ground Lease but not Fee Interest. The
lessor of the property securing Loan No. 6423 (Palouse Empire Mall) is not
specifically required to enter into a new ground lease upon termination of such
Ground Lease as a result of the rejection of such Ground Lease in a bankruptcy
proceeding or otherwise.
(xxxvi) Recourse. With respect to Loan No. 7426 (Jason Commercial
Building), Loan No. 7430 (Mt. Orange Mobile Home Park), and Loan No. 7434
(Fulton East Shopping Center) (collectively the "KEYBANK SMALL LOANS"), the
related Mortgage Loan Documents provide for full recourse against the related
Borrower (and in certain cases against a principal of such Borrower).
(xxxviii) Inspection. None of the related Mortgaged Properties securing the
KeyBank Small Loans were inspected by the originator prior to the Closing Date,
but an appraisal had been prepared on each such Mortgaged Property prior to the
origination of the related Mortgage Loan.
(xxxix) Subordinate Debt. As identified on Annex A-1 to the Agreement, the
KeyBank Small Loans are secured by Mortgages that do not provide for
acceleration of the payment of the unpaid balance of the Mortgage Loan if the
related Borrower further encumbers the related Mortgaged Property.
(xl) Common Ownership. Annex A-1 identifies several Mortgage Loans secured
by Mortgaged Properties under common ownership. In addition, Annex C to the
Prospectus Supplement identifies Mortgage Loans to affiliated Borrowers and
identifies in which instances the Mortgage Loans to such Borrowers are
cross-collateralized or cross-defaulted with other Mortgage Loans to the same or
related Borrowers.
(xli) Operating or Financial Statement. With respect to the KeyBank Small
Loans, the related Mortgage Loan Documents do not require unsolicited annual
operating statements with respect to the related Mortgaged Property but require
the related Borrower, upon request of the mortgagee, to provide such operating
statements on a quarterly basis.
(xliv) ARD Loans. Loan No. 6588 (Walgreens) provides that after the
Anticipated Prepayment Date, interest will accrue at a rate equal to the greater
of (i) the interest rate in effect prior to the Anticipated Repayment Date plus
two percentage points per annum, or (ii) the treasury rate plus two percentage
points per annum.
(xlvi) Loan Origination; Loan Underwriting. With respect to each KeyBank
Small Loan, the Mortgage Loan substantially complied with all of the terms,
conditions, and requirements of the Seller's underwriting standards at the time
of the Seller's purchase of such Mortgage Loan, subject to the following
exceptions approved by the Seller upon its purchase of the Mortgage Loan:
(a) All third party reports made on the related Mortgaged Property
were abbreviated and contained less information than the third party
reports on which the Seller relies for Mortgage Loans it originates;
Annex C-2
<PAGE>
(b) Other than an appraisal of the related Mortgaged Property, no site
inspection or independent market study was conducted prior to origination
or purchase;
(c) Review and analysis of environmental conditions of the related
Mortgaged Property was based on transaction screen assessments, rather than
Phase I ESAs, performed on the Mortgaged Property; and
(d) All loan write-ups for the Mortgage Loan were abbreviated and
contained less information than the loan write-ups on which the Seller
relies for Mortgage Loans it originates.
Annex C-3
<PAGE>
EXHIBIT H
INTENTIONALLY DELETED
<PAGE>
EXHIBIT I
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
DIST DATE: 17-Aug-1999 BOND PAYMENT SUMMARY PAGE # 1-1
RECORD DATE: 30-Jul-1999
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Original Certificate Beginning Certificate Principal Interest
Class Cusip# Balance Balance Distribution Distribution
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Prepayment Penalties Collateral Support Total Distribution Ending Certificate
(PP/YMC) Deficit Balance
Allocation/(Reimb)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Class Cusip# Original Notional Beginning Notional Interest Distribution Prepayment Penalties
Amount Amount (PP/YMC)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------
Total Distribution Ending Notional
Balance
- ------------------------------------------------------------
<S> <C>
- ------------------------------------------------------------
- ------------------------------------------------------------
</TABLE>
If there are any questions or comments, please contact the Administrator listed
below.
- --------------------------------------------------------------------------------
Nina Velastegui
The Chase Manhattan Bank
450 West 33rd Street, 15 Floor
New York, NY 10001
212-946-7600
- --------------------------------------------------------------------------------
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
DIST DATE: 17-Aug-1999 BOND PAYMENT SUMMARY PAGE # 1-2
RECORD DATE: 30-Jul-1999
<TABLE>
<CAPTION>
Factor Information Per $1,000
- -----------------------------------------------------------------------------------------------------------------
Class Cusip# Principal Distribution Interest Distribution End Prin Balance Pass Through Rate
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Factor Information Per $1,000 Pass Through Rates
- -----------------------------------------------------------------------------------------------------------------
Class Cusip# Interest Distribution Ending Notional Current Pass Through Next Pass Through
Balance Rate Rate
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
DIST DATE: 17-Aug-1999 BOND PAYMENT SUMMARY PAGE # 2-1
RECORD DATE: 30-Jul-1999
Sec. 4.02(a)(iii) P&I Advances
Sec. 4.02(a)(iv) Servicing Compensation
Sec. 4.02(a)(iv) Trustee Compensation
Sec. 4.02(a)(iv) Special Servicing Compensation
Sec. 4.02(a)(v) Aggregate Stated Principal Balance
Sec. 4.02(a)(vi) Aggregate Number of Mortgage Loans
Aggregate Mortgage Principal Balance
Weighted Average Remaining Term to Maturity
Weighted Average Mortgage Rate
Sec. 4.02(a)(vii) Loans Delinquent
- --------------------------------------------------------------------------------
Period Number Aggregated Principal
Balance
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Sec. 4.02(a)(viii) Appraisal Value of REO Property
Sec. 4.02(a)(x) Accrued Certificate Interest
- --------------------------------------------------------------------------------
Class Accrued Cert Interest Cert Deferred Interest
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
DIST DATE: 17-Aug-1999 BOND PAYMENT SUMMARY PAGE # 2-2
RECORD DATE: 30-Jul-1999
Sec. 4.02(a)(xvi) Appraisal Reduction Amounts
- --------------------------------------------------------------------------------
Loan Number Appraisal Reductions Appraisal Reductions
Effected Amounts
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Sec. 4.02(a)(xviii) Class Unpaid Interest Shortfall
- --------------------------------------------------------------------------------
Class Current Unpaid Cumulative Unpaid
Interest Shortfall Interest Shortfall
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
DIST DATE: 17-Aug-1999 DISTRIBUTION MORTGAGE OF LOAN CHARACTERISTICS PAGE # 3-1
RECORD DATE: 30-Jul-1999
</TABLE>
<TABLE>
<CAPTION>
STRATIFICATION BY ENDING SCHEDULED BALANCE AMOUNT
- -----------------------------------------------------------------------------------------------------------------------------------
Weighted Average
# of Principal Balance % of Agg. ------------------------------------
Ending Scheduled Balance Amount Loans ($) 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 $20,000,000 0 0.00 0.00 0 0.000000 0.000000
- -----------------------------------------------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0 0.000000 0.000000
- -----------------------------------------------------------------------------------------------------------------------------------
AVERAGE PRINCIPAL BALANCE: 0.00
<CAPTION>
STRATIFICATION BY CURRENT NOTE RATE
- -----------------------------------------------------------------------------------------------------------------------------------
Weighted Average
# of Principal Balance % of Agg. ------------------------------------
Current Note Rate Loans ($) 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
9.76000% 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>
- --------------------------------------------------------------------------------
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
DIST DATE: 17-Aug-1999 DISTRIBUTION MORTGAGE OF LOAN CHARACTERISTICS PAGE # 3-2
RECORD DATE: 30-Jul-1999
</TABLE>
<TABLE>
<CAPTION>
STRATIFICATION BY REMAINING STATED TERM (BALLOON LOANS ONLY)
- -----------------------------------------------------------------------------------------------------------------------------------
Weighted Average
# of Principal Balance % of Agg. ------------------------------------
Remaining Stated Term Loans ($) Prin. Bal. WAM Note Rate(%) DSCR
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
70 months or Less 0 0.00 0.00 0 0.000000 0.000000
71 months to 90 months 0 0.00 0.00 0 0.000000 0.000000
91 months to 110 months 0 0.00 0.00 0 0.000000 0.000000
111 months to 115 months 0 0.00 0.00 0 0.000000 0.000000
116 months to 120 months 0 0.00 0.00 0 0.000000 0.000000
121 months to 200 months 0 0.00 0.00 0 0.000000 0.000000
201 months to 274 months 0 0.00 0.00 0 0.000000 0.000000
- -----------------------------------------------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0 0.000000 0.000000
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
STRATIFICATION BY REMAINING STATED TERM (FULLY AMORTIZING LOANS ONLY)
- -----------------------------------------------------------------------------------------------------------------------------------
Weighted Average
# of Principal Balance % of Agg. ------------------------------------
Remaining Stated Term Loans ($) 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>
- --------------------------------------------------------------------------------
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
DIST DATE: 17-Aug-1999 DISTRIBUTION MORTGAGE OF LOAN CHARACTERISTICS PAGE # 3-3
RECORD DATE: 30-Jul-1999
</TABLE>
<TABLE>
<CAPTION>
STRATIFICATION BY DEBT SERVICE COVERAGE RATIO
- -----------------------------------------------------------------------------------------------------------------------------------
Weighted Average
# of Principal Balance % of Agg. ------------------------------------
Debt Service Coverage Ratio Loans ($) Prin. Bal. WAM Note Rate(%) DSCR
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1.000000 or Less 0 0.00 0.00 0 0.000000 0.000000
1.010000 to 1.200000 0 0.00 0.00 0 0.000000 0.000000
1.210000 to 1.240000 0 0.00 0.00 0 0.000000 0.000000
1.250000 to 1.300000 0 0.00 0.00 0 0.000000 0.000000
1.310000 to 1.400000 0 0.00 0.00 0 0.000000 0.000000
1.410000 to 1.500000 0 0.00 0.00 0 0.000000 0.000000
1.510000 to 1.600000 0 0.00 0.00 0 0.000000 0.000000
1.610000 to 1.700000 0 0.00 0.00 0 0.000000 0.000000
1.710000 to 1.800000 0 0.00 0.00 0 0.000000 0.000000
1.810000 to 1.900000 0 0.00 0.00 0 0.000000 0.000000
1.910000 to 2.000000 0 0.00 0.00 0 0.000000 0.000000
2.010000 to 2.300000 0 0.00 0.00 0 0.000000 0.000000
2.310000 to 2.400000 0 0.00 0.00 0 0.000000 0.000000
- -----------------------------------------------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0 0.000000 0.000000
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
STRATIFICATION BY SEASONING
- -----------------------------------------------------------------------------------------------------------------------------------
Weighted Average
# of Principal Balance % of Agg. ------------------------------------
Seasoning Loans ($) 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>
- --------------------------------------------------------------------------------
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
DIST DATE: 17-Aug-1999 DISTRIBUTION MORTGAGE OF LOAN CHARACTERISTICS PAGE # 3-4
RECORD DATE: 30-Jul-1999
</TABLE>
<TABLE>
<CAPTION>
STRATIFICATION BY STATE CODE
- -----------------------------------------------------------------------------------------------------------------------------------
Weighted Average
# of Principal Balance % of Agg. ------------------------------------
State Code Loans ($) Prin. Bal. WAM Note Rate(%) DSCR
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
ARIZONA 0 0.00 0.00 0 0.000000 0.000000
CALIFORNIA 0 0.00 0.00 0 0.000000 0.000000
COLORADO 0 0.00 0.00 0 0.000000 0.000000
CONNECTICUT 0 0.00 0.00 0 0.000000 0.000000
FLORIDA 0 0.00 0.00 0 0.000000 0.000000
GEORGIA 0 0.00 0.00 0 0.000000 0.000000
ILLINOIS 0 0.00 0.00 0 0.000000 0.000000
INDIANA 0 0.00 0.00 0 0.000000 0.000000
MASSACHUSETTS 0 0.00 0.00 0 0.000000 0.000000
MARYLAND 0 0.00 0.00 0 0.000000 0.000000
MICHIGAN 0 0.00 0.00 0 0.000000 0.000000
MISSOURI 0 0.00 0.00 0 0.000000 0.000000
NEW JERSEY 0 0.00 0.00 0 0.000000 0.000000
NEW YORK 0 0.00 0.00 0 0.000000 0.000000
OHIO 0 0.00 0.00 0 0.000000 0.000000
OREGON 0 0.00 0.00 0 0.000000 0.000000
PENNSYLVANIA 0 0.00 0.00 0 0.000000 0.000000
SOUTH CAROLINA 0 0.00 0.00 0 0.000000 0.000000
TENNESSEE 0 0.00 0.00 0 0.000000 0.000000
TEXAS 0 0.00 0.00 0 0.000000 0.000000
VIRGINIA 0 0.00 0.00 0 0.000000 0.000000
- -----------------------------------------------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0 0.000000 0.000000
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
STRATIFICATION BY PROPERTY TYPE
- -----------------------------------------------------------------------------------------------------------------------------------
Weighted Average
# of Principal Balance % of Agg. ------------------------------------
Property Type Loans ($) 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.
- --------------------------------------------------------------------------------
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
DIST DATE: 17-Aug-1999 DELINQUENCY DETAIL PAGE # 4-1
RECORD DATE: 30-Jul-1999
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Offering # of Paid Current Current Outstanding Advance
Loan Memo Cross Months Through Loan P&I P&I Description
Number Reference Delinquent Date Balance Advances Advances** (I)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
NO DELINQUENT LOANS REPORTED THIS PERIOD
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Outstanding Outstanding
Loan Special Current Property Property Property
Status Servicer Foreclosure Protection Protection Bankruptcy
(II) Start Date Date Advances Advances Date REO Date
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
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
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
DIST DATE: 17-Aug-1999 HISTORICAL INFORMATION PAGE # 5-1
RECORD DATE: 30-Jul-1999
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Delinquencies
Distrib. --------------------------------------------------------------------------------------------------------------------------
Date 1 Month 2 Months 3 Months(+) Foreclosures REO Modifications
--------------------------------------------------------------------------------------------------------------------------
# Balance # Balance # Balance # Balance # Balance # Balance
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
8/17/99 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0 $0.00
*** NOTE: FORECLOSURES AND REO TOTALS ARE EXCLUDED FROM THE DELINQUENT AGING CATEGORIES
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------
Prepayments Rates & Maturities
- --------------------------------------------------------------------------------
Curtailment Payoffs Next Weighted Avg.
- --------------------------------------------------------------------
# Balance # Balance Coupon Remit WAM
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
0 $0.00 0 $0.00 0.000000 0.000000 0
- --------------------------------------------------------------------------------
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
DIST DATE: 17-Aug-1999 LOAN STATUS DETAIL PAGE # 6-1
RECORD DATE: 30-Jul-1999
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Loan Offering Property Standard State Principal & Interest Gross Maturity Neg
Number Memo Type Metropolitan Payment Coupon Date Amt
Cross (I) Statistical Flag
Reference Area
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EXAMPLE N/A N/A N/A N/A $0.00 .00000 N/A N/A
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Beginning Ending Scheduled Paid Appraisal Appraisal Has Loan Loan
Scheduled Balance Balance Through Reduction Reduction Ever Been Status
Date Date Amount Specially Code
Serviced? (II)
(Y/N)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
$0.00 $0.00 N/A N/A $0.00 N N/A
- -----------------------------------------------------------------------------------------------------------------------------------
(I) PROPERTY TYPE CODE: 6. Non-Exempt 12. Hotel (II) LOAN STATUS CODE: 6. Discounted Payoff
1. Single Family 7. Church 13. Industrial 1. Specially Serviced 7. Foreclosure Sale
2. Multi-Family 8. School, HCF, WF 14. Industrial/Flex 2. Foreclosure 8. Bankruptcy Sale
3. Condo, Co-op or TH 9. Retail 15. Multiple Properties 3. Bankruptcy 9. REO Disposal
4. Mobile Home 10. Office 16. MiniStorage 4. REO 10. Modification/Workout
5. Plan Unit Development 11. Retail/Office 32. Warehouse 5. Prepayment in Full 11. Rehabilitation
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
DIST DATE: 17-Aug-1999 MODIFIED LOAN DETAIL PAGE # 7-1
RECORD DATE: 30-Jul-1999
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Loan Offering Modification Modification Description
Number Memorandum Date
Cross
Reference
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
NO MODIFIED LOANS REPORTED THIS PERIOD
- --------------------------------------------------------------------------------
</TABLE>
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
DIST DATE: 17-Aug-1999 ADVANCE SUMMARY 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 Expenses Total Interest Payable
Interest Shortfall Interest
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -------------------------------------------------------------------------------
Certificate Interest Ending Unpaid
Distributable Interest
- -------------------------------------------------------------------------------
<S> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
DIST DATE: 17-Aug-1999 PREPAYMENT DETAIL PAGE # 9-1
RECORD DATE: 30-Jul-1999
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Offering Net Net Mortgage
Loan Memo Cross Curtailment Payoff Liquidation Insurance Repurchase
Number Reference Amount Amount Proceeds Proceeds Price
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
NO PRINCIPAL PREPAYMENT REPORTED THIS PERIOD
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
DIST DATE: 17-Aug-1999 SPECIALLY SERVICED LOANS PAGE # 10-1
RECORD DATE: 30-Jul-1999
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
SS Current Balance Net
Distribution Loan Transfer Spec Serv Scheduled Transfer Prop Interest Operating
Date Number OMCR Date Code (II) Balance Date Type (I) St Rate Income
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
NO SPECIALLY SERVICED LOANS REPORTED THIS PERIOD
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Debt Service
Distribution NOI Coverage Maturity Rem Inspection Appraisal Appraisal
Date Date Ratio Date Term Date Date Value
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
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
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
STATEMENT TO CERTIFICATEHOLDERS
- --------------------------------------------------------------------------------
DIST DATE: 17-Aug-1999 REALIZED LOSS DETAIL PAGE # 11-1
RECORD DATE: 30-Jul-1999
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Offering Gross Net
Memo Beginning Proceeds % Net Proceeds %
Loan Cross Appraisal Appraisal Scheduled Gross Scheduled Liquidation Liquidation Scheduled Realized
Number Reference Date Value Balance Proceeds Principal Expenses Proceeds Balance Loss
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
NO REALIZED LOSSES REPORTED THIS PERIOD
- -----------------------------------------------------------------------------------------------------------------------------------
[CHASE LOGO] NATIONAL REALTY FUNDING L.C.
MASTER SERVICER
(Copyright) 1998, CHASE MANHATTAN BANK
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT J
NATIONAL REALTY FUNDING L.C.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES PSSFC 1999-C2
COMPARATIVE FINANCIAL STATUS REPORT
AS OF _____________________
<TABLE>
<CAPTION>
LAST
PROPERTY SCHEDULED LOAN PAID THRU ANNUAL DEBT
PROSPECTUS ID CITY STATE INSPECT DATE BALANCE DATE SERVICE
- ------------- ----------------- ------------- ------------ -------------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
TOTAL:
<CAPTION>
ORIGINAL UNDERWRITING
INFORMATION
----------------------
BASIS YEAR
- ----------
FINANCIAL
INFO AS OF (1)
DATE % OCC TOTAL REVENUE $ NOI DSCR
- ----------- ---------- -------------- --------- ----------
<C> <C> <C> <C> <C>
<CAPTION>
2ND PRECEDING ANNUAL OPERATING PRECEDING ANNUAL OPERATING
INFORMATION INFORMATION
------------------------------ --------------------------
AS OF _________ NORMALIZED AS OF ___________ NORMALIZED
- --------------- ---------- ----------------- ----------
FINANCIAL FINANCIAL
INFO AS OF (1) INFO AS OF (1)
DATE % OCC TOTAL REVENUE $ NOI DSCR DATE % OCC TOTAL REVENUE $ NOI DSCR
- ---------- ----- ------------- ------ ---- ---------- ----- ------------- ----- -----
<C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TOTAL:
<CAPTION>
TRAILING FINANCIAL OR YTD
INFORMATION NET CHANGE (2)
MONTH REPORTED ACTUAL PRECEDING & BASIS
-------------------------- ------------------
FINANCIAL
INFO AS OF % TOTAL (1)
DATE % OCC TOTAL REVENUE $ NOI DSCR % % OCC REVENUE DSCR
- ---------- ------- ------------- ------ ------ ------ -------- ------
<C> <C> <C> <C> <C> <C> <C> <C>
TOTAL:
</TABLE>
<TABLE>
<CAPTION>
RECEIVED REQUIRED
------------------------------ ----------------------------
FINANCIAL INFORMATION: LOANS BALANCE LOANS BALANCE
- ---------------------- -------------- ------------ ------------- -------------
# % # % # % # $
----- ----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Current Full Year:
Current Full Year received with DSC (less than) 1:
Prior Full Year:
Prior Full Year received with DSC (less than) 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>
EXHIBIT K
NATIONAL REALTY FUNDING L.C.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, PSSFC 1999-C2
DELINQUENT LOAN STATUS REPORT
AS OF ____________________
<TABLE>
<CAPTION>
PAID
PROSPECTUS PROPERTY SQ FT OR THRU
ID SHORT NAME TYPE CITY STATE UNITS DATE
- ---------- ---------- -------- ------- ------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
90+ DAYS DELINQUENT
60+ DAYS DELINQUENT
30+ DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
<CAPTION>
(a) (b) (c) (d) (e)=a+b+c+d
- ----------- ----------- ----------- ----------- ------------
OTHER
SCHEDULED TOTAL P&I TOTAL ADVANCES CURRENT
LOAN ADVANCES TO EXPENSES TO (TAX & TOTAL CURRENT INTEREST MATURITY
BALANCE DATE DATE ESCROW) EXPOSURE MONTHLY P&I RATE DATE
- --------- ------------ ------------ ----------- ----------- ------------ --------- ---------
<C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
(d1) (f)=(d)/(d1)
----------- ---------------
VALUE USING APPRAISAL BPO
LTM NOI ***CAP RATE NOI & CAP VALUATION OR INTERNAL
DATE LTM NOI LTM DSCR ASSIGNED RATE DATE VALUE**
- ------- ---------- -------- ----------- ------------- ---------- ------------
<C> <C> <C> <C> <C> <C> <C>
<CAPTION>
(g)=(.92*f)-e (h)=(g/e)
- -------------- ---------
LOSS USING TOTAL APPRAISAL
90% APPR. ESTIMATED REDUCTION TRANSFER RESOLUTION FCL START
OR BPO (f) RECOVERY % REALIZED DATE DATE DATE
----------- ----------- --------------- -------- ---------- ---------
<C> <C> <C> <C> <C> <C>
<CAPTION>
EXPECTED
FCL SALE WORKOUT
DATE STRATEGY COMMENTS
- ---------- -------- -----------------------------
<C> <C> <C>
- -----------
NOTES:
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-Foreclosure, MOD-Modification,
DPO-Discounted 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's Opinion, Int.-Internal Value
***How to determine the cap rate is agreed upon by Underwriter and servicers
- to be provided by a third party.
</TABLE>
<PAGE>
EXHIBIT L
NATIONAL REALTY FUNDING L.C.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, PSSFC 1999-C2
HISTORICAL LOAN MODIFICATION REPORT
AS OF ___________________
<TABLE>
<CAPTION>
MOD/ BALANCE WHEN BALANCE AT THE
EXTENSION EFFECT SENT TO SPECIAL EFFECTIVE DATE OF
PROSPECTUS ID CITY STATE FLAG DATE SERVICER REHABILITATION
- ------------- ---------- --------- --------- -------- --------------- -----------------
<S> <C> <C> <C> <C> <C> <C>
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:
<CAPTION>
# MONTHS FOR
OLD RATE RATE CHANGE NEW RATE OLD P&I NEW P&I
- -------- ------------ -------- ------- -------
<CAPTION>
(2) EST.
FUTURE
INTEREST
TOTAL LOSS TO
MONTHS FOR (1) REALIZED TRUST $
CHANGE OF LOSS TO (RATE
MOD TRUST $ REDUCTION) COMMENT
- ----------- ------------- ----------- --------------
- ---------
*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 modification.
</TABLE>
<PAGE>
EXHIBIT M
NATIONAL REALTY FUNDING L.C.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, PSSFC 1999-C2
HISTORICAL LOSS ESTIMATE REPORT (REO-SOLD OR DISCOUNTED PAYOFF)
AS OF ________________
<TABLE>
<CAPTION>
LATEST
APPRAISAL OR
PROSPECTUS PROPERTY % RECEIVED BROKERS
ID SHORT NAME TYPE CITY STATE FROM SALE OPINION
- ----------- ------------ --------- ------- --------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
Total all Loans:
Current Month Only:
NET AMT SERVICING
EFFECT DATE RECEIVED SCHEDULED TOTAL P&I TOTAL FEES
OF SALE SALES PRICE FROM SALE BALANCE ADVANCED EXPENSES EXPENSE
- ----------- ----------- --------- --------- --------- -------- ---------
ACTUAL TOTAL LOSS LOSS % OF
NET LOSSES DATE LOSS MINOR ADJ TO MINOR ADJ WITH SCHEDULED
PROCEEDS PASSED THRU PASSED THRU TRUST PASSED THRU ADJUSTMENT BALANCE
- --------- ----------- ----------- ------------ ----------- ----------- ---------
</TABLE>
<PAGE>
Exhibit N
NATIONAL REALTY FUNDING L.C.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, PSSFC 1999-C2
REO STATUS REPORT
AS OF ______________
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d)
- -----------------------------------------------------------------------------------------------------------------------------------
Other
Paid Scheduled Total P & I Total Advances
Prospectus Property Sq Ft or Thru Loan Advances to Expenses to (Tax &
ID Short Name Type City State Unit Date Balance Date Date Escrow)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (k) (J) (f)=(k)/(j) (g)
- -----------------------------------------------------------------------------------------------------------------------------------
Value using Appraisal BPO
Total Current Maturity LTM NOI ***Cap Rate Valuation NOI & Cap or Internal
Exposure Monthly P&I Date Date LTM NOI/DSC Assigned Value Rate Value**
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
(h)=(.92*g) (j)=(g/e)
- -----------------------------------------------------------------------------------------------------------------------------------
Loss using Total Appraisal REO Pending
92% Appr. Estimated Reduction Transfer Acquisition Resolution
Or BPO (f) Recovery % Realized Date Date Date Comments
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C>
(1) Use the following codes: App.-Appraisal; BPO-Brokers Opinion;Int-Internal Value
***How to determine the cap rate is agreed upon by Underwriter and servicers - to be provided by a third party.
</TABLE>
<PAGE>
Exhibit O
NATIONAL REALTY FUNDING L.C.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, PSSFC 1999-C2
SERVICER WATCH LIST
AS OF _____________
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Prospectus Scheduled Paid Thru Maturity
ID Short Name Property Type City State Loan Balance Date Date *LTM DSCR Comment/Reason on Watch List
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Total: $0.00
</TABLE>
*LTM - Last 12 months either trailing or last annual
<PAGE>
Exhibit P
NATIONAL REALTY FUNDING L.C.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, PSSFC 1999-C2
FORM OF OPERATING STATEMENT ANALYSIS REPORT
AS OF _______________
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW:
Prospectus ID
Scheduled Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations Underwriting 1997 1998 1999 Trading
Occupancy Rate*
Average Rental Rate
</TABLE>
<TABLE>
*Occupancy rates are year end or the ending date of the financial statement for the period.
<CAPTION>
INCOME: No. of Months
Number of Months Prior Year Current Yr.
Period Ended Underwriting 1997 1998 1999 2000 Trailing** 1999-Base 1999-1998
Statement Classification Base Line Normalized Normalized Normalized as of __/__/00 Variance Variance
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Through/Escalations
Other Income
GROSS INCOME $0.00 $0.00 $0.00 $0.00 $0.00 0.00% 0.00%
ormalized - Full year Financial Statements that have been reviewed by the underwriter or Servicer.
**Servicer will not be expected to "Normalize" these YTD numbers.
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
General & Administration
Repairs & Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES $0.00 $0.00 $0.00 $0.00 $0.00 0.00% 0.00%
OPERATING EXPENSE RATIO:
NET OPERATING INCOME $0.00 $0.00 $0.00 $0.00 $0.00
Leasing Commissions
Tenant Improvements
Replacement Reserve
TOTAL CAPITAL ITEMS $0.00 $0.00 $0.00 $0.00 $0.00 0.00% 0.00%
N.O.I. AFTER CAPITAL ITEMS $0.00 $0.00 $0.00 $0.00 $0.00
DEBT SERVICE (PER SERVICER) $0.00 $0.00 $0.00 $0.00 $0.00
CASH FLOW AFTER DEBT SERVICE $0.00 $0.00 $0.00 $0.00 $0.00
(1) DSCR: (NOI/DEBT SERVICE)
DSCR: (AFTER RESERVES/CAP EXP.)
SOURCE OF FINANCIAL DATA:
(i.e. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS:
The years shown above will roll always showing a three year history. 1999 is the
current year financials; 1998 is the prior year financials.
This report may vary depending on the property type and because of the way
information may vary in each borrowers statement.
Rental Income needs to be broken down, differently whenever possible for each
property type as follows: Retail: 1) Base Rent, 2) Percentage rents on cashflow;
Hotel: 1) Room Revenue, 2) Food/Beverage; Nursing Home: 1) Private, 2) Medicaid,
3) Medicare
INCOME: COMMENT
EXPENSES: COMMENT
CAPITAL ITEMS: COMMENT
(1) Used in the Comparative Financial Status Report
<PAGE>
Exhibit Q
NATIONAL REALTY FUNDING L.C.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, PSSFC 1999-C2
FORM OF NOI ADJUSTMENT WORKSHEET FOR "19__"
as of _____________
<TABLE>
<S> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW:
Prospectus ID
Scheduled Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations Borrower Adjustment Normalized
Occupancy Rate*
Average Rental Rate
*Occupancy rates are year end or the ending date of the financial statement for the period.
</TABLE>
<TABLE>
<CAPTION>
INCOME:
Number of Months Annualized "Year"
Period Ended Borrower Adjustment Normalized
Statement Classification Actual
<S> <C> <C> <C> <C> <C>
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Through/Escalations
Other Income
GROSS INCOME $0.00 $0.00 $0.00
Normalized - Full year financial statements that have been reviewed by the Servicer.
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
General & Administration
Repairs & Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES $0.00 $0.00 $0.00
OPERATING EXPENSE RATIO:
NET OPERATING INCOME $0.00 $0.00 $0.00
Leasing Commissions
Tenant Improvements
Replacement Reserve
TOTAL CAPITAL ITEMS $0.00 $0.00 $0.00
NOI AFTER CAPITAL ITEMS $0.00 $0.00 $0.00
DEBT SERVICE (PER SERVICER) $0.00 $0.00 $0.00
CASH FLOW AFTER DEBT SERVICE $0.00 $0.00 $0.00
(1) DSCR: (NOI/DEBT SERVICE)
DSCR: (AFTER RESERVES/CAP EXP.)
SOURCE OF FINANCIAL DATA:
(i.e. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS:
- --------------------------------------------------------------------------------
This report should be completed by the Servicer for any "Normalization" of the
Borrower's numbers.
The "Normalized" column is used in the Operating Statement Analysis Report.
This report may vary depending of the property type and because of the way
information may vary in each borrower's statement.
INCOME: COMMENT
EXPENSES: COMMENT
CAPITAL ITEMS: COMMENT
(1) Used in the Comparative Financial Status Report
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
INTEREST
CONTROL ACCRUAL
NUMBER PROPERTY NAME METHOD
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1 CROWN HOTELS ACTUAL / 360
1.10 Atlanta Holiday Inn- Downtown Actual / 360
1.20 Holiday Inn Actual / 360
1.30 Holiday Inn Holidome Actual / 360
1.40 Asheville Comfort Suites Actual / 360
1.50 Holiday Inn Executive Park Actual / 360
1.60 Wyndham Garden Actual / 360
1.70 Beaver Falls Holiday Inn Actual / 360
1.80 Courtyard by Marriott Actual / 360
1.90 East Comfort Inn Actual / 360
1.91 Wyndham Garden Actual / 360
1.92 Johnstown Holiday Inn Actual / 360
1.93 Holiday Inn Express Actual / 360
1.94 Pottstown Comfort Inn Actual / 360
1.95 Holiday Inn Holidome Actual / 360
1.96 Rock Hill Holiday Inn Actual / 360
2 Bridgepointe Shopping Center Actual / 360
3 122 Fifth Avenue Actual / 360
4 Dudley Farms Plaza 30 / 360
5 Emery/Busch Industrial Building Actual / 360
6 VARIOUS ACTUAL / 360
6.10 1376 Bordeaux Actual / 360
6.20 1380 Bordeaux Actual / 360
7 VARIOUS 30 / 360
7.10 Festival at Pasadena 30 / 360
7.20 Festival at Pasadena Pad Building 30 / 360
8 Palouse Empire Mall Actual / 360
9 Ventana Vista Apartments Actual / 360
10 Park Plaza Shopping Center 30 / 360
11 Shadowridge Heights Apartments 30 / 360
12 Bayside Office Center Actual / 360
13 Boulder Run Shopping Center Actual / 360
14 West 49th Street Actual / 360
15 Brenden Theatres Actual / 360
16 The Pavillions at Mesa Actual / 360
17 Desert Star Apartments Actual / 360
18 VARIOUS ACTUAL / 360
18.10 Pine Lake Apartments Actual / 360
18.20 Terrace Trace Apartments Actual / 360
18.30 Jupiter Cove Apartments I Actual / 360
18.40 Rivers End I Apartments Actual / 360
18.50 Cypress Apartments Actual / 360
18.60 Jupiter Cove III Actual / 360
19 North Valley Medical Plaza Actual / 360
20 4250 Veterans Highway 30 / 360
21 Boardwalk @ Anderson Springs Actual / 360
22 VARIOUS ACTUAL / 360
22.10 Princeton Court Apartments Actual / 360
22.20 Elmtree Park Apartments Actual / 360
22.30 Meadowood Apartments Actual / 360
22.40 Rosewood Commons Apartments Actual / 360
22.50 Acadia Court Apartments Actual / 360
23 Pembrooke Square Medical Center Actual / 360
24 Laguna Properties Building Actual / 360
25 Southwind Mobile Home Estates Actual / 360
26 K-Mart Rogers Actual / 360
1
<PAGE>
- -------------------------------------------------------------------------------------------------------------
INTEREST
CONTROL ACCRUAL
NUMBER PROPERTY NAME METHOD
- -------------------------------------------------------------------------------------------------------------
27 Park Fair Mall 30 / 360
28 VARIOUS ACTUAL / 360
28.10 Pine Terrace I & II Apartments Actual / 360
28.20 Sanford Court Apartments Actual / 360
28.30 Applewood I & II Apartments Actual / 360
29 Buckhead Exchange Actual / 360
30 Pascack Plaza Actual / 360
31 Days Inn Hotel 30 / 360
32 BeautiControl Office 30 / 360
33 REXBURG STUDENT HOUSING 30 / 360
33.10 Autumn Winds Apartments 30 / 360
33.20 Somerset Apartments 30 / 360
33.30 Brookside Village Apartments 30 / 360
34 Hampton Inn - Sea Tac Actual / 360
35 Devir Street Apartments Actual / 360
36 Alameda Technology Center Actual / 360
37 Clocktower Apartments Phase I Actual / 360
38 Best Western Cascadia Inn Actual / 360
39 Global Plaza West Actual / 360
40 Ponce de Leon Care Center Actual / 360
41 1000 Henry Street Actual / 360
42 55 Post Road West Actual / 360
43 Greenway Terrace Actual / 360
44 Rolla Center Actual / 360
45 Bayside Willows Apartments Actual / 360
46 Westgate Plaza Actual / 360
47 Riverfront Apartments 30 / 360
48 Cheyenne Mountain Shopping Center Actual / 360
49 APPLE CREEK MHP / SELF STORAGE AND ORCHARD LAKE MHP (ROLL-UP ACTUAL / 360
49.10 Apple Creek Mobile Home Park / Self Storage Actual / 360
49.20 First Security Self Storage Actual / 360
49.30 Orchard Lake Mobile Home Park Actual / 360
50 Kennedy Square 30 / 360
51 Westpointe II Apartments Actual / 360
52 CB/Buckhead - Roswell Actual / 360
53 Park Green Apartments Actual / 360
54 Bridle Path Apartments Actual / 360
55 Heritage Court Apartments 30 / 360
56 Hawaii Market Shopping Center Actual / 360
57 Santa Fe Place Apartments 30 / 360
58 Iron Mountain Building 30 / 360
59 Shore Center Shopping Center 30 / 360
60 La Fuente Inn Actual / 360
61 Pueblo Hills Shopping Center Actual / 360
62 The Park Belvedere Actual / 360
63 The Hesser Center 30 / 360
64 Lee Park Plaza Actual / 360
65 Hood River Care Center Actual / 360
66 221 Route 4 East Actual / 360
67 Lochwood III Apartments 30 / 360
68 Essex Warehouse Actual / 360
69 Freeman Decorating Company Actual / 360
70 Doctors Hospital of West Covina Actual / 360
71 Beven Street Warehouse Actual / 360
72 Crescenta Valley Mini Storage Actual / 360
73 Stonebridge Health Center Actual / 360
74 Wagner Heights Nursing and Rehabilitation Center Actual / 360
75 22 East 67th Street Actual / 360
76 Flemington Arms Apartments Actual / 360
77 VARIOUS 30 / 360
77.10 Colonial Park Apartments 30 / 360
77.20 Jackson Trace Apartments 30 / 360
77.30 Fox Valley Apartments 30 / 360
78 Shrewsbury Crossing Assisted Living Facility Actual / 360
79 Clearwater Commons Actual / 360
80 Gillette Nursing Home Actual / 360
81 Sierra Apartments Actual / 360
82 6845 Deerpath Building Actual / 360
2
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83 Palace Plaza Shopping Center Actual / 360
84 Sunplace Apartments Actual / 360
85 Meadow Wood Crown Plaza Actual / 360
86 Oakbridge Retail Center Actual / 360
87 Gateway Plaza Shopping Center Actual / 360
88 VARIOUS 30 / 360
88.10 Eagle Trace Apartments 30 / 360
88.20 Ashbury Court Apartments 30 / 360
89 Office Depot Tallahassee 30 / 360
90 Westbay Assisted Living Residence Actual / 360
100 Yerington Plaza 30 / 360
101 CAPTEC FRANCHISE CAPITAL PARTNERS, L.P. IV 30 / 360
101.10 Arby's Restaurant 30 / 360
101.20 Taco Bell Restaurant 30 / 360
101.30 Taco Bell Restaurant 30 / 360
101.40 Tony Roma's Restaurant 30 / 360
101.50 Del Taco Restaurant 30 / 360
101.60 Winger's Restaurant 30 / 360
102 English Gardens Apartments 30 / 360
103 Pembroke Place North Shopping Center 30 / 360
104 The Northgate Office Building Actual / 360
105 Heritage Estates / Flamingo Shores Actual / 360
106 HIGHLAND HALL/GOLFVIEW MANOR 30 / 360
106.10 Highland Hall 30 / 360
106.20 Golfview Manor 30 / 360
107 Walgreens Drug Store 30 / 360
108 Napoleon Medical Office Building Actual / 360
109 Teakwood Village Apartments 30 / 360
110 Rancho San Diego Self Storage Actual / 360
111 Eden Roc Apartments & Americana Apartments A & B Actual / 360
112 Olathe Duplexes 30 / 360
113 Jamaica Avenue Building Actual / 360
114 Queen Anne's Gate V Apartments Actual / 360
115 Office Depot Ormond Beach 30 / 360
116 Westwinds Mobile Home Park Actual / 360
117 South Arcade Retail Building 30 / 360
118 2801 Red Dog Drive Actual / 360
119 Forest Brooke Apartments Actual / 360
120 Pleasant Village Shopping Center Actual / 360
121 Royal View Gardens Actual / 360
122 Raymour & Flanigan Center Actual / 360
123 Capital City Plaza Actual / 360
124 Quality Inn and Suites - Aberdeen Actual / 360
125 Hen-Ridge Apartments Actual / 360
126 Graham Center Actual / 360
127 Branford Industrial Complex 30 / 360
128 COMFORT INN/KNIGHTS INN ROLL-UP ACTUAL / 360
128.10 Comfort Inn Actual / 360
128.20 Knights Inn Actual / 360
129 KEYSTONE WAY SHOPPES / CVS PHARMACY / TACO BELL ACTUAL / 360
129.10 Sears Hardware / Keystone Way Shoppes Actual / 360
129.20 CVS Pharmacy / Taco Bell Actual / 360
130 Village Shops at Chandler Actual / 360
131 Meldon Place Apartments Actual / 360
132 Monticello Village Apartments 30 / 360
133 12th and Monroe Shops and 1204 Newton St. NE Actual / 360
134 Sierra Apartments Actual / 360
135 Stassney Square Shopping Center 30 / 360
136 Cambridge Plaza Actual / 360
137 Colonial Square Apartments Actual / 360
138 Elks Plaza Shopping Center 30 / 360
139 Days Inn - Arlington Actual / 360
140 Seth I Apartments Actual / 360
141 Post Polaris Business Center 30 / 360
142 1682 Novato Blvd. Actual / 360
143 Lindenwald Plaza Shopping Center Actual / 360
144 T.I.G. Industrial Building Actual / 360
145 Holly Shopping Center 30 / 360
146 Bonneville Gardens Actual / 360
147 CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III 30 / 360
147.10 Jack-in-the-Box 30 / 360
147.20 Taco Bell Restaurant 30 / 360
147.30 Tony Roma's Restaurant 30 / 360
148 Cypress Gardens Mobile Home Park Actual / 360
149 Jamestown Apartments Actual / 360
150 Sorrento Mesa Office Plaza 30 / 360
151 Park Meadows Apartments Actual / 360
152 Carmel Self Storage Actual / 360
153 901 E Street Actual / 360
154 Princeton Woods Shopping Center Actual / 360
155 1212 Hancock Street Actual / 360
156 Winans Home Center 30 / 360
157 Pacific Breeze Apartments 30 / 360
158 Hilltop Willow Branch Apartments Actual / 360
3
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NUMBER PROPERTY NAME METHOD
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159 D'Agostino Supermarket Actual / 360
160 Southbridge Crossing 30 / 360
161 Heathmore II Apartments Actual / 360
162 Tooele Main Street Shops Actual / 360
163 CB/Buckhead - Alpharetta Actual / 360
164 Sandra Court Apartments Actual / 360
165 450 & 440 Waverly Avenue 30 / 360
166 Westheimer Center Actual / 360
167 Winthrop Court Apartments Actual / 360
168 3900 Richmond Avenue Actual / 360
169 Middlefield Mobile Home Park Actual / 360
170 Raintree Office Building Actual / 360
171 1770 Post Road Associates Actual / 360
172 CVS Store Actual / 360
173 Allentown Self Storage Actual / 360
174 Twin Valley Estates Actual / 360
175 636 Eighth Avenue Actual / 360
176 Land O' Lakes Village Apartments 30 / 360
177 131 So. Maple Ave. Actual / 360
178 4140 Lockbourne Actual / 360
179 The Colton Block 30 / 360
180 Magnolia Center Office Building 30 / 360
181 CB/Buckhead - Duluth Actual / 360
182 Willows Apartments Actual / 360
183 Southern Station Actual / 360
184 3951 Vestal Parkway East Actual / 360
185 West Haven Actual / 360
186 Milton Square Shopping Center Actual / 360
187 Kristie Manor Apartments 30 / 360
188 Valley View Actual / 360
189 282-299 Grand Street Actual / 360
190 Issaquah Building Actual / 360
191 Quail Street Commons Actual / 360
192 CB/Buckhead - Fulton Actual / 360
193 Paradise Pointe 30 / 360
194 Boardwalk Boutiques 30 / 360
195 Palm Side Apartments Actual / 360
196 2600-2602 Jefferson Street Actual / 360
197 CE-FAIR Apartments Actual / 360
198 Alamo Self Storage Actual / 360
199 39 Forest Avenue 30 / 360
200 CB/Buckhead - Marietta Actual / 360
201 Diamond Plaza Actual / 360
203 Leverington Court Apartments Actual / 360
204 Oak Bend MHP Actual / 360
205 L'Abri Apartments Actual / 360
206 Willowood East Apartments Actual / 360
207 200-231 Harrison Avenue Actual / 360
209 Rambler Mobile Home Park Actual / 360
210 Howard Johnson Actual / 360
211 Big 5 Sporting Goods - KlamathFalls Actual / 360
212 Big 5 Sporting Goods - Bullhead City Actual / 360
213 Best Western Jed Prouty Motor Inn Actual / 360
214 Winter Woods II Apartments Actual / 360
215 Trade Fair Supermarket Actual / 360
216 Fulton East Shopping Center Actual / 360
218 Park Plaza Shopping Center Actual / 360
221 Jason Commercial Building Actual / 360
4
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222 Sternberg Apartments Actual / 360
223 Hillcrest Apartments Actual / 360
224 235 Glenville Road Actual / 360
226 Commerce Park Office / Warehouse Actual / 360
227 Bel-Air Mobile Home Park Actual / 360
228 Parkchester Apartments Actual / 360
229 Bandera Landing 30 / 360
231 Mt. Orange Mobile Home Park Actual / 360
232 1215 NE 23rd Street Actual / 360
233 Cypress Villas Apartments Actual / 360
234 Neico Investments, LLC Actual / 360
</TABLE>
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