<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 10, 1999
MORGAN STANLEY CAPITAL I INC.
(Exact name of registrant as specified in its charter)
DELAWARE 333-62911 13-3291626
(State or Other (Commission File Number) (I.R.S. Employer
Jurisdiction Incorporation) Identification Number)
--------------------
1585 Broadway
2nd Floor
New York, New York 10036
(principal executive offices)
(212) 761-4000
Item 2. ACQUISITION OR DISPOSITION OF ASSETS
On August 10, 1999, a single series of certificates, entitled Morgan
Stanley Capital I Inc, Commercial Mortgage Pass-Through Certificates, Series
1999-LIFE1 (the "Certificates"), was issued pursuant to a pooling and servicing
agreement dated as of August 1, 1999 (the "Pooling and Servicing Agreement"),
attached hereto as Exhibit 4.1, among Morgan Stanley Capital I Inc. (the
"Depositor") as depositor, Wells Fargo Bank, National Association, as master
servicer and as special servicer, LaSalle Bank National Association, as Trustee
and ABN Amro Bank N.V., as fiscal agent. The Certificates consist of twenty
classes identified as the "Class A-1 Certificates," the "Class A-2
Certificates," the "Class X Certificates," the "Class B Certificates," the
"Class C Certificates," the "Class D Certificates," the "Class E Certificates,"
the "Class F Certificates," the "Class G Certificates," the "Class H
Certificates," the "Class J Certificates," the "Class K Certificates," the
"Class L Certificates," the "Class M Certificates," the "Class N
Certificates," the "Class 0 Certificates," the "Class P 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 126
fixed rate, multifamily and commercial mortgage loans (the "Mortgage Loans")
having, as of the close of business on August 1, 1999 (the "Cut-off Date"), an
aggregate principal balance of $594,046,043 after taking into account all
payments of principal due on the Mortgage Loans on or before such date, whether
or not received.
<PAGE>
The Class A-1 Certificates have an initial Class Principal Balance of
$74,751,000. The Class A-2 Certificates have an initial Class Principal Balance
of $399,000,000. The Class X Certificates have an initial Class Notional Amount
of $594,046,043. The Class B Certificates have an initial Class Principal
Balance of $20,792,000. The Class C Certificates have an initial Class Principal
Balance of $23,762,000. The Class D Certificates have an initial Class Principal
Balance of $8,910,000. The Class E Certificates have an initial Class Principal
Balance of $13,366,000. The Class F Certificates have an initial Class Principal
Balance of $7,426,000. The Class G Certificates have an initial Class Principal
Balance of $1,485,000. The Class H Certificates have an initial Class Principal
Balance of $10,396,000. The Class J Certificates have an initial Class Principal
Balance of $7,426,000. The Class K Certificates have an initial Class Principal
Balance of $4,455,000. The Class L Certificates have an initial Class Principal
Balance of $5,940,000. The Class M Certificates have an initial Certificate
Principal Amount of $4,455,000. The Class N Certificates have an initial
Certificate Principal Amount of $5,346,000. The Class 0 Certificates have an
initial Certificate Principal Amount of $2,079,000. The Class P Certificates
have an initial Certificate Principal Amount of $4,457,043. Capitalized terms
used and not otherwise defined herein shall have the meanings assigned to them
in the Pooling and Servicing Agreement.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of Business Acquired
Not applicable.
(b) Pro Forma Financial Information
Not applicable.
(c) Exhibits.
Exhibit No.
of Item 601 of
Exhibit No. Regulation S-K Description
- ----------- -------------- -----------
4.1 4 Pooling and Servicing Agreement dated as of
August 1, 1999 among Morgan Stanley Capital
I Inc. as depositor, Wells Fargo Bank,
National Association as master servicer and
as special servicer, LaSalle Bank National
Association, as trustee, and ABN Amro Bank
N.V., as fiscal agent.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: August 25, 1999
MORGAN STANLEY CAPITAL I INC.
By: /s/ Russ Rahbany
--------------------------
Name: Russ Rahbany
Title: Vice President
3
<PAGE>
===============================================================================
MORGAN STANLEY CAPITAL I INC.,
as Depositor,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
ABN AMRO BANK N.V.,
as Fiscal Agent
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 1999
----------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-LIFE1
==============================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
ARTICLE I
DEFINITIONS......................................................................................4
Section 1.1 Definitions......................................................................................4
Section 1.2 Calculations Respecting Mortgage Loans..........................................................46
Section 1.3 Calculations Respecting Accrued Interest........................................................46
Section 1.4 Interpretation..................................................................................47
ARTICLE II
DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES.................................................47
Section 2.1 Conveyance of Mortgage Loans....................................................................47
Section 2.2 Acceptance by Trustee...........................................................................49
Section 2.3 Sellers' Repurchase of Mortgage Loans for Document Defects and Breaches of Representations and
Warranties....................................................................................51
Section 2.4 Representations and Warranties..................................................................54
Section 2.5 Conveyance of Interests.........................................................................55
ARTICLE III
THE CERTIFICATES.................... ...........................................................55
Section 3.1 The Certificates................................................................................55
Section 3.2 Registration....................................................................................56
Section 3.3 Transfer and Exchange of Certificates...........................................................56
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates...............................................61
Section 3.5 Persons Deemed Owners...........................................................................62
Section 3.6 Access to List of Certificateholders' Names and Addresses.......................................62
Section 3.7 Book-Entry Certificates.........................................................................62
Section 3.8 Notices to Clearing Agency......................................................................65
Section 3.9 Definitive Certificates.........................................................................66
ARTICLE IV
ADVANCES........................................................................................67
Section 4.1 P&I Advances by Master Servicer.................................................................67
Section 4.2 Servicing Advances..............................................................................67
Section 4.3 Advances by the Trustee and the Fiscal Agent....................................................68
Section 4.4 Evidence of Nonrecoverability...................................................................68
Section 4.5 Interest on Advances; Calculation of Outstanding Advances with Respect to a Mortgage Loan.......69
Section 4.6 Reimbursement of Advances and Advance Interest..................................................69
Section 4.7 Fiscal Agent Termination Event..................................................................71
Section 4.8 Procedure Upon Termination Event................................................................71
Section 4.9 Merger or Consolidation of Fiscal Agent.........................................................72
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<PAGE>
Section 4.10 Limitation on Liability of the Fiscal Agent and Others..........................................72
Section 4.11 Indemnification of Fiscal Agent.................................................................72
ARTICLE V
ADMINISTRATION OF THE TRUST.....................................................................73
Section 5.1 Collections.....................................................................................73
Section 5.2 Application of Funds in the Certificate Account and Interest Reserve Account....................76
Section 5.3 Distribution Account and Reserve Account........................................................78
Section 5.4 Trustee Reports.................................................................................79
Section 5.5 Trustee Tax Reports.............................................................................81
ARTICLE VI
DISTRIBUTIONS...................................................................................82
Section 6.1 Distributions Generally.........................................................................82
Section 6.2 REMIC I.........................................................................................82
Section 6.3 REMIC II........................................................................................83
Section 6.4 REMIC III.......................................................................................89
Section 6.5 Allocation of Realized Losses, Expense Losses and Shortfalls Due to Nonrecoverability...........94
Section 6.6 Net Aggregate Prepayment Interest Shortfalls....................................................96
Section 6.7 Adjustment of Servicing Fees....................................................................96
Section 6.8 Appraisal Reductions............................................................................96
Section 6.9 Compliance with Withholding Requirements........................................................97
Section 6.10 Prepayment Premiums.............................................................................97
ARTICLE VII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT.....................................................98
Section 7.1 Duties of Trustee and the Fiscal Agent..........................................................98
Section 7.2 Certain Matters Affecting the Trustee and the Fiscal Agent.....................................100
Section 7.3 The Trustee and the Fiscal Agent Not Liable for Certificates or Interests or Mortgage Loans....102
Section 7.4 The Trustee and the Fiscal Agent May Own Certificates..........................................103
Section 7.5 Eligibility Requirements for the Trustee and the Fiscal Agent..................................103
Section 7.6 Resignation and Removal of the Trustee or the Fiscal Agent.....................................103
Section 7.7 Successor Trustee or Fiscal Agent..............................................................105
Section 7.8 Merger or Consolidation of Trustee or Fiscal Agent.............................................106
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or Custodian...............................106
Section 7.10 Authenticating Agents..........................................................................108
Section 7.11 Indemnification of Trustee and the Fiscal Agent................................................109
Section 7.12 Fees and Expenses of Trustee and the Fiscal Agent..............................................110
Section 7.13 Collection of Moneys...........................................................................111
Section 7.14 Trustee To Act; Appointment of Successor.......................................................111
Section 7.15 Notification to Holders........................................................................113
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<PAGE>
Section 7.16 Representations and Warranties of the Trustee and the Fiscal Agent.............................113
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Trustee and the
Fiscal Agent.................................................................................115
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.................................................116
Section 8.1 Servicing Standard; Servicing Duties...........................................................116
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Master Servicer......116
Section 8.3 Master Servicer's General Power and Duties.....................................................117
Section 8.4 Primary Servicing and Sub-Servicing............................................................121
Section 8.5 Servicers May Own Certificates.................................................................123
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and Other..............................123
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption Agreements; Due-On-Encumbrance Clause...........125
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files........................................127
Section 8.9 Documents, Records and Funds in Possession of Master Servicer to be Held for the Trustee for
the Benefit of the Certificateholders........................................................128
Section 8.10 Servicing Compensation.........................................................................128
Section 8.11 Master Servicer Reports; Account Statements....................................................130
Section 8.12 Annual Statement as to Compliance..............................................................130
Section 8.13 Annual Independent Public Accountants' Servicing Report........................................130
Section 8.14 Annual Reports Regarding the Mortgaged Properties..............................................131
Section 8.15 Other Available Information and Certain Rights of the Master Servicer..........................131
Section 8.16 Rule 144A Information..........................................................................133
Section 8.17 Inspections....................................................................................134
Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents....................................134
Section 8.19 Specially Serviced Mortgage Loans..............................................................136
Section 8.20 Representations, Warranties and Covenants of the Master Servicer...............................137
Section 8.21 Merger or Consolidation........................................................................138
Section 8.22 Resignation of Master Servicer.................................................................138
Section 8.23 Assignment or Delegation of Duties by Master Servicer..........................................139
Section 8.24 Limitation on Liability of the Master Servicer and Others......................................139
Section 8.25 Indemnification; Third-Party Claims............................................................141
Section 8.26 Exchange Act Reporting.........................................................................143
Section 8.27 Compliance with REMIC Provisions...............................................................144
Section 8.28 Termination....................................................................................144
Section 8.29 Procedure Upon Termination.....................................................................146
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER..........148
Section 9.1 Duties of Special Servicer.....................................................................148
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of Special Servicer....................149
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Section 9.3 Sub-Servicers..................................................................................149
Section 9.4 Special Servicer General Powers and Duties.....................................................149
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption Agreements; Modifications of Specially Serviced
Mortgage Loans; Due-On-Encumbrance Clauses...................................................151
Section 9.6 Release of Mortgage Files......................................................................154
Section 9.7 Documents, Records and Funds in Possession of Special Servicer To Be Held for the Trustee......155
Section 9.8 Representations, Warranties and Covenants of the Special Servicer..............................156
Section 9.9 Standard Hazard, Flood and Comprehensive General Liability Insurance Policies..................157
Section 9.10 Presentment of Claims and Collection of Proceeds...............................................159
Section 9.11 Compensation to the Special Servicer...........................................................159
Section 9.12 Realization Upon Defaulted Mortgage Loans......................................................160
Section 9.13 Foreclosure....................................................................................162
Section 9.14 Operation of REO Property......................................................................162
Section 9.15 Sale of REO Property...........................................................................165
Section 9.16 Realization on Collateral Security.............................................................166
Section 9.17 Sale of Defaulted Mortgage Loans...............................................................167
Section 9.18 Annual Officer's Certificate as to Compliance..................................................167
Section 9.19 Annual Independent Accountants' Servicing Report...............................................167
Section 9.20 Merger or Consolidation........................................................................167
Section 9.21 Resignation of Special Servicer................................................................168
Section 9.22 Assignment or Delegation of Duties by Special Servicer.........................................168
Section 9.23 Limitation on Liability of the Special Servicer and Others.....................................169
Section 9.24 Indemnification; Third-Party Claims............................................................171
Section 9.25 [RESERVED.]....................................................................................173
Section 9.26 Special Servicer May Own Certificates..........................................................173
Section 9.27 Tax Reporting..................................................................................173
Section 9.28 Application of Funds Received..................................................................173
Section 9.29 Compliance with REMIC Provisions...............................................................173
Section 9.30 Termination....................................................................................174
Section 9.31 Procedure Upon Termination.....................................................................175
Section 9.32 Certain Special Servicer Reports...............................................................177
Section 9.33 Special Servicer to Cooperate with the Master Servicer.........................................178
Section 9.34 Certain REMIC Limitations on Modification of Specially Serviced Mortgage Loans.................180
Section 9.35 [RESERVED.]....................................................................................180
Section 9.36 Sale of Defaulted Mortgage Loans and REO Properties............................................180
Section 9.37 Operating Adviser; Elections...................................................................182
Section 9.38 Limitation on Liability of Operating Adviser...................................................183
Section 9.39 Duties of Operating Adviser....................................................................183
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<PAGE>
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST..........................................................184
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans......................184
Section 10.2 Procedure Upon Termination of Trust............................................................185
Section 10.3 Additional Trust Termination Requirements......................................................186
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS............ .....................................................187
Section 11.1 Limitation on Rights of Holders................................................................187
Section 11.2 Access to List of Holders......................................................................188
Section 11.3 Acts of Holders of Certificates................................................................189
ARTICLE XII
REMIC ADMINISTRATION...........................................................................189
Section 12.1 REMIC Administration...........................................................................190
Section 12.2 Prohibited Transactions and Activities.........................................................194
Section 12.3 Modifications of Mortgage Loans................................................................195
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC Status...............................195
ARTICLE XIII
MISCELLANEOUS PROVISIONS.................. ...................................................195
Section 13.1 Binding Nature of Agreement....................................................................195
Section 13.2 Entire Agreement...............................................................................196
Section 13.3 Amendment......................................................................................196
Section 13.4 GOVERNING LAW..................................................................................198
Section 13.5 Notices........................................................................................198
Section 13.6 Severability of Provisions.....................................................................198
Section 13.7 Indulgences; No Waivers........................................................................198
Section 13.8 Headings Not to Affect Interpretation..........................................................199
Section 13.9 Benefits of Agreement..........................................................................199
Section 13.10 Special Notices to the Rating Agencies.........................................................199
Section 13.11 Counterparts...................................................................................200
Section 13.12 Intention of Parties...........................................................................201
Section 13.13 Recordation of Agreement.......................................................................202
Section 13.14 Rating Agency Monitoring Fees..................................................................202
</TABLE>
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<PAGE>
EXHIBITS AND SCHEDULES
-----------------------
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class X Certificate
EXHIBIT A-4 Form of Class B Certificate
EXHIBIT A-5 Form of Class C Certificate
EXHIBIT A-6 Form of Class D Certificate
EXHIBIT A-7 Form of Class E Certificate
EXHIBIT A-8 Form of Class F Certificate
EXHIBIT A-9 Form of Class G Certificate
EXHIBIT A-10 Form of Class H Certificate
EXHIBIT A-11 Form of Class J Certificate
EXHIBIT A-12 Form of Class K Certificate
EXHIBIT A-13 Form of Class L Certificate
EXHIBIT A-14 Form of Class M Certificate
EXHIBIT A-15 Form of Class N Certificate
EXHIBIT A-16 Form of Class O Certificate
EXHIBIT A-17 Form of Class P 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-1 Form of Initial Certification of Trustee
EXHIBIT B-2 Form of Final Certification of Trustee
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to Definitive
Privately Offered Certificates
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of Interests
in Book-Entry Privately Offered Certificates
EXHIBIT E-1 Form of Transfer Affidavit and Agreement
EXHIBIT E-2 Form of Transfer Affidavit and Agreement
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G Form of Primary Servicing Agreement
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of EUROCLEAR or Cedel Certificate
EXHIBIT J List of Loans as to Which Excess Servicing Fees Are Paid
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement I
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement II
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III
EXHIBIT L Form of Inspection Report
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<PAGE>
EXHIBIT M Form of Monthly Certificateholders Reports
EXHIBIT N Form of Annual Report
EXHIBIT O Form of Special Servicer Monthly Reports
EXHIBIT P Reserved
EXHIBIT Q Form of Mortgage Loan Information
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Master Servicer
EXHIBIT S-2 Form of Power of Attorney to Special Servicer
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U Assignment and Assumption Submission to Special Servicer
SCHEDULE I JHREF Loan Schedule
SCHEDULE II MSMC Loan Schedule
SCHEDULE III Principal Loan Schedule
SCHEDULE IV List of Escrow Accounts Not Currently Eligible Accounts
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<PAGE>
THIS POOLING AND SERVICING AGREEMENT is dated as of August 1,
1999 (this "Agreement") among MORGAN STANLEY CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), WELLS FARGO BANK, NATIONAL
ASSOCIATION, as master servicer and special servicer (the "Master Servicer" or
the "Special Servicer", as applicable), LASALLE BANK NATIONAL ASSOCIATION, as
trustee of the Trust (the "Trustee"), and ABN AMRO BANK, N.V., only in its
capacity as a fiscal agent pursuant to Article IV hereof (the "Fiscal Agent").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage
Loans from Principal Commercial Funding, LLC, as seller ("Principal"), John
Hancock Real Estate Finance, Inc., as seller ("JHREF"), and Morgan Stanley
Mortgage Capital Inc., as seller ("MSMC"), and will be the owner of the Mortgage
Loans and the other property being conveyed by it to the Trustee for inclusion
in the Trust which is hereby created. On the Closing Date, the Depositor will
acquire (i) the REMIC I Regular Interests and the Class R-I Certificate as
consideration for its transfer to the Trust of the Mortgage Loans and the other
property constituting the Trust; (ii) the REMIC II Regular Interests and the
Class R-II Certificates as consideration for its transfer of the REMIC I Regular
Interests to the Trust; and (iii) the REMIC III Certificates as consideration
for its transfer of the REMIC II Regular Interests to the Trust. The Depositor
has duly authorized the execution and delivery of this Agreement to provide for
the foregoing and the issuance of (A) the REMIC I Regular Interests and the
Class R-I Certificates representing in the aggregate the entire beneficial
ownership of REMIC I, (B) the REMIC II Regular Interests and the Class R-II
Certificates representing in the aggregate the entire beneficial ownership of
REMIC II and (C) the REMIC III Certificates representing in the aggregate the
entire beneficial ownership of REMIC III. All covenants and agreements made by
the Depositor and the Trustee herein with respect to the Mortgage Loans and the
other property constituting the Trust are for the benefit of the Holders of the
REMIC I Regular Interests, the REMIC II Regular Interests, the Residual
Certificates, and the REMIC Regular Certificates. The parties hereto are
entering into this Agreement, and the Trustee is accepting the trusts created
hereby, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged.
The Class A-1, Class A-2, Class B, Class C, Class D and Class
E Certificates have been offered for sale pursuant to the prospectus (the
"Prospectus") dated July 19, 1999, as supplemented by the preliminary prospectus
supplement dated July 19, 1999 (together with the Prospectus, the "Preliminary
Prospectus Supplement") and as further supplemented by the final prospectus
supplement dated July 28, 1999 (together with the Prospectus, the "Final
Prospectus Supplement") and the Class X, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class R-I, Class R-II and
the Class R-III Certificates have been offered for sale pursuant to the Private
Placement Memorandum dated July 28, 1999 (the "Private Placement Memorandum").
The following sets forth the Class designation, Pass-Through
Rate, initial Aggregate Certificate Balance (or initial Notional Amount) and
Final Scheduled Distribution Date for each Class of REMIC I Regular Interests
and the Class R-I Certificates comprising the interests in REMIC I, each Class
of REMIC II Regular Interests and the Class R-II Certificates
<PAGE>
comprising the interests in REMIC II and each Class of REMIC III
Certificates comprising the interests in REMIC III created hereunder:
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I
Regular Interest") will relate to a specific Mortgage Loan. Each Corresponding
REMIC I Regular Interest will have a pass-through rate equal to the REMIC I Net
Mortgage Rate of the related Mortgage Loan, an initial principal amount (the
initial "Certificate Balance") equal to the Scheduled Principal Balance as of
the Cut-Off Date (as herein defined) of the Mortgage Loan to which the
Corresponding REMIC I Regular Interest relates, and a latest possible maturity
date set to the Maturity Date (as defined herein) of the Mortgage Loan to which
the Corresponding REMIC I Regular Interest relates. The Class R-I Certificate
will be designated as the sole class of residual interests in REMIC I and will
have no Certificate Balance and no Pass-Through Rate, but will be entitled to
receive the proceeds of any assets remaining in REMIC I after all classes of
REMIC I Regular Interests have been paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates
and Certificate Balances set forth in the definition thereof. The Class R-II
Certificates will be designated as the sole class of residual interests in REMIC
II and will have no Certificate Balance and no Pass-Through Rate, but will be
entitled to receive the proceeds of any assets remaining in REMIC II after all
classes of REMIC II Regular Interests have been paid in full.
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<PAGE>
REMIC III
<TABLE>
<CAPTION>
Initial Aggregate
Certificate
Initial Pass- Principal or
Through Notional Final Scheduled Final Rated
Designation Rate(a) Amount Distribution Date(b) Distribution Date(c)
----------- ------ ------ -------------------- --------------------
<S> <C> <C> <C> <C>
Class A-1 6.97% $74,751,000 October 15, 2008 April 15, 2033
Class A-2 7.11% $399,000,000 July 15, 2009 April 15, 2033
Class X 0.34% $594,046,043 June 15, 2019 April 15, 2033
Class B 7.45% $20,792,000 July 15, 2009 April 15, 2033
Class C 7.45% $23,762,000 July 15, 2009 April 15, 2033
Class D 7.45% $8,910,000 July 15, 2009 April 15, 2033
Class E 7.45% $13,366,000 July 15, 2009 April 15, 2033
Class F 7.45% $7,426,000 July 15, 2009 April 15, 2033
Class G 7.45% $1,485,000 July 15, 2009 April 15, 2033
Class H 6.72% $10,396,000 August 15, 2009 April 15, 2033
Class J 6.72% $7,426,000 May 15, 2012 April 15, 2033
Class K 6.72% $4,455,000 September 15, 2013 April 15, 2033
Class L 6.72% $5,940,000 September 15, 2013 April 15, 2033
Class M 6.72% $4,455,000 September 15, 2013 April 15, 2033
Class N 6.72% $5,346,000 September 15, 2013 April 15, 2033
Class O 6.72% $2,079,000 September 15, 2013 April 15, 2033
Class P 6.72% $4,457,043 June 15, 2019 April 15, 2033
Class R-III(d) N/A N/A N/A N/A
</TABLE>
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate."
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is expected
to be paid in full, assuming that timely payments (and no prepayments) will
be made on the Mortgage Loans in accordance with their terms.
(c) The Final Rated Distribution Date for each Class of Certificates is
April 15, 2033. That date is approximately 36 months following the end of
the amortization term of the Mortgage Loan that, as of the Closing Date,
has the longest remaining amortization term.
(d) The Class R-III Certificates will be entitled to receive the proceeds of any
remaining assets in REMIC III after the principal amounts of all Classes of
Certificates have been reduced to zero.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate Principal
Balance of $594,046,043.
As provided herein, with respect to the Trust, the Trustee will make an
election for the segregated pool of assets described in the first paragraph of
Section 12.1(a) hereof (including the Mortgage Loans) to be treated for federal
income tax purposes as a real estate mortgage investment conduit ("REMIC I").
The REMIC I Regular Interests will be designated as the "regular interests" in
REMIC I and the Class R-I Certificates will be designated as the sole class of
"residual interests" in REMIC I.
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<PAGE>
As provided herein, with respect to the Trust, the Trustee
will make an election for the segregated pool of assets described in the second
paragraph of Section 12.1(a) hereof consisting of the REMIC I Regular Interests
to be treated for federal income tax purposes as a real estate mortgage
investment conduit ("REMIC II"). The REMIC II Regular Interests will be
designated as the "regular interests" in REMIC II and the Class R-II
Certificates will be designated as the sole class of " residual interests" in
REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Trustee
will make an election for the segregated pool of assets described in the third
paragraph of Section 12.1(a) hereof consisting of the REMIC II Regular Interests
to be treated for federal income tax purposes as a real estate mortgage
investment conduit ("REMIC III"). The Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates will be designated as the
"regular interests" in REMIC III and the Class R-III Certificates (together with
the REMIC Regular Certificates, the "REMIC III Certificates") will be designated
as the sole class of "residual interests" in REMIC III for purposes of the REMIC
Provisions.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"ACCOUNTANT" means a person engaged in the practice of
accounting who is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each
Distribution Date and any Class of Interests or Principal Balance Certificates,
interest accrued during the Interest Accrual Period relating to such
Distribution Date on the Aggregate Certificate Balance of such Class or Interest
as of the close of business on the immediately preceding Distribution Date at
the respective rates per annum set forth in the definition of the applicable
Pass-Through Rate for each such Class. Accrued Certificate Interest on the Class
X Certificates for each Distribution Date will equal the Class X Interest
Amount.
"ACQUISITION DATE" means the date upon which, under the Code
(and in particular the REMIC Provisions and Section 856(e) of the Code), the
Trust or a REMIC Pool is deemed to have acquired a Mortgaged Property.
"ADDITIONAL TRUST EXPENSE" means any of the following items:
(i) Special Servicing Fees and Liquidation Fees (to the extent not collected
from the related Mortgagor), (ii) Advance Interest that cannot be paid in
accordance with Section 4.6(c); (iii) amounts paid to indemnify the Master
Servicer, the Special Servicer, the Primary Servicers, the Trustee, the Fiscal
Agent (or any other Person) pursuant to the terms of this Agreement; (iv) to the
extent not otherwise paid, any federal, state, or local taxes imposed on the
Trust or its assets and paid from amounts on deposit in the Certificate Account
or Distribution Account, (v) the amount of any
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Advance that is not recovered from the proceeds of a Mortgage Loan upon a Final
Recovery Determination and (vi) to the extent not included in the calculation of
a Realized Loss and not covered by indemnification by one of the parties hereto
or otherwise, any other unanticipated cost, liability, or expense (or portion
thereof) of the Trust (including costs of collecting such amounts or other
Additional Trust Expenses) which the Trust has not recovered, and in the
judgment of the Master Servicer (or Special Servicer, in the case of a Specially
Serviced Mortgage Loan) will not, recover from the related Mortgagor or
Mortgaged Property or otherwise, including a Modification Loss described in
clause (ii) of the definition thereof. Notwithstanding anything to the contrary,
"Additional Trust Expenses" shall not include allocable overhead of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, such as costs
for office space, office equipment, supplies and related expenses, employee
salaries and related expenses, and similar internal costs and expenses.
"ADMINISTRATIVE COST RATE" means the sum of the Master
Servicing Fee Rate, the Primary Servicing Fee Rate, the Excess Servicing Fee
Rate and the Trustee Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the Master
Servicer, the Trustee or the Fiscal Agent on outstanding Advances pursuant to
Section 4.5 of this Agreement.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate
as published in the "Money Rates" section of The Wall Street Journal from time
to time or such other publication as determined by the Trustee in its reasonable
discretion.
"ADVANCE REPORT DATE" means the Business Day prior to each
Distribution Date.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC as a REMIC or (ii) subject to Section 9.14(e), result in
the imposition of a tax upon the income of any REMIC or any of their respective
assets or transactions, including (without limitation) the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth in Section 860G(d) of the Code.
"AFFILIATE" means, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the
Certificate Balances of the Principal Balance Certificates, the REMIC I Regular
Interests or the REMIC II Regular Interests, as the case may be, at any date of
determination. With respect to a Class of Principal Balance Certificates, REMIC
I Regular Interests or REMIC II Regular Interests, Aggregate Certificate Balance
shall mean the aggregate of the Certificate Balances of all Certificates or
Interests, as the case may be, of that Class at any date of determination.
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"AGGREGATE PRINCIPAL BALANCE" means, at the time of any
determination and as the context may require, the aggregate of the Scheduled
Principal Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and
all amendments and supplements hereto.
"ANNUAL REPORT" means a report substantially in the form of
Exhibit N.
"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan,
not later than the earliest of (i) the date 120 days after the occurrence of any
delinquency in payment with respect to such Mortgage Loan if such delinquency
remains uncured, (ii) the date 30 days after receipt of notice that the related
Mortgagor has filed a bankruptcy petition or the related Mortgagor has become
the subject of involuntary bankruptcy proceedings or the related Mortgagor has
consented to the filing of a bankruptcy proceeding against it or a receiver is
appointed in respect of the related Mortgaged Property, provided such petition
or appointment is still in effect, (iii) the effective date of any modification
to a Money Term of a Mortgage Loan, other than an extension of the due date that
a Balloon Payment is due for a period of less than six months from the original
due date of such Balloon Payment, and (iv) the date 30 days following the date
the related Mortgaged Property becomes an REO Property.
"APPRAISAL REDUCTION" means, with respect to any Required
Appraisal Loan with respect to which an Appraisal or internal valuation is
performed pursuant to Section 6.8, an amount equal to the excess of (A) the sum,
as of the first Determination Date that is at least 15 days after the date on
which the Appraisal or internal valuation is obtained or performed, of (i) the
Scheduled Principal Balance of such Mortgage Loan (or, in the case of an REO
Property, the related REO Mortgage Loan), (ii) to the extent not previously
advanced by the Master Servicer, the Trustee or the Fiscal Agent, all unpaid
interest on such Mortgage Loan at a per annum rate equal to the Mortgage Rate,
(iii) all unreimbursed Advances and interest on Advances at the Advance Rate
with respect to such Mortgage Loan, and (iv) to the extent funds on deposit in
any applicable Escrow Accounts are not sufficient therefor, and to the extent
not previously advanced by the Master Servicer, the Trustee or the Fiscal Agent,
all currently due and unpaid real estate taxes and assessments, insurance
premiums and, if applicable, ground rents and other amounts which were required
to be deposited in any Escrow Account (but were not deposited) in respect of
such Mortgaged Property or REO Property, as the case may be, over (B) 90% of the
Appraised Value (net of any prior mortgage liens) of such Mortgaged Property or
REO Property as determined by such Appraisal or internal valuation, as the case
may be. Each Appraisal or internal valuation for a Required Appraisal Loan shall
be updated annually. The Appraisal Reduction for each Required Appraisal Loan
will be recalculated based on subsequent Appraisals, internal valuations or
updates. Any Appraisal Reduction for any Mortgage Loan shall be reduced to
reflect any Realized Principal Losses on the Required Appraisal Loan. Each
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Appraisal Reduction will be reduced to zero as of the date the related Mortgage
Loan is brought current under the then current terms of the Mortgage Loan for at
least three consecutive months, and no Appraisal Reduction will exist as to any
Mortgage Loan after it has been paid in full, liquidated, repurchased or
otherwise disposed of. The Appraisal Reduction will also be reduced by the
amount of any Realized Loss of principal on the related Mortgage Loan incurred
prior to the liquidation or disposition thereof. Notwithstanding the foregoing,
if an internal valuation of the Mortgaged Property is performed, the Appraisal
Reduction will equal the greater of (A) the amount calculated above and (B) 25%
of the Principal Balance of the Mortgage Loan.
"APPRAISED VALUE" means, with respect to any Mortgaged
Property, the appraised value thereof determined by an Appraisal of the
Mortgaged Property securing such Mortgage Loan made by an Independent appraiser
selected by the Master Servicer or the Special Servicer, as applicable or, in
the case of an internal valuation performed pursuant to Section 6.8, the value
of the Mortgaged Property determined by such internal valuation.
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage
Loan, any assignment of leases, rents and profits or equivalent instrument,
whether contained in the related Mortgage or executed separately, assigning to
the holder or holders of such Mortgage all of the related Mortgagor's interest
in the leases, rents and profits derived from the ownership, operation, leasing
or disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage,
notice of transfer or equivalent instrument, in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect the transfer of the Mortgage to the Trustee, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering the Mortgage Loans secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any
Balloon Mortgage Loan for its Maturity Date (provided that such Mortgage Loan
has not been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect thereof, on or before the end of the
Collection Period in which such Maturity Date occurs) and for any subsequent Due
Date therefor as of which such Mortgage Loan remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment that would have been due in respect of such Mortgage Loan on
such Due Date, if it had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule in effect immediately prior to, and without regard to the
occurrence of, its most recent Maturity Date (as such may have been extended in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or the Special Servicer pursuant to the
terms hereof), and (ii) with respect to any REO Mortgage Loan for any Due Date
therefor as of which the related REO Property remains part of the Trust, the
scheduled monthly payment of principal and interest deemed to be due in respect
thereof on such Due Date equal to the Scheduled Payment (or, in the case of a
Balloon Mortgage Loan described in the preceding
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clause of this definition, the Assumed Scheduled Payment) that was due in
respect of the related Mortgage Loan on the last Due Date prior to its becoming
an REO Mortgage Loan.
"AUTHENTICATING AGENT" means any authenticating agent serving
in such capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an
Officer's Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" has the meaning set
forth in Section 4.6(a) hereof.
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, an amount equal to the aggregate of (a) all amounts on
deposit in the Distribution Account as of the commencement of business on such
Distribution Date that represent payments and other collections on or in respect
of the Mortgage Loans and any REO Properties that were received by the Master
Servicer or the Special Servicer through the end of the related Collection
Period exclusive of (i) any such amounts that were deposited in the Distribution
Account in error, (ii) amounts that are payable or reimbursable to any Person
other than the Certificateholders (including amounts payable to the Master
Servicer in respect of unpaid Master Servicing Fees, the Primary Servicers in
respect of unpaid Primary Servicing Fees, the Special Servicer in respect of
unpaid Special Servicer Compensation, the Trustee in respect of unpaid Trustee
Fees or to the parties entitled thereto in respect of the unpaid Excess
Servicing Fees), (iii) amounts that constitute Prepayment Premiums, and (iv) if
such Distribution Date occurs during January or February of any year, the
Interest Reserve Amounts with respect to Interest Reserve Loans deposited in the
Interest Reserve Account, and (b) if and to the extent not already among the
amounts described in clause (a), (i) the aggregate amount of any P&I Advances
made by the Master Servicer, the Trustee or the Fiscal Agent for such
Distribution Date pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate
amount of any Compensating Interest payments made by the Master Servicer or the
Special Servicer for such Distribution Date pursuant to the terms hereof, and
(iii) if such Distribution Date occurs in March of any year, commencing March
2000, the aggregate of the Interest Reserve Amounts then held on deposit in the
Interest Reserve Account in respect of each Interest Reserve Loan.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan which will not
be fully amortized by its original or modified Maturity Date, based on the fixed
monthly Scheduled Payment.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage
Loan, the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"BANKRUPTCY LOSS" means a loss arising from a proceeding
under the United States Bankruptcy Code or any other similar state law or other
proceeding with respect to the Mortgagor of, or Mortgaged Property under, a
Mortgage Loan, including, without limitation, any Deficient Valuation Amount or
losses, if any, resulting from any Debt Service Reduction Amount for the month
in which the related Remittance Date occurs.
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"BENEFIT PLAN OPINION" means an Opinion of Counsel
satisfactory to the Trustee and the Master Servicer to the effect that any
proposed transfer will not (i) cause the assets of any REMIC to be regarded as
plan assets for purposes of the Plan Asset Regulations or (ii) give rise to any
fiduciary duty on the part of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a
beneficial interest in a Class of Certificates, ownership and transfer of which
shall be made through book entries as described in Section 3.7; provided, that
after the occurrence of a condition whereupon book-entry registration and
transfer are no longer authorized and Definitive Certificates are to be issued
to the Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BUSINESS DAY" means any day other than (i) a Saturday or a
Sunday, (ii) a legal holiday in New York, New York, Boston, Massachusetts (but
only with respect to matters related to the performance of obligations of JHREF
as Primary Servicer), Chicago, Illinois, Des Moines, Iowa (but only with respect
to matters related to the performance of obligations of Principal Capital
Management, LLC as Primary Servicer), San Francisco, California or the principal
cities in which the Special Servicer, the Trustee or the Master Servicer
conducts servicing or trust operations, or (iii) a day on which banking
institutions or savings associations in New York, New York, Chicago, Illinois or
San Francisco, California are authorized or obligated by law or executive order
to be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan
other than a Mortgage Loan with respect to which the related Mortgaged Property
became REO Property, the amount of all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds, Purchase Proceeds and other payments or
recoveries with respect to a Final Recovery Determination. The Master Servicer
shall maintain records in accordance with the Servicing Standard (and, in the
case of Specially Serviced Mortgage Loans, based on the written reports with
respect to such Cash Liquidation delivered by the Special Servicer to the Master
Servicer), of each Cash Liquidation.
"CEDEL" means Cedelbank, societe anonyme.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts
established and maintained by the Master Servicer (or any Sub-Servicer or
Primary Servicer on behalf of the Master Servicer) pursuant to Section 5.1(a),
which each account shall be an Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate
or Interest (other than the Class X Certificates and the Residual Certificates)
as of any Distribution Date, the maximum specified dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal to
the initial principal amount set forth on the face of such Certificate (in the
case of a Certificate), or as ascribed thereto in the Preliminary Statement
hereto (in the case of an Interest), minus (i) the amount of all principal
distributions previously made with respect to such Certificate pursuant to
Section 6.4(a) or deemed to have been made
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with respect to such Interest pursuant to Section 6.2(a) or Section 6.3(a), as
the case may be, (ii) all Realized Losses allocated or deemed to have been
allocated to such Interest or Certificate pursuant to Section 6.5, and (iii)
Expense Losses allocated to such Interest or Certificate pursuant to
Section 6.5.
"CERTIFICATE OWNER" means, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Book-Entry
Certificate, as may be reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing Agency (directly or
as an indirect participant, in accordance with the rules of such Clearing
Agency).
"CERTIFICATE REGISTER" has the meaning provided in
Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed
pursuant to Section 3.2 and initially shall be the Trustee.
"CERTIFICATEHOLDERS" has the meaning provided in the
definition of "Holder."
"CERTIFICATES" means, collectively, the REMIC III
Certificates, the Class R-I Certificates and the Class R-II Certificates.
"CLASS" means, with respect to the REMIC I Interests, REMIC
II Interests or REMIC III Certificates, any Class of such Certificates or
Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS X
CERTIFICATES," "CLASS B CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D
CERTIFICATES," "CLASS E CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G
CERTIFICATES," "CLASS H CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K
CERTIFICATES," "CLASS L CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N
CERTIFICATES," "CLASS O CERTIFICATES," "CLASS P CERTIFICATES," "CLASS R-I
CERTIFICATES," "CLASS R-II CERTIFICATES" or "CLASS R-III CERTIFICATE " mean the
Certificates designated as "Class A-1," "Class A-2," "Class X," "Class B,"
"Class C," "Class D," "Class E," "Class F," "Class G," "Class H," "Class J,"
"Class K," "Class L," "Class M," "Class N," "Class O," "Class P," "Class R-I,"
"Class R-II" and "Class R-III," respectively, on the face thereof, in
substantially the form attached hereto as Exhibits A-1 through A-20 hereof.
"CLASS A CERTIFICATES" means the Class A-1 Certificates and
Class A-2 Certificates, collectively.
"CLASS X INTEREST AMOUNT" means, with respect to any
Distribution Date and the related Interest Accrual Period, interest equal to the
product of (i) one-twelfth of a per annum rate equal to the weighted average of
the Class X Strip Rates for the Class A-1 Certificates, Class A-2 Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H Certificates,
Class J Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates, Class O Certificates and Class P
Certificates, weighted on the basis of the respective Certificate Balances of
such Classes of Certificates, and (ii) the Class X Notional Amount for such
Distribution Date.
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"CLASS X NOTIONAL AMOUNT" means, with respect to any
Distribution Date, the aggregate of the Certificate Balances of the REMIC
Regular Certificates as of the close of business on the related Distribution
Date.
"CLASS X STRIP RATE" means, for any Distribution Date, with
respect to any Class of Certificates (other than the Class X Certificates and
the Residual Certificates), the excess, if any, of the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date over (i) the Pass-Through Rate for
such Class of Certificates.
"CLEARING AGENCY" means an organization registered as a
"clearing agency" pursuant to Section 17A of the 1934 Act, which initially shall
be the Depository.
"CLOSING DATE" means August 10, 1999.
"CODE" means the Internal Revenue Code of 1986, as amended,
any successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution
Date, the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or in the case of the first
Distribution Date, the Cut-Off Date) and ending on the Determination Date in the
month in which the Distribution Date occurs.
"COMPENSATING INTEREST" means with respect to any
Distribution Date, an amount equal to the excess of (A) Prepayment Interest
Shortfalls resulting from Principal Prepayments during the related Collection
Period over (B) Prepayment Interest Excesses resulting from Principal
Prepayments during the same Collection Period, but in any event (i) with respect
to Compensating Interest to be paid by the Master Servicer hereunder, not more
than the portion of the aggregate Master Servicing Fee for the related
Collection Period calculated in respect of all the Mortgage Loans (including REO
Mortgage Loans) and (ii) with respect to Compensating Interest to be paid by the
Special Servicer hereunder, not more than the portion of the aggregate Special
Servicing Fee for the related Collection Period calculated in respect of all the
Specially Serviced Mortgage Loans, including REO Mortgage Loans.
"CONDEMNATION PROCEEDS" means any awards resulting from the
full or partial condemnation or any eminent domain proceeding or any conveyance
in lieu or in anticipation thereof with respect to a Mortgaged Property by or to
any governmental, quasi-governmental authority or private entity with
condemnation powers other than amounts to be applied to the restoration,
preservation or repair of such Mortgaged Property or released to the related
Mortgagor in accordance with the terms of the Mortgage Loan.
"CONTROLLING CLASS" means the most subordinate Class of REMIC
Regular Certificates outstanding at any time of determination; provided, that,
no Class may be the Controlling Class at any time that the then Certificate
Balance of such Class is less than 25% of the initial Certificate Balance of
such Class. As of the Closing Date, the Controlling Class will be the Class P
Certificates.
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"CONTROLLING PERSON" means, with respect to any Person, any
other Person who "controls" such Person within the meaning of the 1933 Act.
"CORPORATE TRUST OFFICE" means, with respect to the
presentment and surrender of Certificates for the final distribution thereon or
the presentment and surrender of Certificates for any other purpose, the
principal corporate trust office of the Trustee or the New York Presenting
Office (if any). The principal corporate trust office of the Trustee is
presently located at 135 South LaSalle Street, Suite 1625, Chicago, IL 60674,
Attention: Asset-Backed Securities Trust Services Group-- Morgan Stanley Series
1999-LIFE1, or at such other address as the Trustee may designate from time to
time by notice to the Certificateholders, the Depositor, the Master Servicer and
the Special Servicer.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect
to each Mortgage Loan, the REMIC I Regular Interest having an initial
Certificate Balance equal to the principal balance of such Mortgage Loan
outstanding as of the Cut-Off Date, after taking into account all principal and
interest payments made or due prior to the Cut-Off Date.
"CORRESPONDING REMIC II REGULAR INTEREST" means with respect
to each Class of Certificates, the REMIC II Regular Interest having the same
letter designation.
"CUSTODIAN" means the Trustee or any Person who is appointed
by the Trustee at any time as custodian pursuant to Section 7.9 and who is
unaffiliated with the Depositor and each Seller and satisfies the eligibility
requirements of the Trustee as set forth in Section 7.5.
"CUSTOMER" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"CUT-OFF DATE" means the end of business on August 1, 1999.
The Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than
the first day of each month shall be the end of business on August 5, 1999.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any
Mortgage Loan, as of any date of determination and for any period, the amount
calculated for such date of determination in accordance with the procedures set
forth in Exhibit T.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due
Date and the related Determination Date, the amount of the reduction of the
Scheduled Payment which a Mortgagor is obligated to pay on such Due Date with
respect to a Mortgage Loan as a result of any proceeding under bankruptcy law or
any similar proceeding (other than a Deficient Valuation Amount); provided,
however, that in the case of an amount that is deferred, but not forgiven, such
reduction shall include only the net present value (calculated at the related
Mortgage Rate) of the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan which is in
default under the terms of the applicable Mortgage Loan documentation and for
which any applicable grace period has expired.
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"DEFEASANCE COLLATERAL" means, with respect to any Defeasance
Loan, the United States Treasury obligations required to be pledged in lieu of
prepayment pursuant to the terms thereof.
"DEFEASANCE LOAN" means any Mortgage Loan which requires or
permits the related Mortgagor (or permits the holder of such Mortgage Loan to
require the related Mortgagor) to pledge Defeasance Collateral to such holder in
lieu of prepayment.
"DEFICIENT VALUATION" means, with respect to any Mortgage
Loan, a valuation by a court of competent jurisdiction of the Mortgaged Property
relating to a Mortgage Loan in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
initiated under the United States Bankruptcy Code, as amended from time to time,
and that reduces the amount the Mortgagor is required to pay under such Mortgage
Loan.
"DEFICIENT VALUATION AMOUNT" means the amount by which the
total amount due with respect to a Mortgage Loan (excluding interest not yet
accrued), including the principal balance of a Mortgage Loan plus any accrued
and unpaid interest thereon and any other amounts recoverable from the Mortgagor
with respect thereto pursuant to the terms thereof, is reduced in connection
with a Deficient Valuation.
"DEFINITIVE CERTIFICATES" means Certificates of any Class
issued in definitive, fully registered, certificated form without interest
coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is
repurchased from the Trust pursuant to the terms hereof or as to which one or
more Qualifying Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Morgan Stanley Capital I Inc., a Delaware
corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations
dated August 10, 1999 by and among the Depositor, the Trustee and the
Depository.
"DETERMINATION DATE" means, with respect to any Distribution
Date, the earlier of (i) the 10th day of the month in which such Distribution
Date occurs or, if such day is not a Business Day, the next preceding Business
Day, and (ii) the 4th Business Day prior to the related Distribution Date,
commencing September 9, 1999.
"DIRECTLY OPERATE" means, with respect to any REO Property,
the furnishing or rendering of services to the tenants thereof, the management
or operation of such REO Property, the holding of such REO Property primarily
for sale to customers (other than a sale of an REO Property pursuant to and in
accordance with Section 9.15 or Section 9.36), the performance of any
construction work thereon or any use of such REO Property in a trade or business
conducted by the Trust, in each case other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer on
behalf of the Trustee) shall not be considered to Directly
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Operate an REO Property solely because the Trustee (or the Special Servicer on
behalf of the Trustee) establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance, or makes decisions as to repairs,
tenant improvements or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
connection with leasing activity) or undertakes any ministerial action
incidental thereto.
"DISCOUNT RATE" means the rate which, when compounded
monthly, is equivalent to the Treasury Rate when compounded semi-annually. The
"Treasury Rate" is the yield calculated by the linear interpolation of the
yields, as reported in Federal Reserve Statistical Release H.15--Selected
Interest Rates under the heading "U.S. government securities/Treasury constant
maturities" for the week ending prior to the date of the relevant principal
prepayment, of U.S. Treasury constant maturities with a maturity date (one
longer and one shorter) most nearly approximating the maturity date of the
Mortgage Loan prepaid. If Release H.15 is no longer published, the Master
Servicer will select a comparable publication to determine the Treasury Rate.
"DISQUALIFIED ORGANIZATION" means any of (i) the United
States, any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for FHLMC,
a majority of its board of directors is not selected by any such governmental
unit), (ii) a foreign government, international organization or any agency or
instrumentality of either of the foregoing, (iii) an organization (except
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from tax imposed by Chapter 1 of the Code (unless such organization is
subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code, and (v) any other Person so designated by the Master
Servicer based upon an Opinion of Counsel that the holding of an ownership
interest in a Residual Certificate by such Person may cause any of the REMICs,
or any Person having an Ownership Interest in any Class of Certificates, other
than such Person, to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the transfer of an ownership
interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to
any Distribution Date and any Class of Certificates (other than the Residual
Certificates) or Interests, the sum of (A) Accrued Certificate Interest, reduced
by (i) any Net Aggregate Prepayment Interest Shortfalls not offset by
Compensating Interest, allocated on such Distribution Date to such Class or
Interest pursuant to Section 6.6, and (ii) Realized Losses and Expense Losses
allocated on such Distribution Date to reduce the interest payable to such Class
or Interest pursuant to Section 6.5, plus (B) the Unpaid Interest.
"DISTRIBUTION ACCOUNT" means the Distribution Account
maintained by the Trustee, in accordance with the provisions of Section 5.3,
which account shall be an Eligible Account.
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"DISTRIBUTION DATE" means the 15th day of each month or, if
such day is not a Business Day, the next succeeding Business Day, commencing
September 15, 1999.
"DOCUMENT DEFECT" has the meaning set forth in
Section 2.3(a).
"DUE DATE" means, with respect to a Mortgage Loan, the date
on which a Scheduled Payment is due.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any
of the following: (i) maintained with a depository institution or trust company
whose (A) commercial paper, short-term unsecured debt obligations or other
short-term deposits are rated at least "A-1" by S&P and "F-1+" by Fitch, if the
deposits are to be held in the account for 30 days or less), or (B) long-term
unsecured debt obligations are rated at least "A-" by S&P and "AA" by Fitch, if
the deposits are to be held in the account more than 30 days or (ii) a
segregated trust account or accounts maintained in the trust department of the
Trustee or other financial institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), or (iii) an account or accounts of a depository
institution acceptable to each Rating Agency, as evidenced by Rating Agency
Confirmation with respect to the use of any such account as the Certificate
Account or the Distribution Account. Notwithstanding anything in the foregoing
to the contrary, an account shall not fail to be an Eligible Account solely
because it is maintained with Norwest Bank Iowa, N.A. a wholly-owned subsidiary
of Wells Fargo & Co. provided that Norwest Bank Iowa, N.A.'s or its parent's (A)
commercial paper, short-term unsecured debt obligations or other short-term
deposits are at least "A-1" in the case of S&P, and "F-1" in the case of Fitch,
if the deposits are to be held in the account for 30 days or less, or (B)
long-term unsecured debt obligations are rated at least "A+" in the case of S&P
and "A+" in the case of Fitch, if the deposits are to be held in the account
more than 30 days.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property.
(i) direct obligations of, and obligations fully guaranteed
as to timely payment of principal and interest by, the United States of America,
FNMA, FHLMC or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; provided that any obligation of FNMA or FHLMC, other than an
unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible
Investment only if Rating Agency Confirmation is obtained with respect
to such investment;
(ii) demand or time deposits in, unsecured certificates of
deposit of, money market deposit accounts of, or bankers' acceptances issued by,
any depository institution or trust company (including the Trustee, the Master
Servicer, the Special Servicer or any Affiliate of the Master Servicer, the
Special Servicer or the Trustee, acting in its commercial capacity) incorporated
or organized under the laws of the United States of America or any State thereof
and subject to supervision and examination by federal or state banking
authorities, so long as the commercial paper or other short-term debt
obligations of such depository institution or trust company are rated "F-1+" by
Fitch and "A-1+" by S&P or the long-term unsecured debt
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obligations of such depository institution or trust company have been assigned a
rating by each Rating Agency at least equal "AA" by Fitch and AA- by S&P or its
equivalent or, in each case, if not rated by a Rating Agency, then such Rating
Agency has issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to
any security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase obligation
will mature prior to the Business Day preceding the next date upon which, as
described in this Agreement, such amounts are required to be withdrawn from the
Certificate Account and which meets the minimum rating requirement for such
entity described above (or for which Rating Agency Confirmation is obtained with
respect to such ratings);
(iv) securities (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities are rated "AA-" or its equivalent by each Rating
Agency, unless otherwise specified in writing by the Rating Agency; provided
that securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation and
held in the Certificate Account to exceed 5% of the sum of the aggregate
Certificate Principal Balance of the Principal Balance Certificates and the
aggregate principal amount of all Eligible Investments in the Certificate
Account;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof) rated
"F-1+" by Fitch and "A-1+" by S&P (or for which Rating Agency Confirmation is
obtained with respect to such ratings);
(vi) units of investment funds (including money market funds)
rated in the highest long-term category by Fitch, or if not rated by Fitch then
otherwise approved by Fitch, and the highest long-term category by S&P, or if
not rated by S&P then S&P has issued a Rating Agency Confirmation;
(vii) guaranteed reinvestment agreements maturing within 365
days or less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than "AA" (or its equivalent rating)
by Fitch and "AA-" by S&P (if rated by Fitch or, if not rated by Fitch, by S&P
and another nationally recognized statistical rating organization), or for which
Rating Agency Confirmation is obtained with respect to such ratings;
(viii) any money market funds that maintain a constant asset
value and that are rated "AAAm" or "AAAm-G" (or its equivalent rating) by S&P
and Fitch, and any other demand, money-market or time deposit, or any other
obligation, security or investment, with respect to which Rating Agency
Confirmation has been obtained; and
(ix) such other investments bearing interest or sold at a
discount, earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-
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2(g)(i) (as evidenced by an Opinion of Counsel delivered to the Trustee by the
Master Servicer at the Master Servicer's expense), as are acceptable to the
Rating Agencies (as evidenced by Rating Agency Confirmation) and treated as
"permitted investments" that are "cash flow investments" under Code Section
860G(a)(5);
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Code Section 860G(a)(5); and provided, further,
that any such instrument shall have a maturity date no later than the date such
instrument is required to be used to satisfy the obligations under this
Agreement, and, in any event, shall not have a maturity in excess of one year;
any such instrument must have a predetermined fixed dollar of principal due at
maturity that cannot vary or change; if rated, the obligation must not have an
"r" highlighter affixed to its rating; interest on any variable rate instrument
shall be tied to a single interest rate index plus a single fixed spread (if
any) and move proportionally with that index; and provided, further, that no
amount beneficially owned by any REMIC Pool (including any amounts collected by
the Master Servicer but not yet deposited in the Certificate Account) may be
invested in investments treated as equity interests for Federal income tax
purposes. No Eligible Investments shall be purchased at a price in excess of
par. For the purpose of this definition, units of investment funds (including
money market funds) shall be deemed to mature daily.
"ENVIRONMENTAL LAWS" means any and all federal, state and
local statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ESCROW ACCOUNT" means an account established by or on behalf
of the Master Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a
Mortgage Loan for taxes, assessments, water rates, Standard Hazard Insurance
Policy premiums, ground lease
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payments, reserves for capital improvements, deferred maintenance, repairs,
tenant improvements, leasing commissions, rental achievements, environmental
matters and other reserves or comparable items.
"EVENT OF DEFAULT" has the meaning set forth in
Section 8.28(b).
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any
Mortgage Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or
related REO Property, over (ii) the amount that would have been received if a
Principal Prepayment in full had been made with respect to such Mortgage Loan on
the date such proceeds were received.
"EXCESS SERVICING FEE" means with respect to the designated
Mortgage Loans specified on the Mortgage Loan Schedule, the monthly fee payable
to (a) Wells Fargo Bank, National Association or its successors and assigns, and
(b) John Hancock Real Estate Finance, Inc. or its successors and assigns, each
as holder of excess servicing rights, which fee shall accrue on the Scheduled
Principal Balance of each such Mortgage Loan immediately prior to the Due Date
occurring in each month at the per annum rate (determined in the same manner as
the applicable Mortgage Rate for such Mortgage Loan is determined for such
month) specified on the Mortgage Loan Schedule (the "Excess Servicing Fee
Rate"). Each holder of excess servicing rights is entitled to Excess Servicing
Fees only with respect to the Mortgage Loans as indicated on Exhibit J hereto.
"EXCHANGE CERTIFICATION" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A-IAI Global
Certificate, as applicable.
"EXPENSE LOSS" means a loss realized upon payment by the
Trust of an Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or
any successor thereto.
"FHLMC AUDIT PROGRAM" has the meaning set forth in
Section 8.13.
"FINAL CERTIFICATION" has the meaning set forth in
Section 2.2.
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in
the Preliminary Statement hereto.
"FINAL RATED DISTRIBUTION DATE" means with respect to each
rated Class of Certificates, the date shown on the chart in the Preliminary
Statement hereto.
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"FINAL RECOVERY DETERMINATION" means a determination with
respect to any Mortgage Loan or Specially Serviced Mortgage Loan by the Master
Servicer in consultation with the Special Servicer in respect of any Defaulted
Mortgage Loan (including a Mortgage Loan that became an REO Property), in each
case, in its good faith discretion, consistent with the Servicing Standard that
all Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, Purchase
Proceeds and other payments or recoveries which the Master Servicer or the
Special Servicer, as the case may be, expects to be finally recoverable on such
Mortgage Loan, without regard to any obligation of the Master Servicer, the
Trustee or the Fiscal Agent, as the case may be, to make payments from its own
funds pursuant to Article IV hereof, have been recovered. The Special Servicer
shall be required to provide the Master Servicer with prompt written notice of
any Final Recovery Determination with respect to any Specially Serviced Mortgage
Loan upon making such determination. The Master Servicer shall notify the
Trustee of such determination and the Trustee shall deliver a copy of such
notice to each Rating Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of
rated Certificates, the Distribution Date on which such Class will be paid in
full assuming that timely payments will be made on the Mortgage Loans in
accordance with their terms.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking
association organized under the laws of the Netherlands and its permitted
successors and assigns.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in
Section 4.7 hereof.
"FITCH" means Fitch IBCA, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or
any successor thereto.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global
Certificate, Regulation S Temporary Global Certificate or Regulation S Permanent
Global Certificate.
"HOLDER" means the Person in whose name a Certificate is
registered on the Certificate Register.
"INDEPENDENT" means, when used with respect to any
Accountants, a Person who is "independent" within the meaning of Rule 2-01(B) of
the Securities and Exchange Commission's Regulation S-X. Independent means, when
used with respect to any other Person, a Person who (A) is in fact independent
of another specified Person and any Affiliate of such other Person, (B) does not
have any material direct or indirect financial interest in such other Person or
any Affiliate of such other Person, (C) is not connected with such other Person
or any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to
any Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the Master Servicer (other than the Master Servicer, but which may
be an Affiliate of the Master Servicer),
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or (B) that is a Specially Serviced Mortgage Loan, any Person designated by the
Special Servicer that would be an "independent contractor" with respect to the
applicable REMIC Pool within the meaning of Section 856(d)(3) of the Code if
such REMIC Pool were a real estate investment trust (except that the ownership
test set forth in such Section shall be considered to be met by any Person that
owns, directly or indirectly, 35% or more of the Aggregate Certificate Balance
or Notional Amount, as the case may be, of any Class of the Certificates (other
than the Class R-III Certificates), a Percentage Interest of 35% or more in the
Class R-III Certificates or such other interest in any Class of the Certificates
or of the applicable REMIC Pool as is set forth in an Opinion of Counsel, which
shall be at no expense to the Trustee or the Trust) so long as such REMIC Pool
does not receive or derive any income from such Person and provided that the
relationship between such Person and such REMIC Pool is at arm's length, all
within the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any
other Person (including the Master Servicer or the Special Servicer) upon
receipt by the Trustee of an Opinion of Counsel, which shall be at the expense
of the Person delivering such opinion to the Trustee, to the effect that the
taking of any action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a) of the Code), or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"INITIAL CERTIFICATION" has the meaning set forth in
Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on
the Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
"INSPECTION REPORT" means the report delivered by the Master
Servicer or the Special Servicer, as the case may be, substantially in the form
of Exhibit L hereto.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional
accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act.
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy or title insurance policy relating to
the Mortgage Loans or the Mortgaged Properties in effect as of the Closing Date
or thereafter during the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under
any Insurance Policy, other than amounts required to be paid over to the
Mortgagor pursuant to law, the related Mortgage Loan or the Servicing Standard.
"INTEREST" means a REMIC I Interest or a REMIC II Interest,
as applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date,
with respect to all Classes of Certificates and Interests (other than the
Residual Certificates), the period beginning on the first day of the month
preceding the month in which such Distribution Date occurs and ending on the
last day of the month preceding the month in which such Distribution Date
occurs.
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"INTEREST RESERVE ACCOUNT" means, that Interest Reserve
Account maintained by the Master Servicer pursuant to Section 5.1(a) which
account shall be an Eligible Account.
"INTEREST RESERVE AMOUNT" has the meaning set forth in
Section 5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which
bear interest on an actual/360 day basis.
"INTERESTED PERSON" means, as of any date of determination,
the Master Servicer, the Special Servicer, the Depositor, with respect to any
Mortgage Loan, the holder of any related Junior Indebtedness, a holder of 50% or
more of the Controlling Class, the Operating Adviser, any Independent Contractor
engaged by the Master Servicer or the Special Servicer pursuant to this
Agreement, or any Person actually known to a Responsible Officer of the Trustee
to be an Affiliate of any of them.
"JHREF" has the meaning assigned in the Preliminary Statement
hereto.
"JHREF LOANS" means, collectively those Mortgage Loans sold
to the Depositor pursuant to Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor
that is secured by a lien that is junior in right of payment to the lien of the
Mortgage securing the related Mortgage Note.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan,
all amounts received during any Collection Period, whether as late payments or
as Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds or otherwise, that represent payments or collections of Scheduled
Payments due but delinquent for a previous Collection Period and not previously
recovered.
"LATE FEES" means a fee payable to the Master Servicer or the
Special Servicer, as the case may be, to the extent actually collected from the
Mortgagor as provided in the related Mortgage Loan in connection with a late
payment made by such Mortgagor.
"LIQUIDATION EXPENSES" means reasonable and direct expenses
incurred by the Special Servicer on behalf of the Trust in connection with the
enforcement and liquidation of any Specially Serviced Mortgage Loan or REO
Property acquired in respect thereof including, without limitation, reasonable
legal fees and expenses, committee or referee fees, property manager fees, and,
if applicable, brokerage commissions and conveyance taxes for such Specially
Serviced Mortgage Loan. All Liquidation Expenses relating to enforcement and
disposition of the Specially Serviced Mortgage Loan shall be (i) paid out of
income from the related REO Property, to the extent available or (ii) advanced
by the Master Servicer, subject to Section 4.4 hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x)
1.0% and (y) the Liquidation Proceeds received in connection with a final
disposition of a Specially Serviced Mortgage Loan or REO Property.
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"LIQUIDATION PROCEEDS" means proceeds from the sale or
liquidation of a Mortgage Loan or related REO Property, net of Liquidation
Expenses and any related Advances and interest thereon (to the extent not
otherwise paid pursuant to Section 4.6(c)).
"LIQUIDATION REALIZED LOSS" means, with respect to each
Mortgage Loan or REO Property, as the case may be, as to which a Cash
Liquidation or REO Disposition has occurred, an amount equal to the sum, without
duplication, of (A) the Principal Balance of the Mortgage Loan (or deemed
Principal Balance, in the case of an REO Mortgage Loan) as of the date of the
Cash Liquidation or REO Disposition, plus (B) unpaid interest and interest
accrued thereon at the applicable Mortgage Rate, plus (C) any expenses incurred
in connection with such Mortgage Loan that are reimbursable to any Person, other
than amounts previously treated as Expense Losses or included in the definition
of Liquidation Expenses minus the sum of (i) REO Income applied as recoveries of
principal or interest on the related Mortgage Loan or REO Property, and (ii)
Liquidation Proceeds, Late Collections and all other amounts recovered from the
related Mortgagor and received during the Collection Period in which such Cash
Liquidation or REO Disposition occurred. REO Income and Liquidation Proceeds
shall be applied first against any Expense Losses (to the extent not included in
the definition of Liquidation Expenses) for such Mortgage Loan, the unpaid
interest on the Mortgage Loan, calculated as described in clause (B) above, and
then against the principal balance of such Mortgage Loan, calculated as
described in clause (A) above.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a
Mortgage Loan, the fraction, expressed as a percentage, the numerator of which
is the principal balance of such Mortgage Loan at the date of determination and
the denominator of which is the value of the Mortgaged Property as shown on the
most recent Appraisal or valuation of the Mortgaged Property which is available
as of such date.
"LOCK-BOX ACCOUNT" has the meaning set forth in
Section 8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage
Loan, any lock-box agreement relating to such Mortgage Loan among the related
Mortgagor, a depositary institution and the Master Servicer pursuant to which a
Lock-Box Account is created.
"LOSSES" has the meaning set forth in Section 12.4.
"MAI" means Member of the Appraisal Institute.
"MASTER SERVICER" means Wells Fargo Bank, National
Association and its permitted successors or assigns.
"MASTER SERVICER REMITTANCE DATE" means for each Distribution
Date the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared
by the Master Servicer and in such media as may be agreed upon by the Master
Servicer and the Trustee containing such information regarding the Mortgage
Loans as will permit the Trustee to calculate the amounts to be distributed to
the Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report to Certificateholders required to be delivered
hereunder
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and containing such additional information as the Master Servicer, the Trustee
and the Depositor may from time to time mutually agree.
"MASTER SERVICING FEE" means for each calendar month, as to
each Mortgage Loan (including REO Mortgage Loans and Defeasance Loans), the
Master Servicing Fee Rate applicable to such month (determined in the same
manner as the applicable Mortgage Rate is determined for such Mortgage Loan for
such month) multiplied by the Scheduled Principal Balance of each Mortgage Loan
immediately before the Due Date occurring in such month, subject to reduction in
respect of Compensating Interest, as set forth in Section 8.10(c).
"MASTER SERVICING FEE RATE" means, with respect to each
Mortgage Loan (including any Mortgage Loan relating to an REO Property), the
rate per annum specified as such on the Mortgage Loan Schedule.
"MATURITY DATE" means, with respect to any Mortgage Loan as
of any date of determination, the date on which the last payment of principal is
due and payable under the related Mortgage Note, after taking into account all
Principal Prepayments received and any Deficient Valuation, Debt Service
Reduction Amount or modification of the Mortgage Loan occurring prior to such
date of determination, but without giving effect to (i) any acceleration of the
principal of such Mortgage Loan or (ii) any grace period permitted by the
related Mortgage Note.
"MODIFICATION FEE" means a fee, if any, collected from a
Mortgagor by the Master Servicer in connection with a modification of any
Mortgage Loan other than a Specially Serviced Mortgage Loan or collected by the
Special Servicer in connection with the modification of a Specially Serviced
Mortgage Loan.
"MODIFICATION LOSS" means (i) a decrease in the principal
balance of a Mortgage Loan as a result of a modification thereof in accordance
with the terms hereof, (ii) any expenses connected with such modification, to
the extent (x) reimbursable to the Trustee, the Special Servicer or the Master
Servicer and (y) not recovered from the Mortgagor or (iii) in the case of a
modification of a Mortgage Loan that reduces the Mortgage Rate thereof, the
excess, on each Due Date, of the amount of interest that would have accrued at a
rate equal to the original Mortgage Rate, over interest that actually accrued on
such Mortgage Loan during the preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan, the
Maturity Date, Mortgage Rate, principal balance, amortization term or payment
frequency thereof or any provision thereof requiring the payment of a prepayment
premium, yield maintenance payment or percentage premium in connection with a
principal prepayment (and shall not include late fees or default interest
provisions).
"MONTHLY CERTIFICATEHOLDERS REPORT" means a report provided
pursuant to Section 5.4 by the Trustee monthly as of the related Determination
Date generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the amount, if any, of such distributions to the holders
of each Class of Principal Balance Certificates applied to reduce the respective
Certificate Balances thereof; (ii) the amount of such distribution to holders of
each
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Class of Certificates allocable to (A) interest accrued at the respective
Pass-Through Rates, less any Net Aggregate Prepayment Interest Shortfalls and
(B) Prepayment Premiums; (iii) the number of outstanding Mortgage Loans and the
aggregate Principal Balance and Scheduled Principal Balance of the Mortgage
Loans at the close of business on such Determination Date; (iv) the number and
aggregate Scheduled Principal Balance of Mortgage Loans (A) delinquent 30-59
days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, (D) as to which
foreclosure proceedings have been commenced, or (E) as to which bankruptcy
proceedings have been commenced; (v) with respect to any REO Property included
in the Trust, the Principal Balance of the related Mortgage Loan as of the date
of acquisition of the REO Property and the Scheduled Principal Balance thereof;
(vi) as of the related Determination Date (A) as to any REO Property sold during
the related Collection Period, the date of the related determination by the
Special Servicer that it has recovered all payments which it expects to be
finally recoverable and the amount of the proceeds of such sale deposited into
the Certificate Account, and (B) the aggregate amount of other revenues
collected by the Special Servicer with respect to each REO Property during the
related Collection Period and credited to the Certificate Account, in each case
identifying such REO Property by the loan number of the related Mortgage Loan;
(vii) the Aggregate Certificate Balance or Notional Amount, as the case may be,
of each Class of Certificates before and after giving effect to the distribution
made on such Distribution Date; (viii) the aggregate amount of Principal
Prepayments made during the related Collection Period; (ix) the Pass-Through
Rate applicable to each Class of Certificates for such Distribution Date; (x)
the aggregate amount of servicing fees paid to the Master Servicer, the Primary
Servicers, the Special Servicer and the holders of the rights to Excess
Servicing Fees; (xi) the amount of Unpaid Interest, Realized Losses or Expense
Losses, if any, incurred with respect to the Mortgage Loans, including a
description of any Expense Losses; (xii) the aggregate amount of Servicing
Advances and P&I Advances outstanding that have been made by the Master
Servicer, the Trustee and the Fiscal Agent, separately stated; and (xiii) the
amount of any Appraisal Reductions effected during the related Collection Period
on a loan-by-loan basis and the total Appraisal Reductions in effect as of such
Distribution Date. In the case of information furnished pursuant to subclauses
(i), (ii) and (xi) above, the amounts shall be expressed in the aggregate and as
a dollar amount per $1,000 of original principal amount of the Certificates for
all Certificates of each applicable Class.
"MORTGAGE" means the mortgage, deed of trust or other
instrument securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of LaSalle Bank National Association,
as Trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1, without recourse, representation or warranty"
or if the original Mortgage Note is not included therein, then a lost note
affidavit with a copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording
thereon, and, if the Mortgage was executed pursuant to a power of attorney, a
certified true copy of the power of attorney certified by the public recorder's
office, with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed) or certified by a
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title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 30th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Depositor shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (A) in the case of a delay caused
by the public recording office, an Officer's Certificate of the applicable
Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (B) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term
or other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon, or if such original modification,
consolidation and extension agreements have been delivered to the appropriate
recording office for recordation and either have not yet been returned with
evidence of recordation thereon or have been lost after recordation, true copies
of such modifications, consolidations and extensions certified by the applicable
Seller together with (A) in the case of a delay caused by the public recording
office, an Officer's Certificate of the applicable Seller stating that such
original modification, consolidation or extension agreement has been dispatched
or sent to the appropriate public recording official for recordation or (B) in
the case of an original modification, consolidation or extension agreement that
has been lost after recordation, a certification by the appropriate county
recording office where such document is recorded that such copy is a true and
complete copy of the original recorded modification, consolidation or extension
agreement, and the originals of all assumption agreements, if any, each signed
by the holder of record in favor of "LaSalle Bank National Association, as
Trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1;"
(iv) an original Assignment of Mortgage for each Mortgage
Loan, in form and substance acceptable for recording, signed by the holder of
record in favor of "LaSalle Bank National Association, as Trustee for Morgan
Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-LIFE1;"
(v) originals of all intervening assignments of Mortgage, if
any, with evidence of recording thereon or, if such original assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such assignments of Mortgage certified by
the applicable Seller, or in the case of an original blanket intervening
assignment of Mortgage retained by the applicable Seller, a copy thereof
certified by the applicable Seller or, if any original intervening assignment of
Mortgage has not yet been returned from the applicable recording office or has
been lost, a true and correct copy thereof, together with (A) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
applicable Seller stating that such original intervening assignment of Mortgage
has been sent to the appropriate public recording official for recordation or
(B) in the case of an original intervening assignment of Mortgage that has been
lost after recordation, a certification by the appropriate county recording
office where such assignment is recorded that such copy is a true and complete
copy of the original recorded intervening assignment of Mortgage;
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(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such Assignment of Leases
certified by the applicable Seller to be a true and complete copy of the
original Assignment of Leases submitted for recording, together with (A) an
original of each assignment of such Assignment of Leases with evidence of
recording thereon and showing a complete recorded chain of assignment from the
named assignee to the holder of record, and if any such assignment of such
Assignment of Leases has not been returned from the applicable public recording
office, a copy of such assignment certified by the applicable Seller to be a
true and complete copy of the original assignment submitted for recording, and
(B) an original assignment of such Assignment of Leases, in recordable form,
signed by the holder of record in favor of "LaSalle Bank National Association,
as Trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1," which assignment may be effected in the
related Assignment of Mortgage;
(vii) the original of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event
such original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) UCC financing statements (together with all assignments
thereof to the Trustee) executed and delivered in connection with any Mortgage
Loan;
(x) copies of ground leases, if any, related to any Mortgage
Loan where the Mortgagor is the lessee under such lease and there is a lien in
favor of the mortgagee in such lease;
(xi) copies of any lock-box agreements and intercreditor
agreements, if any, related to any Mortgage Loan; and
(xii) a copy of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan, together with the original
supporting documentation evidencing a beneficial transfer, in favor of "LaSalle
Bank National Association, as trustee for Morgan Stanley Capital I Inc.,
Commercial Pass-Through Certificates, Series 1999-LIFE1"; provided, however, the
Trustee shall hold such letter of credit only in a custodial capacity and shall
have no obligation to maintain, extend the term of, enforce, or otherwise
preserve any rights under such letter of credit; the original of each letter of
credit referred to in this clause (xii) shall be delivered to the Primary
Servicer of the related Mortgage Loan within forty-five (45) days of the Closing
Date;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian on its behalf, such terms shall
not be deemed to include such documents required to be included therein unless
they are actually so received.
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"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage,
and all amendments and modifications thereof, identified on the Mortgage Loan
Schedule, as amended from time to time, and conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.1 or Section
2.3, and Mortgage Loan shall also include any Defeasance Loan.
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan
Purchase Agreement I, Mortgage Loan Purchase Agreement II or Mortgage Loan
Purchase Agreement III, as the case may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain
Mortgage Loan Purchase Agreement between JHREF and the Depositor dated as of
July 28, 1999 with respect to the JHREF Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain
Mortgage Loan Purchase Agreement between MSMC and the Depositor dated as of July
28, 1999 with respect to the MSMC Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT III" means that certain
Mortgage Loan Purchase Agreement between Principal and the Depositor dated as of
July 28, 1999 with respect to the Principal Loans.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means
collectively the schedule attached hereto as Schedule I, which identifies each
JHREF Loan, Schedule II, which identifies each MSMC Loan, and the schedule
attached hereto as Schedule III, which identifies each Principal Loan, as such
schedules may be amended from time to time pursuant to Section 2.3.
"MORTGAGE NOTE" means the note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan, the per
annum rate at which interest accrues on such Mortgage Loan.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any
date of determination, the holder of the related Mortgage Note as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"MSMC" has the meaning assigned in the Preliminary Statement
hereto.
"MSMC LOANS" means, collectively, those Mortgage Loans sold
to the Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
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"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, (i) with respect to all Mortgage Loans which are not
Specially Serviced Mortgage Loans, the excess, if any, of aggregate Prepayment
Interest Shortfalls for such Mortgage Loans over the sum of (A) the Master
Servicing Fee for the related Collection Period calculated in respect of all
such Mortgage Loans and (B) the aggregate Prepayment Interest Excesses for such
Collection Period for all Mortgage Loans which are not Specially Serviced
Mortgage Loans, and (ii) with respect to all Specially Serviced Mortgage Loans
on which there have been voluntary Principal Prepayments (not from Liquidation
Proceeds or from modifications to Specially Serviced Mortgage Loans), the
excess, if any, of aggregate Prepayment Interest Shortfalls for such Mortgage
Loans over the sum of (A) the Special Servicing Fee for the related Collection
Period calculated in respect of all Specially Serviced Mortgage Loans (including
REO Mortgage Loans) and (B) the aggregate Prepayment Interest Excesses for such
Collection Period for all Specially Serviced Mortgage Loans (including REO
Mortgage Loans).
"NEW LEASE" means any lease of any REO Property entered into
on behalf of the Trust, including any lease renewed or extended on behalf of the
Trust if the Trust has the right to renegotiate the terms of such lease.
"NEW YORK PRESENTING OFFICE" means an office, if any, of an
agent of the Trustee or the Certificate Registrar, as the Trustee or the
Certificate Registrar may designate from time to time by written notice to the
Depositor and the Certificateholders.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as
amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of
Counsel to the effect that a contemplated action will neither cause any REMIC
Pool to fail to qualify as a REMIC at any time that any Certificates are
outstanding nor cause a "prohibited transaction," "prohibited contribution" or
any other tax to be imposed on any REMIC Pool or the Trust.
"NONRECOVERABLE ADVANCE" means the portion of any Advance
(including interest accrued thereon at the Advance Rate) previously made or
proposed to be made by the Master Servicer, the Trustee or the Fiscal Agent
that, in its sole discretion, exercised in good faith and, with respect to the
Master Servicer, in accordance with the Servicing Standard, that will not or, in
the case of a current delinquency, would not be, ultimately recoverable, from
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, Purchase
Proceeds or from any collections with respect to the related Mortgage Loan or
REO Property, as evidenced by an Officer's Certificate delivered pursuant to
Section 4.4. Such Officer's Certificate shall be delivered to the Trustee (upon
which the Trustee may conclusively rely) or to the Depositor (if the Trustee or
the Fiscal Agent is delivering such Officer's Certificate) and (in either case)
to the Special Servicer and the Trustee in the time periods as specified in
Section 4.4 and shall include the information and reports set forth in Section
4.4. In determining whether an Advance with respect to any Mortgage Loan will be
recoverable, the Master Servicer, the Trustee or the Fiscal Agent, as
applicable, shall take into account amounts that may be realized on the related
Mortgaged Property in its "as is" or then current condition and occupancy.
Absent bad faith, the Master Servicer's determination as to the recoverability
of any Advance shall be conclusive and
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binding on the Certificateholders and may, in all cases, be relied on by the
Trustee and the Fiscal Agent.
"NON-REGISTERED CERTIFICATE" means unless and until
registered under the Securities Act, any Class X, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P or Residual
Certificate.
"NOTIONAL AMOUNT" means, as of any date of determination: (i)
with respect to all of the Class X Certificates as a Class, the Class X Notional
Amount as of such date of determination; and (ii) with respect to any Class X
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X Notional Amount as of such date of determination.
"OFFICER'S CERTIFICATE" means (w) in the case of the
Depositor, a certificate signed by one or more of the Chairman of the Board, any
Vice Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (x) in
the case of the Master Servicer and the Special Servicer, any of the officers
referred to above or an employee thereof designated as a Servicing Officer or
Special Servicing Officer pursuant to this Agreement, (y) in the case of the
Trustee or the Fiscal Agent, a certificate signed by a Responsible Officer, and
(z) in the case of a Seller, a certificate signed by one or more of the Chairman
of the Board, any Vice Chairman, the President, or any Senior Vice President,
Vice President or Assistant Vice President.
"OPERATING ADVISER" shall have the meaning specified in
Section 9.37(a).
"OPINION OF COUNSEL" means a written opinion of counsel
addressed to the Trustee, reasonably acceptable in form and substance to the
Trustee, and who is not in-house counsel to the party required to deliver such
opinion but who, in the good faith judgment of the Trustee, is Independent
outside counsel knowledgeable of the issues occurring in the practice of
securitization with respect to any such opinion of counsel concerning the
taxation, or status as a REMIC for tax purposes, of the Trust or any REMIC Pool.
"OWNERSHIP INTEREST" means, as to any Certificate, any
ownership or security interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"P&I ADVANCE" shall mean, (i) with respect to any Mortgage
Loan or Specially Serviced Mortgage Loan as to which all or a portion of the
Scheduled Payment (other than a Balloon Payment) due during the related
Collection Period was not received by the Master Servicer as of the related
Determination Date, the portion of such Scheduled Payment not received; (ii)
with respect to any Balloon Mortgage Loan (including any REO Property as to
which the related Mortgage Loan provided for a Balloon Payment) as to which a
Balloon Payment was due during or prior to the related Collection Period but was
delinquent, in whole or in part, as of the related Determination Date, an amount
equal to the excess, if any, of the Assumed Scheduled Payment for such Balloon
Mortgage Loan for the related Collection Period, over any Late Collections
received in respect of such Balloon Payment during such Collection
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Period; and (iii) with respect to each REO Property, an amount equal to the
excess, if any, of the Assumed Scheduled Payment for the Mortgage Loan related
to such REO Property during the related Collection Period, over remittances of
REO Income to the Master Servicer by the Special Servicer, reduced by any
amounts required to be paid as taxes on such REO Income (including taxes imposed
pursuant to Section 860G(c) of the Code); provided, however, that the interest
portion of any Scheduled Payment or Assumed Scheduled Payment shall be advanced
at a per annum rate equal to the sum of the REMIC I Net Mortgage Rate relating
to such Mortgage Loan or Mortgage Loan relating to such REO Property and the
Trustee Fee Rate, such that the Scheduled Payment or Assumed Scheduled Payment
to be advanced as a P&I Advance shall be net of the Master Servicing Fee, the
Excess Servicing Fee and the Primary Servicing Fees; and provided, further, that
the Scheduled Payment or Assumed Scheduled Payment for any Mortgage Loan which
has been modified shall be calculated based on its terms as modified and
provided, further, that the amount of any P&I Advance with respect to a Mortgage
Loan as to which there has been an Appraisal Reduction will be an amount equal
to the product of (i) the amount required to be advanced without giving effect
to this proviso and (ii) a fraction, the numerator of which is the Principal
Balance of such Mortgage Loan as of the immediately preceding Determination Date
less any Appraisal Reduction and the denominator of which is the Principal
Balance of the Mortgage Loan as of such Determination Date. All P&I Advances for
any Mortgage Loans that have been modified shall be calculated on the basis of
their terms as modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan
or REO Property, the amount of the P&I Advance for each Mortgage Loan computed
for any Distribution Date.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with
respect to any Class of REMIC I Regular Interests, REMIC II Regular Interests or
REMIC Regular Certificates, other than the X Certificates, for the first
Distribution Date, the rate set forth in the Preliminary Statement hereto. For
any Distribution Date occurring thereafter, the Pass-Through Rates for (i) the
REMIC I Regular Interests shall equal the REMIC I Net Mortgage Rate on the
related Mortgage Loan for such Distribution Date, (ii) the REMIC II Regular
Interests shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (iii) with respect to the Class A-1, Class A-2, Class H,
Class J, Class K, Class L, Class M, Class N, Class O and Class P Certificates,
the lesser of (A) the fixed rate corresponding to such Class set forth in the
Preliminary Statement hereto and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (iv) the Class X Certificates, the per annum
rate equal to the quotient of the Accrued Certificate Interest thereon for such
Distribution Date and the Class X Notional Amount, and (v) the Class B, Class C,
Class D, Class E, Class F and Class G Certificates, the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date.
"PERCENTAGE INTEREST" means with respect to each Class of
Certificates other than the Residual Certificates, the fraction of such Class
evidenced by such Certificate, expressed as a percentage (carried to four
decimal places and rounded, if necessary), the numerator of which is the
Certificate Balance or Notional Amount, as applicable, represented by such
Certificate determined as of the Closing Date (as stated on the face of such
Certificate) and the denominator of which is the Aggregate Certificate Balance
or Notional Amount, as applicable, of all of the Certificates of such Class
determined as of the Closing Date. With respect to each Residual
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Certificate, the percentage interest in distributions (if any) to be made with
respect to the relevant Class, as stated on the face of such Certificate.
"PERMITTED TRANSFEREE" means any Transferee other than a
Disqualified Organization.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PLACEMENT AGENT" means Morgan Stanley & Co. Incorporated.
"PHASE I ENVIRONMENTAL REPORT" means a report by an
Independent Person who regularly conducts environmental site assessments in
accordance with then current standards imposed by institutional commercial
mortgage lenders and who has a reasonable amount of experience conducting such
assessments.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor
regulations set forth in 29 C.F.R. ss. 2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth
in the Preliminary Statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date
and the related Collection Period, during which a full or partial Principal
Prepayment is made after the Due Date for such Mortgage Loan through and
including the last day of the Collection Period, the amount of interest that
accrues on the Mortgage Loan from such Due Date to the date such payment was
made (net of the Master Servicing Fee, the Primary Servicing Fees, the Excess
Servicing Fees, the Special Servicing Fee and the Trustee Fee), to the extent
collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including early payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) made during any Collection Period
prior to the Due Date for such Mortgage Loan in such Collection Period. The
amount of any Prepayment Interest Shortfall shall equal the excess of (A) the
aggregate amount of interest which would have accrued on the Scheduled Principal
Balance of such Mortgage Loan for the 30 days ending on such Due Date if such
Principal Prepayment or Balloon Payment had not been made (net of the Master
Servicing Fee, the Primary Servicing Fees, the Excess Servicing Fees, the
Special Servicing Fee and the Trustee Fee) over (B) the aggregate interest that
did so accrue through the date such payment was made.
"PREPAYMENT PREMIUM" means with respect to any Distribution
Date, the aggregate of all prepayment premiums, yield maintenance payments or
percentage premiums, if any, received during the related Collection Period in
connection with Principal Prepayments.
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"PRIMARY SERVICERS" means each of Principal Capital
Management, LLC and JHREF.
"PRIMARY SERVICING AGREEMENT" means, with respect to each
Primary Servicer, the agreement between such Primary Servicer and the Master
Servicer, dated as of August 1, 1999, a form of which is attached hereto as
Exhibit G, under which such Primary Servicer services the Mortgage Loans set
forth on the schedule attached thereto.
"PRIMARY SERVICING FEE" means with respect to each Mortgage
Loan, the monthly fee payable to the applicable Primary Servicer based on the
per annum rate specified on the Mortgage Loan Schedule, as more specifically
described in the applicable Primary Servicing Agreement, and determined in the
same manner as the Mortgage Rate is determined (the "Primary Servicing Fee
Rate").
"PRINCIPAL" has the meaning assigned in the Preliminary
Statement hereto.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan
or REO Mortgage Loan, for purposes of performing calculations with respect to
any Distribution Date, the principal balance of such Mortgage Loan or the
related REO Mortgage Loan outstanding as of the Cut-Off Date after taking into
account all principal and interest payments made or due prior to the Cut-Off
Date, reduced (to not less than zero) by (i) any payments or other collections
of amounts allocable to principal on such Mortgage Loan that have been collected
or received during any preceding Collection Period, other than any Scheduled
Payments due in any subsequent Collection Period, and (ii) the principal portion
of any Realized Loss incurred in respect of such Mortgage Loan during any
related Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the
Class A-1, Class A-2, Class 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 and Class P
Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution
Date, the sum of the following amounts: (i) the principal portion of all
Scheduled Payments (other than the principal portion of Balloon Payments) and
any Assumed Scheduled Payments due or deemed due, as the case may be, in respect
of the Mortgage Loans and any REO Mortgage Loans for their respective Due Dates
occurring during the related Collection Period; (ii) all payments (including
Principal Prepayments and the principal portion of Balloon Payments) and any
other collections (including Liquidation Proceeds (other than the portion
thereof, if any, constituting Excess Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received on or
in respect of the Mortgage Loans during the related Collection Period and that
were identified and applied by the Master Servicer as recoveries of principal
thereof, in each case net of any portion of such payment or other collection
that represents a recovery of the principal portion of any Scheduled Payment
(other than a Balloon Payment) due, or of the principal portion of any Assumed
Scheduled Payment deemed due, in respect of the related Mortgage Loan on a Due
Date during or prior to the related Collection Period and not previously
recovered.
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"PRINCIPAL LOANS" means, collectively those Mortgage Loans
sold to the Depositor pursuant to Mortgage Loan Purchase Agreement III and shown
on Schedule III hereto.
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary
payment or collection of principal on a Mortgage Loan which is received or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in advance of its scheduled Due Date,
including, without limitation, all proceeds, to the extent allocable to
principal, received from the payment of cash in connection with a substitution
shortfall pursuant to Section 2.3; provided, that the pledge by a Mortgagor of
Defeasance Collateral with respect to a Defeasance Loan shall not be deemed to
be a Principal Prepayment.
"PRIVATE PLACEMENT MEMORANDUM" has the meaning set forth in
the Preliminary Statement hereto.
"PROSPECTUS" has the meaning set forth in the Preliminary
Statement hereto.
"PURCHASE PRICE" means, with respect to the repurchase of a
Mortgage Loan or REO Property pursuant to Article II of this Agreement or the
purchase of a Mortgage Loan pursuant to Section 9.36, a price equal to the sum
of (A) 100% of the unpaid principal balance of such Mortgage Loan (or deemed
principal balance, in the case of an REO Property), plus (B) accrued but unpaid
interest thereon calculated at the Mortgage Rate to, but not including, the Due
Date in the Collection Period in which such purchase occurs, plus (C) the amount
of any expenses related to such Mortgage Loan or REO Property (including any
Servicing Advances, Advance Interest related to such Mortgage Loan and any
Special Servicing Fees and Liquidation Fees) that are reimbursable to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent.
"PURCHASE PROCEEDS" means any cash amounts received by the
Master Servicer in connection with: (i) the repurchase of a Mortgage Loan by a
Seller pursuant to Section 2.3 or (ii) the purchase of the Mortgage Loans and
REO Properties by the Depositor, the Master Servicer, the Special Servicer or
the holders of the Class R-I Certificates pursuant to Section 10.1(b).
"QUALIFIED BIDDER" means (A) as used in section 8.29(c), a
Person qualified to act as successor Master Servicer hereunder pursuant to
Section 8.22(b) (including the requirement set forth in Section 8.22(b) that
Rating Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person) and (B) as used in Section 9.31(c), any Person qualified
to act as successor Special Servicer hereunder pursuant to Section 9.21(b)
(including the requirement set forth in Section 9.21(b) that Rating Agency
Confirmation shall have been obtained form each Rating Agency with respect to
such Person).
"QUALIFIED INSURER" means, (i) with respect to any Mortgage
Loan, an insurance company duly qualified as such under the laws of the state in
which the related Mortgaged Property is located, duly authorized and licensed in
such state to transact the applicable insurance business and to write the
insurance provided, and that has a claim paying ability rating no lower than two
ratings categories (without regard to pluses or minuses or numerical qualifiers)
lower than the highest rating of any outstanding Class of Certificates from time
to time, but in no event
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lower than "BBB" by Fitch (or rated B+:VI by A.M. Best), or if not so rated,
then Fitch has issued a Rating Agency Confirmation, and "BBB" by S&P if rated by
S&P or if not rated by S&P, then S&P has issued a Rating Agency Confirmation,
and (ii) with respect to the Servicer Errors and Omissions Insurance Policy or
Servicer Fidelity Bond an insurance company that has a claim paying ability no
lower than two ratings categories (without regard to pluses or minuses or
numerical qualifiers) lower than the highest rating of any outstanding Class of
Certificates from time to time, but in no event lower than "A" by Fitch if rated
by Fitch, or if not so rated, then rated A:IX by A.M. Best or Fitch has issued a
Rating Agency Confirmation, and "A" by S&P if rated by S&P or if not rated by
S&P, then S&P has issued a Rating Agency Confirmation, or (iii) in either case,
a company not satisfying clause (i) or (ii) but with respect to which Rating
Agency Confirmation is obtained.
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has a principal balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution, not
in excess of the principal balance of the Deleted Mortgage Loan; provided,
however, that, to the extent that the principal balance of such Mortgage Loan is
less than the principal balance of the Deleted Mortgage Loan, then such
differential in principal amount, together with interest thereon at the Mortgage
Rate on the related Mortgage Loan from the date as to which interest was last
paid through the last day of the month in which such substitution occurs, shall
be paid by the party effecting such substitution to the Master Servicer for
deposit into the Certificate Account, and shall be treated as a Principal
Prepayment hereunder; (ii) is accruing interest at a rate of interest at least
equal to that of the Deleted Mortgage Loan; (iii) has a remaining term to stated
maturity not greater than, and not more than two years less than, that of the
Deleted Mortgage Loan; (iv) has an original Loan-to-Value Ratio not higher than
that of the Deleted Mortgage Loan and a current Loan-to-Value Ratio (equal to
the principal balance on the date of substitution divided by its current
Appraised Value) not higher than the current Loan-to-Value Ratio of the Deleted
Mortgage Loan; (v) will comply with all of the representations and warranties
relating to Mortgage Loans set forth herein, as of the date of substitution;
(vi) has a Phase I Environmental Report relating to the related Mortgaged
Property in its Mortgage Files and such Phase I Environmental Report does not,
in the good faith reasonable judgment of the Special Servicer, consistent with
the Servicing Standard raise material issues that have not been adequately
addressed; and (vii) as to which the Trustee has received an Opinion of Counsel,
at the related Seller's expense, that such Mortgage Loan is a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code;
provided that no Mortgage Loan may have a Maturity Date after the date three
years prior to the Final Rated Distribution Date, and provided, further, that no
such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless
Rating Agency Confirmation is obtained. In the event that either one mortgage
loan is substituted for more than one Deleted Mortgage Loan or more than one
mortgage loan is substituted for one or more Deleted Mortgage Loans, then (A)
the principal balance referred to in clause (i) above shall be determined on the
basis of aggregate principal balances and (B) the rates referred to in clauses
(ii) above and the remaining term to stated maturity referred to in clause (iii)
above shall be determined on a weighted average basis. Whenever a Qualifying
Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to
this Agreement, the party effecting such substitution shall certify that such
Mortgage Loan meets all of the requirements of this definition and shall send
such certification to the
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Trustee, which shall deliver a copy of such certification to the Special
Servicer promptly, and in any event within five Business Days following the
Trustee's receipt of such certification.
"RATING AGENCIES" means Fitch and S&P.
"RATING AGENCY CONFIRMATION" means, with respect to any
matter, confirmation in writing by each Rating Agency (or such Rating Agency as
is specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency.
"REALIZED INTEREST LOSS" means (i) in the case of a
Liquidation Realized Loss, the portion of any Liquidation Realized Loss that
exceeds the Realized Principal Loss on the related Mortgage Loan, (ii) in the
case of a Bankruptcy Loss, the portion of such Realized Loss attributable to
accrued interest on the related Mortgage Loan, (iii) in the case of an Expense
Loss, an Expense Loss resulting in any period from the payment of the Special
Servicing Fee and any Expense Losses set forth in the last sentence of the
definition of "Realized Principal Loss" or (iv) in the case of a Modification
Loss, a Modification Loss described in clause (ii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a
Modification Loss, a Bankruptcy Loss or an Expense Loss. Realized Losses on a
Mortgage Loan are allocated first to the principal balance of, and then to
interest on such Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means (i) in the case of a
Liquidation Realized Loss, the amount of such Realized Loss, to the extent that
it does not exceed the principal balance of the Mortgage Loan (or deemed
principal balance, in the case of REO Property), (ii) in the case of a
Modification Loss, the amount of such Modification Loss described in clause (i)
of the definition thereof, (iii) in the case of a Bankruptcy Loss, the portion
of such Realized Loss attributable to the reduction in the principal balance of
the related Mortgage Loan, and (iv) in the case of an Expense Loss, the portion
thereof not treated as a Realized Interest Loss. Notwithstanding clause (iv) of
the preceding sentence, to the extent that Expense Losses (exclusive of Expense
Losses resulting from payment of the Special Servicing Fee) exceed amounts with
respect to the Mortgage Loans that were identified as allocable to principal,
such excess shall be treated as a Realized Interest Loss.
"RECORD DATE" means, for each Distribution Date and each
Class of Certificates, the close of business on the last Business Day of the
month immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan or REO Property following the period
in which a Final Recovery Determination occurs plus other amounts defined as
"Recoveries" herein.
"REGISTERED CERTIFICATES" means, collectively, the Class A-1,
Class A-2, Class B, Class C, Class D and Class E Certificates.
"REGULATION S" means Regulation S under the 1933 Act.
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"REGULATION S CERTIFICATE" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S
Permanent Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with
respect to any Class of Certificates offered and sold outside of the United
States in reliance on Regulation S, a single temporary global Certificate, in
definitive, fully registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced
Mortgage Loan with respect to which (i) three consecutive Scheduled Payments
have been made (in the case of any such Mortgage Loan that was modified, based
on the modified terms) or a complete defeasance shall have occurred, (ii) no
other Servicing Transfer Event has occurred and is continuing (or with respect
to determining whether a Required Appraisal Loan is a Rehabilitated Mortgage
Loan for applying Appraisal Reductions, no other Appraisal Event has occurred
and is continuing) and (iii) the Trust has been reimbursed for all costs
incurred as a result of the occurrence of a Servicing Transfer Event or such
amounts have been forgiven.
"RELEASE DATE" means the date 40 days after the later of (i)
the commencement of the offering of the Certificates and (ii) the Closing Date.
"REMIC" means a real estate mortgage investment conduit
within the meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of
the Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and the Distribution Account, the Insurance Policies and any
REO Properties, for which a REMIC election has been made pursuant to Section
12.1(a) hereof.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular
Interests and the Class R-I Certificates.
"REMIC I NET MORTGAGE RATE" means, as to any REMIC I Regular
Interest, a rate per annum equal to the Mortgage Rate for the related Mortgage
Loan as of the Cut-Off Date (and without regard to any modification, waiver or
amendment of the terms thereof following the Cut-Off Date) calculated on a 360
day year consisting of twelve 30-day months regardless of the actual terms of
the related Mortgage Loan, minus the Administrative Cost Rate.
"REMIC I REGULAR INTERESTS" means, collectively, the
uncertificated interests designated as "regular interests" in REMIC I, which
shall consist of, with respect to each Mortgage Loan, (i) an interest having an
initial Certificate Balance equal to the Cut-Off Date
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Scheduled Principal Balance of such Mortgage Loan, and which has a Pass-Through
Rate equal to the REMIC I Net Mortgage Rate of such Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of
the REMIC I Regular Interests for which a REMIC election has been made pursuant
to Section 12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II
Regular Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class A-1 Certificates, and which has a Pass-Through Rate equal
to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to the aggregate
Certificates Balance of the Class A-2 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class B Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class C Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class D Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class E Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class F Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class G Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTEREST H" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class H Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class J Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class K Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class L Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class M Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST N" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class N Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST O" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class O Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST P" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class P Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC
II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest B, REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II
Regular Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G,
REMIC II Regular Interest H, REMIC II Regular Interest J, REMIC II Regular
Interest K and REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC
II Regular Interest N, REMIC II Regular Interest O and REMIC II Regular
Interest P.
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"REMIC III" means the segregated pool of assets consisting of
the REMIC II Regular Interests for which a REMIC election has been made pursuant
to Section 12.1(a) hereof.
"REMIC III CERTIFICATES" has the meaning set forth in the
final paragraph of the Preliminary Statement hereto.
"REMIC III REGULAR INTERESTS" means, collectively, the Class
A-1 Certificates, Class A-2 Certificates, Class X Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K and Class L Certificates, Class M Certificates, Class N
Certificates, Class O Certificates and Class P Certificates.
"REMIC POOL" means each of the three segregated pools of
assets designated as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income
tax law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations and rulings promulgated thereunder, as the foregoing
may be in effect from time to time and taking account, as appropriate, of any
proposed legislation which, as proposed, would have an effective date prior to
enactment thereof and any proposed regulations.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class
A, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O and Class P Certificates.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO
Property, income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section
9.14(a) hereof.
"REO DISPOSITION" means the receipt by the Master Servicer or
the Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"REO INCOME" means, with respect to any REO Property for any
Collection Period, all income received in connection with such REO Property
during such period less any operating expenses, utilities, real estate taxes,
management fees, insurance premiums, expenses for maintenance and repairs and
any other capital expenses directly related to such REO Property paid during
such period.
"REO MORTGAGE LOAN" means a Mortgage Loan as to which the
related Mortgaged Property is an REO Property.
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"REO PROPERTY" means a Mortgaged Property acquired by the
Trust through foreclosure, deed-in-lieu of foreclosure, abandonment or
reclamation from bankruptcy in connection with a Defaulted Mortgage Loan or
otherwise treated as foreclosure property under the REMIC Provisions.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"REQUEST FOR RELEASE" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan as to which
an Appraisal Event has occurred. A Mortgage Loan will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"RESERVE ACCOUNT" shall mean the Reserve Account maintained
by the Trustee in accordance with the provisions of Section 5.3, which shall be
an Eligible Account.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the
Class R-I Certificates, with respect to REMIC II, the Class R-II Certificates
and with respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the
initial Trustee or the Fiscal Agent, any officer assigned to the Asset-Backed
Securities Trust Services Group with specific responsibilities for the matters
contemplated by this Agreement and when used with respect to any successor
Trustee or Fiscal Agent, any Vice President, Assistant Vice President, corporate
trust officer or any assistant corporate trust officer.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class P,
Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F,
Class E, Class D, Class C, Class B and Class A Certificates.
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any
Class of Certificates offered and sold in reliance on Rule 144A or to certain
institutional "accredited investors" within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D of the 1933 Act, a single, permanent global
Certificate, in definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc.
"SCHEDULED PAYMENT" means each scheduled payment of principal
of, and interest on, a Mortgage Loan required to be paid on its Due Date by the
Mortgagor in accordance with the terms of the related Mortgage Note (excluding
all amounts of principal and interest which were due on or before the Cut-Off
Date, whenever received, and taking account of any modifications thereof and the
effects of any Debt Service Reduction Amounts and Deficient Valuation Amounts).
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"SCHEDULED PRINCIPAL BALANCE" means, with respect to any
Mortgage Loan or REO Mortgage Loan, for purposes of performing calculations with
respect to any Distribution Date, the Principal Balance thereof minus the
aggregate amount of any P&I Advances of principal previously made with respect
to such Mortgage Loan or REO Mortgage Loan.
"SELLER" means JHREF, MSMC or Principal, as the case may be.
"SENIOR CERTIFICATES" means the Class A and Class X
Certificates.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS
AND OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent, as the case may be, in accordance with Section 8.2, Section 9.2
and Section 7.17, respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or
insurance policy under which the insurer agrees to indemnify the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as the case may
be, (subject to standard exclusions) for all losses (less any deductible)
sustained as a result of any theft, embezzlement, fraud or other dishonest act
on the part of the Master Servicer's, Special Servicer's, the Trustee's or the
Fiscal Agent's, as the case may be, directors, officers or employees and is
maintained in accordance with Section 8.2, Section 9.2 and Section 7.17,
respectively.
"SERVICER MORTGAGE FILE" means copies of the mortgage
documents listed in the definition of Mortgage File relating to a Mortgage Loan
and the other documents referenced in Section 2.1(d).
"SERVICING ADVANCE" means any cost or expense of the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, designated as a
Servicing Advance pursuant to this Agreement and any other costs and expenses
incurred by the Master Servicer, the Trustee or the Fiscal Agent, as the case
may be, to protect and preserve the security for such Mortgage Loan.
"SERVICING OFFICER" means any officer or employee of the
Master Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans whose name and specimen signature appear on a
list of servicing officers or employees furnished to the Trustee by the Master
Servicer and signed by an officer of the Master Servicer, as such list may from
time to time be amended.
"SERVICING STANDARD" means, with respect to the Master
Servicer and the Special Servicer the higher of the following standards of care:
(a) in the same manner in which and with the same care,
skill, prudence and diligence with which the Master Servicer or the Special
Servicer, as the case may be, services and administers similar mortgage loans
for other third-party portfolios, giving due consideration to customary and
usual standards of practice of prudent institutional commercial mortgage lenders
servicing their own mortgage loans and to the maximization of the net present
value of the mortgage loans; or
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(b) the care, skill, prudence and diligence the Master
Servicer or the Special Servicer, as the case may be, uses for loans which it
owns and which are substantially the same as the Mortgage Loans, giving due
consideration to the maximization of the net present value of the mortgage
loans;
but without regard to: (I) any other relationship that the Master Servicer, the
Special Servicer, the Primary Servicers, the Depositor or the Trustee, or any
Affiliate of any of them may have with the related Mortgagor or any Affiliate of
the Mortgagor; (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 and Servicing Advances as specified
herein or to incur servicing expenses; (IV) the Master Servicer's, the Special
Servicer's or the Primary Servicers' 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 the Primary Servicers of any other mortgage loans or
property; (VI) any obligation of the Master Servicer to pay any indemnity with
respect to any repurchase obligation; or (VII) the ownership of any Junior
Indebtedness by the Master Servicer or Special Servicer or any Affiliate with
respect to the Mortgaged Property securing any Mortgage Loan.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) any Mortgage Loan as to which a Balloon Payment is past
due, and the Master Servicer has determined, in its good faith reasonable
judgment in accordance with the Servicing Standard, that payment is unlikely to
be made on or before the 60th day succeeding the date the Balloon Payment was
due, or any other payment is more than 60 days past due or has not been made on
or before the second Due Date following the due date such payment was due; (ii)
any Mortgage Loan as to which, to the Master Servicer's knowledge, the Mortgagor
has consented to the appointment of a receiver or conservator in any insolvency
or similar proceeding of, or relating to, such Mortgagor or to all or
substantially all of its property, or the Mortgagor has become the subject of a
decree or order issued under a bankruptcy, insolvency or similar law and such
decree or order shall have remained undischarged or unstayed for a period of 60
days; (iii) any Mortgage Loan as to which the Master Servicer shall have
received notice of the foreclosure or proposed foreclosure of any other lien on
the Mortgaged Property; (iv) any Mortgage Loan as to which the Master Servicer
has knowledge of a default (other than a failure by the related Mortgagor to pay
principal or interest) which in the good faith reasonable judgment of the Master
Servicer materially and adversely affects the interests of the
Certificateholders and which has occurred and remains unremedied for the
applicable grace period specified in such Mortgage Loan (or, if no grace period
is specified, 60 days); (v) any Mortgage Loan as to which the Mortgagor admits
in writing its inability to pay its debts generally as they become due, files a
petition to take advantage of any applicable insolvency or reorganization
statute, makes an assignment for the benefit of its creditors or voluntarily
suspends payment of its obligations; and (vi) any Mortgage Loan as to which, in
the good faith reasonable judgment of the Master Servicer, (a) a payment default
is imminent or is likely to occur within 60 days, or (b) any other default is
imminent or is likely to occur within 60 days and such default, in the judgment
of the Master Servicer, is reasonably likely to materially and adversely affect
the interests of the Certificateholders.
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"SINGLE-PURPOSE ENTITY" means a Person, other than an
individual, whose organizational documents provide that it is formed solely for
the purpose of owning and operating Defeasance Collateral for the benefit of the
Trust and which (i) does not engage in any business unrelated thereto and the
financing thereof; (ii) does not have any assets other than those related to its
interest in Defeasance Collateral; (iii) maintains its own books, records and
accounts, in each case which are separate and apart from the books, records and
accounts of any other Person; (iv) conducts business in its own name and uses
separate stationery, invoices and checks; (v) does not guarantee or assume the
debts or obligations of any other Person; (vi) does not commingle its assets or
funds with those of any other Person; (vii) transacts business with affiliates
on an arm's length basis pursuant to written agreements; and (viii) holds itself
out as being a legal entity, separate and apart from any other Person, and
otherwise complies with the single-purpose requirements established by the
Rating Agencies. The entity's organizational documents also provide that any
dissolution and winding up or insolvency filing for such entity requires the
unanimous consent of all partners or members, as applicable, and that such
documents may not be amended with respect to the Single-Purpose Entity
requirements.
"SPECIAL SERVICER" means Wells Fargo Bank, National
Association or any successor Special Servicer as herein provided.
"SPECIAL SERVICER COMPENSATION" means, with respect to any
applicable period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out Fees and any other amounts to be paid to the Special Servicer
pursuant to the terms of this Agreement.
"SPECIAL SERVICER MONTHLY REPORTS" mean the reports
substantially in the form of Exhibit O attached hereto.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day
preceding each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to
each Mortgage Loan which is a Specially Serviced Mortgage Loan, the fraction or
portion of the Special Servicing Fee Rate applicable to such month (determined
using the same interest accrual methodology that is applied with respect to the
Mortgage Rate for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of such Specially Serviced Mortgage Loan immediately before
the Due Date occurring in such month, subject to reduction in respect of
Compensating Interest as set forth in Section 9.11.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of
the Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee and the Master Servicer by the Special Servicer signed by an officer of
the Special Servicer, as such list may from time to time be amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan with respect to which the Master Servicer has
notified the Special Servicer and the Trustee that a Servicing Transfer Event
has occurred (which notice shall be effective
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upon receipt) and the Special Servicer has received all information, documents
and records relating to such Mortgage Loan as reasonably requested by the
Special Servicer to enable it to assume its duties with respect to such Mortgage
Loan. A Specially Serviced Mortgage Loan shall cease to be a Specially Serviced
Mortgage Loan from and after the date on which the Special Servicer notifies the
Master Servicer and the Trustee, in accordance with Section 8.1(b), that such
Mortgage Loan has become a Rehabilitated Mortgage Loan with respect to such
Servicing Transfer Event, unless and until the Master Servicer notifies the
Special Servicer and the Trustee, in accordance with Section 8.1(b) that another
Servicing Transfer Event with respect to such Mortgage Loan exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"SUB-SERVICER" has the meaning set forth in Section 8.4.
"SUBORDINATE CERTIFICATES" means, collectively, the Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates.
"SUCCESSFUL BIDDER" has the meaning set forth in Section
8.29(d) or Section 9.31(d), as applicable.
"TAX MATTERS PERSON" means the person designated as the "tax
matters person" of the REMIC Pool pursuant to Treasury Regulation Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" has the meaning set forth in
Section 10.1(b) herein.
"TITLE INSURANCE POLICY" means a title insurance policy
maintained with respect to a Mortgage Loan issued on the date of origination of
the related Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale,
pledge, hypothecation, or other form of assignment of any Ownership Interest in
a Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer
any Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer
any Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement,
the assets which consist of all the assets of REMIC I (including the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account, the Distribution Account, the Insurance Policies, any REO Properties
and other items referred to in Section 2.1(a) hereof), REMIC II and REMIC III.
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"TRUSTEE" means LaSalle Bank National Association, as
trustee, or its successor-in-interest, or if any successor trustee, or any
co-trustee shall be appointed as herein provided, then "Trustee" shall also mean
such successor trustee (subject to Section 7.7 hereof) and such co-trustee
(subject to Section 7.9 hereof), as the case may be.
"TRUSTEE FEE" means for each calendar month, as to each
Mortgage Loan (including REO Mortgage Loans and Defeasance Loans), the portion
of the Trustee Fee Rate applicable to such month (determined using the same
interest accrual methodology that is applied with respect to the Mortgage Rate
for such Mortgage Loan for such month) multiplied by the Scheduled Principal
Balance of each Mortgage Loan immediately before the Due Date occurring in such
month.
"TRUSTEE FEE RATE" means 0.004% per annum.
"TRUSTEE MORTGAGE FILE" means the mortgage documents listed
in the definition of Mortgage File hereof pertaining to a particular Mortgage
Loan and any additional documents required to be added to the Mortgage File
pursuant to this Agreement; provided that whenever the term "Trustee Mortgage
File" is used to refer to documents actually received by the Trustee or a
Custodian on its behalf, such terms shall not be deemed to include such
documents required to be included therein unless they are actually so received.
"UNDERWRITER" means each of Morgan Stanley & Co. Incorporated
and Goldman, Sachs & Co. or their respective successors in interest.
"UNITED STATES PERSON" means (i) any natural person resident
in the United States, (ii) any partnership or corporation organized or
incorporated under the laws of the United States or any state thereof or the
District of Columbia, (iii) any estate of which an executor or administrator is
a U.S. Person (other than an estate governed by foreign law and of which at
least one executor or administrator is a non-U.S. Person who has sole or shared
investment discretion with respect to its assets), (iv) any trust of which any
trustee is a U.S. Person (other than a trust of which at least one trustee is a
non-U.S. Person and has sole or shared investment discretion with respect to its
assets), (v) any agency or branch of a foreign entity located in the United
States, (vi) any non-discretionary or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a U.S.
Person, (vii) any discretionary or similar account (other than an estate or
trust) held by a dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States (other than such an account held for
the benefit or account of a non-U.S. Person), (viii) any partnership or
corporation organized or incorporated under the laws of a foreign jurisdiction
and formed by a U.S. Person principally for the purpose of investing in
securities not registered under the 1933 Act (unless it is organized or
incorporated, and owned, by accredited investors within the meaning of Rule
501(A) under the 1933 Act who are not natural persons, estates or trusts);
provided, however, that the term "U.S. Person" shall not include (A) a branch or
agency of a U.S. Person that is located and operating outside the United States
for valid business purposes as a locally regulated branch or agency engaged in
the banking or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C) the international organizations set forth in
Section 902(o)(7) of
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Regulation S under the 1933 Act and any other similar international
organizations, and their agencies, affiliates and pension plans.
"UNPAID INTEREST" means, on any Distribution Date with
respect to any Class of Interests or Certificates (other than the Residual
Certificates), the portion of Distributable Certificate Interest for such Class
remaining unpaid as of the close of business on the preceding Distribution Date,
plus one month's interest thereon at the applicable Pass-Through Rate other than
unpaid interest relating to Net Aggregate Prepayment Interest Shortfalls.
"USAP" shall have the meaning set forth in Section 8.13.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with
respect to any Distribution Date, the weighted average of the REMIC I Net
Mortgage Rates for the REMIC I Regular Interests, weighted on the basis of their
respective Certificate Balances as of the close of business on the preceding
Distribution Date.
"WORK-OUT FEE" means a fee payable with respect to any
Rehabilitated Mortgage Loan, equal to the product of (x) 1.0% and (y) the amount
of each collection of interest (other than default interest) and principal
received on such Mortgage Loan for so long as it remains a Rehabilitated
Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS. (a)
Calculations required to be made by the Trustee pursuant to this Agreement with
respect to any Mortgage Loan shall be made based upon current information as to
the terms of the Mortgage Loans and reports of payments received from the Master
Servicer on such Mortgage Loans and payments to be made to the Trustee as
supplied to the Trustee by the Master Servicer. The Trustee shall not be
required to recompute, verify or recalculate the information supplied to it by
the Master Servicer and may conclusively rely upon such information in making
such calculations. If, however, a Responsible Officer of the Trustee has actual
knowledge of an error in the calculations, the Trustee shall inform the Master
Servicer of such error.
(b) Unless otherwise required by law or the applicable
Mortgage Loan documents, any amounts received in respect of a Mortgage Loan as
to which a default has occurred and is continuing shall be applied first to
overdue interest due with respect to such Mortgage Loan at the Mortgage Rate
thereof, next to current interest due with respect to such Mortgage Loan at the
Mortgage Rate thereof, next to the reduction of the principal balance of such
Mortgage Loan to zero if such Mortgage Loan has been accelerated and in respect
of any scheduled payments of principal then due to the extent that such Mortgage
Loan has not yet been accelerated, next to any default interest and other
amounts due on such Mortgage Loan and finally to Late Fees due with respect to
such Mortgage Loan.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued
interest on any Certificate shall be calculated based upon a 360-day year
consisting of twelve 30-day months and Pass-Through Rates shall be carried out
to eight decimal places, rounded if necessary. All dollar amounts calculated
hereunder shall be rounded to the nearest penny.
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SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and
a "related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
Section 1.1 shall have the respective meanings given to them under generally
accepted accounting principles or regulatory accounting principles, as
applicable.
(c) The words "hereof," "herein" and "hereunder," and words
of similar import, when used in this Agreement, shall refer to this agreement as
a whole and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition
ascribed to such term shall be equally applicable to both the singular and
plural forms of such term and to masculine, feminine and neuter genders of such
term.
(e) This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its counsel.
Each party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby assign to the Trustee, without recourse, for the
benefit of the Certificateholders all the right, title and interest of the
Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage
Loan Schedule, (ii) the Depositor's rights under each Mortgage Loan Purchase
Agreement that are permitted to be assigned to the Trustee pursuant to Section
14 thereof, (iii) the Initial Deposit and (iv) all other assets included or to
be included in REMIC I for the benefit of REMIC II and REMIC III. Such
assignment includes all interest and principal received or receivable on or with
respect to the Mortgage Loans and due after the Cut-Off Date. The transfer of
the Mortgage Loans and the related rights and property accomplished hereby is
absolute and is intended by the parties to constitute a sale. In connection with
the initial sale of the Certificates
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by the Depositor, the purchase price to be paid includes a portion attributable
to interest accruing on the Certificates from and after the Cut-Off Date.
(b) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Seller pursuant to the applicable Mortgage
Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the Trustee or a Custodian appointed thereby, on or
before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned,
endorsed to the Trustee as specified in clause (i) of the definition of
"Mortgage File." Each Seller is required, pursuant to the applicable Mortgage
Loan Purchase Agreement, to deliver to the Trustee the remaining documents
constituting the Mortgage File for each Mortgage Loan within the time period set
forth therein. None of the Trustee, the Fiscal Agent, any Custodian, the Master
Servicer or the Special Servicer shall be liable for any failure by any Seller
or the Depositor to comply with the document delivery requirements of the
Mortgage Loan Purchase Agreements and this Section 2.1(b).
(c) The Master Servicer shall, at the expense of the
applicable Seller of the related Mortgage Loan, as to each Mortgage Loan,
promptly (and in any event within 45 days following the receipt thereof) cause
to be submitted for recording or filing, as the case may be, in the appropriate
public office for real property records or UCC financing statements, as
appropriate, each assignment to the Trustee referred to in clauses (iv), (vi)(B)
and (ix) of the definition of "Mortgage File". Each such assignment shall
reflect that it should be returned by the public recording office to the Trustee
following recording or filing; provided that in those instances where the public
recording office retains the original Assignment of Mortgage, assignment of
Assignment of Leases or assignment of UCC financing statements, the Master
Servicer shall obtain therefrom at the expense of the related Seller a certified
copy of the recorded original. The Master Servicer shall forward copies thereof
to the Trustee and the Special Servicer. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Master Servicer shall direct each Seller pursuant to the applicable
Mortgage Loan Purchase Agreement promptly to prepare or cause to be prepared a
substitute therefor or cure such defect, as the case may be, and thereafter the
Master Servicer shall upon receipt thereof cause the same to be duly recorded or
filed, as appropriate.
(d) All relevant servicing documents and records in the
possession of the Depositor or the Sellers that relate to the Mortgage Loans and
that are not required to be a part of a Mortgage File in accordance with the
definition thereof shall be delivered (subject to the requirements of the
Primary Servicing Agreements) to the Master Servicer on or before the Closing
Date and shall be held by the Master Servicer on behalf of the Trustee in trust
for the benefit of the Certificateholders. The Depositor shall deliver or cause
the related Seller to deliver to the Special Servicer a copy of each Mortgage
File to the extent that (i) such copy has not previously been delivered to the
Special Servicer and (ii) the Special Servicer requests (in writing) such copy
within 180 days following the Closing Date. The Depositor shall deliver or cause
the related Seller to deliver such copy within a reasonable period following
such request by the Special Servicer.
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(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Trustee on or before
the Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date, which
Mortgage Loan Purchase Agreements shall contain the representations and
warranties made by the Sellers with respect to each related Mortgage Loan as of
the Closing Date as are set forth on Exhibits R-1, R-2 and R-3 hereto.
(f) Concurrently herewith, the Depositor has acquired the
Principal Loans from Principal, the JHREF Loans from JHREF, and the MSMC Loans
from MSMC. The Depositor will deliver the original Mortgage Notes (or lost note
affidavits with a copies of the related Mortgage Notes, as described in the
definition of Mortgage File) relating to the Principal Loans to the Trustee,
endorsed as otherwise provided herein, to effect the transfer to the Trustee of
such Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. The Depositor will deliver the original Mortgage Notes (or lost note
affidavits with a copies of the related Mortgage Notes, as described in the
definition of Mortgage File) relating to the JHREF Loans to the Trustee,
endorsed as otherwise provided herein, to effect the transfer to the Trustee of
such Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. The Depositor will deliver the original Mortgage Notes (or lost note
affidavits with a copies of the related Mortgage Notes, as described in the
definition of Mortgage File) relating to the MSMC Loans to the Trustee, endorsed
as otherwise provided herein, to effect the transfer to the Trustee of such
Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. To avoid the unnecessary expense and administrative inconvenience
associated with the execution and recording of multiple assignment documents,
Principal, JHREF and MSMC, as applicable, are required under the Mortgage Loan
Purchase Agreements to deliver Assignments of Mortgages and assignments of
Assignments of Leases and assignments of UCC financing statements naming the
Trustee, on behalf of the Certificateholders, as assignee. Notwithstanding the
fact that the assignments shall name the Trustee, on behalf of the
Certificateholders, as the assignee, the parties hereto acknowledge and agree
that for all purposes the Principal Loans shall be deemed to have been
transferred from Principal to the Depositor, the JHREF Loans shall be deemed to
have been transferred from JHREF to the Depositor, and the MSMC Loans shall be
deemed to have been transferred from MSMC to the Depositor, and all Mortgage
Loans shall be deemed to have been transferred from the Depositor to the Trustee
on behalf of the Certificateholders.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee will hold (i)
the documents constituting a part of the Mortgage Files delivered to it, (ii)
the REMIC I Regular Interests and (iii) the REMIC II Regular Interests, in each
case, in trust for the use and benefit of all present and future
Certificateholders.
Upon the execution and delivery of this Agreement in respect
of the Initial Certification, and within 75 days after the execution and
delivery of this Agreement in respect of the Final Certification, the Trustee
shall examine the Mortgage Files in its possession, and shall deliver to the
Depositor, the Sellers, the Master Servicer and the Special Servicer a
certification (the "Initial Certification" and the "Final Certification",
respectively, in the respective forms set forth as Exhibit B-1 and Exhibit B-2
hereto) (i) in the case of the Initial Certification, as to each Mortgage Loan
listed in the Mortgage Loan Schedule, except as may be specified in the schedule
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of exceptions to Mortgage File delivery attached thereto, to the effect that:
(A) all documents pursuant to clause (i) of the definition of Mortgage File are
in its possession, (B) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, and (C) each Mortgage Note has
been endorsed as provided in clause (i) of the definition of Mortgage File, and
(ii) in the case of the Final Certification, as to each Mortgage Loan listed in
the Mortgage Loan Schedule, except as may be specified in the schedule of
exceptions to Mortgage File delivery attached thereto, to the effect that: (A)
all documents pursuant to clauses (i), (ii), (iv), (v) and (viii) of the
definition of Mortgage File required to be included in the Mortgage File, and
with respect to all documents specified in the other clauses of the definition
of Mortgage File to the extent known by a Responsible Officer of the Trustee to
be required pursuant to this Agreement, are in its possession, (B) such
documents have been reviewed by it and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (C) based on its examination and only as to the
Mortgage Note and Mortgage, the street address of the Mortgaged Property and the
name of the Mortgagor set forth in the Mortgage Loan Schedule respecting such
Mortgage Loan accurately reflects the information contained in the documents in
the Mortgage File, and (D) each Mortgage Note has been endorsed and each
Assignment of Mortgage has been delivered as provided in clause (i) and clause
(iv), respectively, of the definition of Mortgage File. Notwithstanding the
foregoing, the delivery of a commitment to issue a Title Insurance Policy in
lieu of the delivery of the actual Title Insurance Policy shall not be
considered a Document Defect with respect to any Mortgage File if such actual
Title Insurance Policy is delivered to the Trustee or a Custodian on its behalf
not later than the 180th day following the Closing Date. The Trustee shall
deliver to the Master Servicer, the Special Servicer and each Seller a copy of
such Final Certification. Within 360 days after the Cut-Off Date, the Trustee
shall provide a confirmation of receipt of recorded assignments of Mortgage to
the Master Servicer, the Special Servicer and each Seller, and if any recorded
assignment of Mortgage has not been received by the Trustee by such time, the
Trustee shall provide information in such confirmation on the status of missing
assignments. In giving the certifications required above, the Trustee shall be
under no obligation or duty to inspect, review or examine any such documents,
instruments, securities or other papers to determine whether they or the
signatures thereon are valid, legal, genuine, enforceable, in recordable form or
appropriate for their represented purposes, or that they are other than what
they purport to be on their face, or to determine whether any Mortgage File
should include any assumption agreement, modification agreement, consolidation
agreement, extension agreement, Assignment of Lease, ground lease, UCC financing
statement, guaranty, written assurance, substitution agreement, lock box
agreement, intercreditor agreement, management agreement or letter of credit.
If, in the course of such review, the Trustee finds any
document constituting a part of a Trustee Mortgage File which does not meet the
requirements of clauses (A) through (D) in the preceding paragraph, the Trustee
shall promptly notify the applicable Seller, the Master Servicer, the Special
Servicer, the Operating Advisor, and the Depositor in writing and the Master
Servicer shall, and the Special Servicer may, request such Seller to correct or
cure such defect in the manner and within the period or periods set forth in the
applicable Mortgage Loan Purchase Agreement and absent such correction or cure,
and, in the case of a defect which results from a failure to meet one or more
requirements of clauses (A) through (C) in the preceding paragraph, such defect
materially and adversely affects the value of the related Mortgage Loan or
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the interest of the Trustee in the related Mortgage Loan (in the good faith
judgment of the Master Servicer or the Trustee), or in any event in the case of
a defect under (D), the Master Servicer shall, and the Special Servicer may,
request the applicable Seller, at such Seller's election, to, and such Seller
shall be required promptly upon such request, either (i) substitute for the
related Mortgage Loan, without recourse, a Qualifying Substitute Mortgage Loan
or Loans, which substitution shall be accomplished in the manner and subject to
the conditions set forth in Section 2.3; or (ii) purchase such Mortgage Loan
from the Trust at the Purchase Price therefor in accordance with the related
Mortgage Loan Purchase Agreement. The Purchase Price for any such Mortgage Loan
shall be paid to the Master Servicer and deposited by the Master Servicer in the
Certificate Account. Upon receipt by the Trustee of written notification of
deposit of the Purchase Price or other amount required of the applicable Seller,
signed by a Servicing Officer of the Master Servicer (which notification shall
include a statement as to the accuracy of the calculation of the Purchase Price
or other required deposit), the Trustee shall release the related Trustee
Mortgage File to the applicable Seller and the Trustee and the Depositor shall
execute and deliver such instruments of transfer or assignment in the forms
presented to it, in each case without recourse, representation or warranty as
shall be necessary to vest in such Seller, or its designee, title (to the extent
that such title was transferred to the Depositor or the Trustee) to any Mortgage
Loan released pursuant hereto, including title to any property acquired in
respect of such Mortgage Loan or proceeds of any insurance policy with respect
thereto.
The Trustee or its authorized agents shall retain possession
and custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR
DOCUMENT DEFECTS AND BREACHES OF REPRESENTATIONS AND WARRANTIES.
(a) If any party hereto discovers that any document or
documents constituting a part of a Mortgage File has not been delivered as and
when required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgage
Properties as set forth in the related Mortgage Loan Purchase Agreements, and in
either case such defect (a "Document Defect") or breach (a "Breach") materially
and adversely affects the interests of the holders of the Certificates, such
party shall give prompt written notice to the other parties hereto and to each
Rating Agency. Promptly upon becoming aware of any such Document Defect or
Breach, the Master Servicer shall, and the Special Servicer may, request that
the related Seller, not later than 90 days from such Seller's receipt of the
notice of such Document Defect or Breach, cure such Document Defect or Breach,
as the case may be, in all material respects; provided, however, that if such
Document Defect or Breach, as the case may be, cannot be corrected or cured in
all material respects within such 90-day period, but the related Seller is
diligently attempting to effect such correction or cure, as certified by such
Seller in an Officer's Certificate delivered to the Trustee, then the cure
period will be extended for an additional 90 days.
If any such Document Defect or Breach cannot be corrected or
cured in all material respects within the above cure periods, the related Seller
will be obligated, not later than
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the last day of such permitted cure period, to (i) repurchase the affected
Mortgage Loan from the Trust at the applicable Purchase Price in accordance with
the related Mortgage Loan Purchase Agreement, or (ii) if within the three-month
period commencing on the Closing Date (or within the two-year period commencing
on the Closing Date if the related Mortgage Loan is a "defective obligation"
within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury
Regulation Section 1.860G-2(f)), at the related Seller's option, replace such
Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such Document
Defect or Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
the repurchase must occur within 90 days from the date the related Seller was
notified of the defect and substitution must occur within the sooner of (i) 90
days from the date the related Seller was notified of the defect or (ii) two
years from the Closing Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the
Master Servicer shall cause the related Seller to deliver to the Trustee for
such Qualifying Substitute Mortgage Loan or Loans, the Mortgage Note, the
Mortgage, the related assignment of the Mortgage, and such other documents and
agreements as are required by Section 2.1, with the Mortgage Note endorsed as
required by Section 2.1. No substitution may be made in any calendar month after
the Determination Date for such month. Monthly payments due with respect to
Qualifying Substitute Mortgage Loans in the month of substitution shall not be
part of the Trust and will be retained by Master Servicer and remitted by the
Master Servicer to the related Seller on the next succeeding Distribution Date.
For the month of substitution, distributions to Certificateholders will include
the Scheduled Payment due on the related Deleted Mortgage Loan for such month
and thereafter the related Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan and
the substitution of the Qualifying Substitute Mortgage Loan or Loans and upon
such amendment the Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee and the Special Servicer. Upon
such substitution, the Qualifying Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement in all respects. Upon receipt of the
Trustee Mortgage File pertaining to any Qualifying Substitute Mortgage Loans,
the Trustee shall release the Trustee Mortgage File relating to such Deleted
Mortgage Loan to the related Seller, and the Trustee (and the Depositor, if
necessary) shall execute and deliver such instruments of transfer or assignment
in the form presented to it, in each case without recourse, representation or
warranty, as shall be necessary to vest title (to the extent that such title was
transferred to the Trustee or the Depositor) in the related Seller or its
designee to any Deleted Mortgage Loan (including any property acquired in
respect thereof or any insurance policy proceeds relating thereto) substituted
for pursuant to this Section 2.3.
In any month in which the related Seller substitutes one or
more Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage
Loans, the Master Servicer will determine the amount (if any) by which the
aggregate principal balance of all such Qualified Substitute Mortgage Loans as
of the date of substitution is less than the aggregate principal balance of all
such Deleted Mortgage Loans (in each case after application of scheduled
principal portion of the monthly payments received in the month of
substitution). The Depositor shall
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cause the related Seller to deposit the amount of such shortage into the
Certificate Account in the month of substitution, without any reimbursement
thereof. In addition, the Depositor shall cause the related Seller to deposit
into the Certificate Account, together with such shortage, if any, an amount
equal to interest on the Deleted Mortgage Loans at a rate equal to the sum of
the applicable Mortgage Rate from the Due Date as to which interest was last
paid up to the Due Date next succeeding such substitution together with the
amount of unreimbursed Servicing Advances, amounts required to be paid to the
Special Servicer but remaining unpaid or unreimbursed, and interest on
unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance
Rate. The Depositor shall cause the related Seller, in the case of the Mortgage
Loans, to give notice in writing (accompanied by an Officer's Certificate as to
the calculation of such shortage) to the Trustee and the Master Servicer of such
event which notice shall be accompanied by an Officers' Certificate as to the
calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the
Master Servicer shall designate the Certificate Account as the account to which
funds in the amount of the Purchase Price are to be wired. Any such purchase of
a Mortgage Loan shall be on a whole loan, servicing released basis.
(b) In connection with any repurchase of or substitution for
a Mortgage Loan contemplated by this Section 2.3, the Trustee, the Master
Servicer and the Special Servicer shall each tender to the related Seller, upon
delivery to each of them of a receipt executed by such Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan possessed
by it, and each document that constitutes a part of the Mortgage File shall be
endorsed or assigned to the extent necessary or appropriate to the related
Seller or its designee in the same manner, and pursuant to appropriate forms of
assignment, substantially similar to the manner and forms pursuant to which
documents were previously assigned to the Trustee, but in any event, without
recourse, representation or warranty; provided that such tender by the Trustee
shall be conditioned upon its receipt from the Master Servicer of a Request for
Release. The Master Servicer shall, and is hereby authorized and empowered by
the Trustee to, prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so.
The Master Servicer shall, and is also hereby authorized and empowered by the
Trustee to, reconvey to the related Seller any deposits then held in an Escrow
Account relating to the Mortgage Loan being repurchased or substituted for. The
Master Servicer shall indemnify the Trustee for all costs, liabilities and
expenses (including attorneys' fees) incurred by the Trustee in connection with
any negligent or intentional misuse of any such powers of attorney by the Master
Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole
remedies available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach. The parties
hereunder understand that (i) Principal, as Seller under Mortgage Loan Purchase
Agreement III, will be providing the remedies with respect to the Principal
Loans, (ii) JHREF, as Seller under Mortgage Loan Purchase Agreement I, will be
providing the remedies with respect to the JHREF Loans, and (iii) MSMC, as
Seller under Mortgage Loan Purchase Agreement II, will be providing the remedies
with respect to the MSMC Loans.
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SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor
hereby represents and warrants to the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its property, to
carry on its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action on the
part of the Depositor; neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance with
the provisions hereof, will conflict with or result in a breach of, or
constitute a default under, (i) any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions contemplated hereby
do not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except such as has been
obtained, given, effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by
the Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to
the best of the Depositor's knowledge, threatened or likely to be asserted
against or affecting the Depositor, before or by any court, administrative
agency, arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any other
matter which in the judgment of the Depositor will be determined adversely to
the Depositor and will, if determined adversely to the Depositor, materially and
adversely affect it or its business, assets, operations or condition, financial
or otherwise, or adversely affect its ability to perform its obligations under
this Agreement; and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens
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arising under the federal tax laws or the Employee Retirement Income Security
Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Concurrently with the
execution and delivery of this Agreement, the Depositor does hereby transfer,
assign, set over, deposit with and otherwise convey to the Trustee, without
recourse, in trust, all the right, title and interest of the Depositor in and to
(i) the REMIC I Regular Interests in exchange for the REMIC II Interests and
(ii) the REMIC II Regular Interests in exchange for the REMIC III Certificates.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set
forth in Exhibits A-1 through A-20 hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable judgment of the Trustee or the
Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be determined
by the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Certificates will be issuable in
denominations of $25,000 initial Certificate Balance and in any whole dollar
denomination in excess thereof. The Class X, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O
and Class P Certificates will be issuable in denominations of $100,000 initial
Certificate Balance or initial Notional Amount (as applicable) or in any whole
dollar denomination in excess thereof. The Class R-I, Class R-II and Class R-III
Certificates will be issued in minimum Percentage Interests of 10% and integral
multiples of 10% in excess thereof.
(c) Each Certificate shall, on original issue, be
authenticated by the Authenticating Agent upon the order of the Depositor. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by an
authorized officer of the Authenticating Agent by manual signature, and such
certification upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication. At
any time and from time to time after the execution and delivery of this
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Agreement, the Depositor may deliver Certificates to the Authenticating Agent
for authentication and the Authenticating Agent shall authenticate and deliver
such Certificates as in this Agreement provided and not otherwise. In the event
that additional Certificates need to be prepared at any time subsequent to the
Closing Date, the Depositor shall prepare, or cause to be prepared, deliver, or
cause to be delivered, at the Depositor's expense, any such additional
Certificates. With respect to the Class A, Class X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O and Class P Certificates, on the Closing Date, the Authenticating Agent
upon the order of the Depositor shall authenticate Book-Entry Certificates that
are issued to a Clearing Agency or its nominee as provided in Section 3.7
against payment of the purchase price thereof.
SECTION 3.2 REGISTRATION. The Trustee shall be the initial
Certificate Registrar in respect of the Certificates and the Certificate
Registrar shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Certificate Registrar may resign
or be discharged or removed by the Trustee or the Certificateholders, and a new
successor may be appointed, in accordance with the procedures and requirements
set forth in Sections 7.6 and 7.7 hereof with respect to the resignation,
discharge or removal of the Trustee and the appointment of a successor Trustee.
The Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Trustee, any trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof
only upon presentation and surrender of such Certificate at the Corporate Trust
Office, duly endorsed or accompanied by a written instrument of transfer duly
executed by such Holder or such Holder's duly authorized attorney in such form
as shall be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for
any number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form
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as is satisfactory to the Certificate Registrar. Certificates delivered upon any
such exchange will evidence the same obligations, and will be entitled to the
same rights and privileges, as the Certificates surrendered. No service charge
shall be made to a Certificateholder for any exchange of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or one of its Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit D-1 hereto
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as Exhibit
D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer shall be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding such transfer from the Certificateholder desiring to effect
such transfer and/or such Certificateholder's prospective Transferee on which
such Opinion of Counsel is based (such Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such). If a transfer of any interest in a Non-Registered
Certificate that constitutes a Book-Entry Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a transfer of any interest in such
Non-Registered Certificate by the Depositor or any of its Affiliates), then the
Certificate Owner desiring to effect such transfer shall be required to obtain
either (i) a certificate from such Certificate Owner's prospective Transferee
substantially in the form attached as Exhibit D-3A hereto or as Exhibit D-3B
hereto, or (ii) an Opinion of Counsel to the effect that such transfer may be
made without registration under the Securities Act. None of the Depositor, the
Fiscal Agent, the Trustee, the Master Servicer, the Special Servicer or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
transfer of any Certificate. Any Certificateholder or Certificate Owner desiring
to effect a transfer of Non-Registered Certificates or interests therein shall,
and does hereby agree to, indemnify the Depositor, each Underwriter, the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer and the
Certificate Registrar against any liability that may result if the transfer is
not exempt from such registration or qualification or is not made in accordance
with such federal and state laws.
(d) No transfer of a Subordinate or Residual Certificate or
any interest therein shall be made (A) to any employee benefit plan or other
retirement arrangement, including
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individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or Section 4975 of the Code (each, a
"Plan"), or (B) to any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with "plan assets" of a Plan, unless: (i) in the case of a Subordinate
Certificate that constitutes a Book-Entry Certificate, the purchase and holding
of such Certificate or interest therein qualifies for the exemptive relief
available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a Subordinate
or Residual Certificate held as a Definitive Certificate, the prospective
Transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel which establish to the satisfaction of the Certificate
Registrar that such transfer will not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or
subject the Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer or the Certificate Registrar to any obligation in addition to
those undertaken in this Agreement. Each Person who acquires any Subordinate or
Residual Certificate or interest therein (unless it shall have acquired such
Certificate or interest therein from the Depositor or an Affiliate thereof or
unless it shall have delivered to the Certificate Registrar the certification of
facts and Opinion of Counsel referred to in clause (ii) of the preceding
sentence) shall be required to deliver to the Certificate Registrar (or, in the
case of an interest in a Subordinate Certificate that constitutes a Book-Entry
Certificate, to the Certificate Owner that is transferring such interest) a
certification to the effect that: (i) it is neither a Plan nor any Person who is
directly or indirectly purchasing such Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with "plan assets" of a Plan; or
(ii) that the purchase and holding of such Certificate or interest therein by
such person qualifies for the exemptive relief available under Sections I and
III of PTCE.
(e) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(F) below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Certificate Registrar under clause (G) below to
negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
The rights of such person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and a United States Person and shall promptly
notify the Certificate Registrar of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Certificate
Registrar shall require delivery to it, and no Transfer of any
Residual Certificate shall be registered until the Certificate
Registrar receives, an affidavit and agreement substantially
in the form attached hereto as Exhibit E-1 (a "Transfer
Affidavit and Agreement") from the proposed Transferee, in
form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such
Transferee
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is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Certificate that is the
subject of the proposed Transfer as a nominee, trustee or
agent for any Person that is not a Permitted Transferee, that
for so long as it retains its Ownership Interest in a Residual
Certificate, it will endeavor to remain a Permitted
Transferee, that it is a United States Person, and that it has
reviewed the provisions of this Section 3.3(e) and agrees to
be bound by them.
(C) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee under clause
(B) above, if the Certificate Registrar has actual knowledge
that the proposed Transferee is not a Permitted Transferee or
is not a United States Person, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate shall agree (1) to require
a Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts to transfer its
Ownership Interest in such Residual Certificate and (2) not
to transfer its Ownership Interest in such Residual
Certificate unless it provides to the Certificate Registrar a
certificate substantially in the form attached hereto as
Exhibit E-2 stating that, among other things, it has no
actual knowledge that such prospective Transferee is not a
Permitted Transferee or is not a United States Person.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate that is a "pass-through
interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) or is holding an
Ownership Interest in a Residual Certificate on behalf of a
"pass-through interest holder", by purchasing an Ownership
Interest in such Certificate, agrees to give the Certificate
Registrar written notice of its status as such immediately
upon holding or acquiring such Ownership Interest in a
Residual Certificate.
(F) If any purported Transferee shall become a
Holder of a Residual Certificate in violation of the
provisions of this Section 3.3(e) or if any Holder of a
Residual Certificate shall lose its status as a Permitted
Transferee or a United States Person, then the last preceding
Holder of such Residual Certificate that was in compliance
with the provisions of this Section 3.3(e) shall be restored,
to the extent permitted by law, to all rights and obligations
as Holder thereof retroactive to the date of registration of
such Transfer of such Residual Certificate. None of the
Trustee, the Fiscal Agent, the Master Servicer, the Special
Servicer or the Certificate Registrar shall be under any
liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this
Section 3.3(e) or for making any payments due on such
Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of
this Agreement.
(G) If any purported Transferee shall become a
Holder of a Residual Certificate in violation of the
restrictions in this Section 3.3(e), or if any Holder of
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a Residual Certificate shall lose its status as a Permitted
Transferee or a United States Person, and to the extent that
the retroactive restoration of the rights and obligations of
the prior Holder of such Residual Certificate as described in
clause (F) above shall be invalid, illegal or unenforceable,
then the Certificate Registrar shall have the right, without
notice to the Holder or any prior Holder of such Residual
Certificate, but not the obligation, to sell such Residual
Certificate to a purchaser selected by the Trustee on such
terms as the Trustee may choose. Such noncomplying Holder
shall promptly endorse and deliver such Residual Certificate
in accordance with the instructions of the Certificate
Registrar. Such purchaser may be the Certificate Registrar
itself or any Affiliate of the Certificate Registrar. The
proceeds of such sale, net of the commissions (which may
include commissions payable to the Certificate Registrar or
its Affiliates), expenses and taxes due, if any, will be
remitted by the Certificate Registrar to such noncomplying
Holder. The terms and conditions of any sale under this clause
(G) shall be determined in the sole discretion of the
Certificate Registrar, and the Certificate Registrar shall not
be liable to any Person having an Ownership Interest in a
Residual Certificate as a result of its exercise of such
discretion.
The Master Servicer, on behalf of the Trustee, shall make available, upon
written request from the Trustee, to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership Interest in a
Residual Certificate to any Person who is not a Permitted Transferee, including
the information described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is not a Permitted Transferee. The Person holding such Ownership Interest
shall be responsible for the reasonable compensation of the Master Servicer and
the Trustee for providing such information.
The provisions of this Section 3.3(e) may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee,
the Certificate Registrar, the Master Servicer and the Depositor the following:
(A) written notification from each Rating Agency to
the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating
Agency to qualify, downgrade or withdraw its then current
rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, the Certificate Registrar and
the Depositor, to the effect that such modification of,
addition to or elimination of such provisions will not cause
any of REMIC I, REMIC II or REMIC III to (x) cease to qualify
as a REMIC or (y) be subject to an entity-level tax caused by
the Transfer of any Residual Certificate to a Person which is
not a Permitted Transferee, or cause a Person other than the
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prospective Transferee to be subject to a tax caused by the
Transfer of a Residual Certificate to a Person which is not a
Permitted Transferee.
(f) None of the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent or the Certificate Registrar shall have any liability
to the Trust arising from a transfer of any Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 3.3;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have
no obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer or exchange of Certificates or any interest therein
imposed under this Article III or under applicable law other than to require
delivery of the certifications and/or opinions described in this Article III;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have
no liability for transfers (including without limitation transfers made through
the book-entry facilities of the Depository or between or among Participants or
Certificate Owners) made in violation of applicable restrictions, provided that
the Certificate Registrar has satisfied its duties expressly set forth in
Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange
shall be physically cancelled by the Certificate Registrar, and the Certificate
Registrar shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide notice to the
Master Servicer, the Special Servicer and the Depositor of each transfer of a
Certificate and, upon written request, provide each such Person with an updated
copy of the Certificate Register within a reasonable period of time following
receipt of such request.
(i) Unless and until it is exchanged in whole for the
individual Certificates represented thereby, a Global Certificate representing
all of the Certificates of a Class may not be transferred, except as a whole by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES. If (A) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (B) except in the case of
a mutilated Certificate so surrendered, there is delivered to the Certificate
Registrar such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to the Certificate Registrar that such
Certificate has been acquired by a bona
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fide purchaser, the Certificate Registrar shall execute, and the Authenticating
Agent shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and interest in the Trust. In connection with the issuance of any new
Certificate under this Section 3.4, the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section 3.4 shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser and any agent of
the Master Servicer, the Special Servicer, the Fiscal Agent, the Trustee or the
Operating Adviser may treat the Person in whose name any Certificate is
registered as of the related Record Date as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser nor any agent of
the Master Servicer, the Special Servicer, the Fiscal Agent, the Trustee or the
Operating Adviser shall be affected by any notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, the Master Servicer, the Special
Servicer, the Operating Adviser or the Depositor (A) request in writing from the
Certificate Registrar a list of the names and addresses of Certificateholders
and (B) in the case of a request by Certificateholders, state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, then the
Certificate Registrar shall, within ten Business Days after the receipt of such
request, afford such Certificateholders, the Master Servicer, the Special
Servicer, the Depositor or the Operating Adviser, as applicable, access during
normal business hours to a current list of the Certificateholders. The expense
of providing any such information requested by such Person shall be borne by the
party requesting such information and shall not be borne by the Certificate
Registrar or the Trustee. Every Certificateholder, by receiving and holding a
Certificate, agrees that the Certificate Registrar and the Trustee shall not be
held accountable by reason of the disclosure of any such information as to the
list of the Certificateholders hereunder, regardless of the source from which
such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) Notwithstanding the foregoing, the Class A-1, Class A-2,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificates, upon
original issuance, each shall be issued in the form of one or more Certificates
representing the Book-Entry Certificates, to be delivered to the Certificate
Registrar, as custodian for The Depository Trust Company (the "Depository"), the
initial Clearing Agency, by, or on behalf of, the Depositor. The Certificates
shall initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the Depository,
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as the initial Clearing Agency, and no Certificate Owner will receive a
definitive certificate representing such Certificate Owner's interest in the
Certificates, except as provided in Section 3.9. Unless and until Definitive
Certificates have been issued to the Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force
and effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Certificate
Registrar and the Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Certificates) as the authorized
representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7
conflict with any other provisions of this Agreement, the provisions of this
Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class
shall be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency and/or the Participants.
Pursuant to the Depository Agreement, unless and until Certificates are issued
pursuant to Section 3.9, the initial Clearing Agency will make book-entry
transfers among the Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring
or permitting actions with the consent of, or at the direction of, Holders of
the Certificates evidencing a specified percentage of the aggregate unpaid
principal amount of Certificates, such direction or consent may be given by the
Clearing Agency at the direction of Certificate Owners owning Certificates
evidencing the requisite percentage of principal amount of Certificates. The
Clearing Agency may take conflicting actions with respect to the Certificates to
the extent that such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or to Institutional
Accredited Investors shall be represented by the Rule 144A-IAI Global
Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. The Certificates evidenced by any Rule
144A-IAI Global Certificate shall be subject to certain restrictions on transfer
as set forth in Section 3.3 hereof and shall bear legend(s) regarding such
restrictions described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation
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S Temporary Global Certificate may be held only through Euroclear or CEDEL;
provided, however, that such interests may be exchanged for interests in the
Rule 144A-IAI Global Certificate for such Class in accordance with the
certification requirements described in Section 3.7(f). The Regulation S
Permanent Global Certificates shall be deposited with the Certificate Registrar,
as custodian for the Depository and registered in the name of Cede & Co. as
nominee of the Depository.
On or prior to the Release Date and on or prior to any
Distribution Date occurring prior to the Release Date, each Certificate Owner of
a Regulation S Temporary Global Certificate that holds a beneficial interest
therein on the Release Date or on any such Distribution Date, as the case may
be, must deliver to Euroclear or CEDEL (as applicable) a Regulation S
Certificate; provided, however, that any Certificate Owner that holds a
beneficial interest in a Regulation S Temporary Global Certificate on the
Release Date or on any such Distribution Date that has previously delivered a
Regulation S Certificate to Euroclear or CEDEL with respect to its interest
therein does not need to deliver any subsequent Regulation S Certificate (unless
the certificate previously delivered is no longer true as of such subsequent
date, and such Certificate Owner must promptly notify Euroclear or CEDEL, as
applicable, thereof). Euroclear or CEDEL, as applicable, shall be required to
promptly deliver to the Certificate Registrar a certificate substantially in the
form of Exhibit I hereto to the effect that it has received the requisite
Regulation S Certificates for each such Class, and no Certificate Owner (or
transferee from any such Certificate Owner) shall be entitled to receive an
interest in the Regulation S Permanent Global Certificate for such Class or any
payment or principal or interest with respect to its interest in such Regulation
S Temporary Global Certificate prior to the Certificate Registrar receiving such
certification from Euroclear or CEDEL with respect to the portion of the
Regulation S Temporary Global Certificate owned by such Certificate Owner (and,
with respect to an interest in the applicable Regulation S Permanent Global
Certificate, prior to the Release Date). After the Release Date, distributions
due with respect to any beneficial interest in a Regulation S Temporary Global
Certificate shall not be made to the holders of such beneficial interests unless
exchange for a beneficial interest in the related Regulation S Permanent Global
Certificate is improperly withheld or refused. No interest in a Regulation S
Global Certificate may be held by or transferred to a U.S. Person (as defined in
Regulation S) except for exchanges for a beneficial interest in the Rule
144A-IAI Global Certificate for such Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below in
Section 3.9, owners of beneficial interests in Global Certificates shall not be
entitled to receive physical delivery of Definitive Certificates. The
Certificates are not issuable in bearer form. Upon the issuance of each Global
Certificate, the Depository or its custodian shall credit, on its internal
system, the respective principal amount of the individual beneficial interests
represented by such Global Certificate to the accounts of Persons who have
accounts with such Depository. Such accounts initially shall be designated by or
on behalf of the Placement Agents. Ownership of beneficial interests in a Global
Certificate shall be limited to Customers or Persons who hold interests directly
or indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only through, records maintained by the Depository or its nominee (with
respect to interests of Customers) and the records of Customers (with respect to
interests of Persons other than Customers).
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So long as the Depository, or its nominee, is the registered
holder of a Global Certificate, the Depository or such nominee, as the case may
be, shall be considered the sole owner and holder of the Certificates
represented by such Global Certificate for all purposes under this Agreement and
the Certificates, including, without limitation, obtaining consents and waivers
thereunder, and the Trustee and the Certificate Registrar shall not be affected
by any notice to the contrary. Except under the circumstance described in
Section 3.9, owners of beneficial interests in a Global Certificate will not be
entitled to have any portions of such Global Certificate registered in their
names, will not receive or be entitled to receive physical delivery of
Definitive Certificates in certificated form and shall not be considered the
owners or holders of the Global Certificate (or any Certificates represented
thereby) under this Agreement or the Certificates. In addition, no Certificate
Owner of an interest in a Global Certificate shall be able to transfer that
interest except in accordance with the Depository's applicable procedures (in
addition to those under this Agreement and, if applicable, those of Euroclear
and CEDEL).
(f) Any holder of an interest in a Regulation S Global
Certificate shall have the right, upon prior written notice to the Certificate
Registrar, Euroclear or CEDEL, as applicable, and the Depository, in the form of
an Exchange Certification (substantially in the form of Exhibit H attached
hereto), to exchange all or a portion of such interest (in authorized
denominations as set forth in Section 3.1(b)) for an equivalent interest in the
Rule 144A-IAI Global Certificate for such Class in connection with a transfer of
its interest therein to a transferee that is eligible to hold an interest in
such Rule 144A-IAI Global Certificate as described herein; provided, however,
that no Exchange Certification shall be required if any such exchange occurs
after the Release Date. Any holder of an interest in the Rule 144A-IAI Global
Certificate shall have the right, upon prior written notice to the Certificate
Registrar, the Depository and Euroclear or CEDEL, as applicable, in the form of
an Exchange Certification, to exchange all or a portion of such interest (in
authorized denominations as set forth in Section 3.1(b)) for an equivalent
interest in the Regulation S Global Certificate for such Class in connection
with a transfer of its interest therein to a transferee that is eligible to hold
an interest in such Regulation S Global Certificate as described herein;
provided, however, that if such exchange occurs prior to the Release Date, the
transferee shall acquire an interest in a Regulation S Temporary Global
Certificate only and shall be subject to all of the restrictions associated
therewith described in Section 3.7(d). Following receipt of any Exchange
Certification or request for transfer, as applicable, by the Certificate
Registrar: (i) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates being exchanged
to reduce the stated principal amount of such Global Certificate by the
denominations of the Certificate or Certificates for which such exchange is to
be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or
other communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the Trustee shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
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communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of
beneficial interests in a Global Certificate or their nominees if (i) the
Depository notifies the Depositor and the Certificate Registrar in writing that
the Depository is unwilling or unable to continue as depositary for such Global
Certificate and a qualifying successor depositary is not appointed by the
Depositor within 90 days thereof, (ii) the Trustee has instituted or caused to
be instituted or has been directed to institute any judicial proceeding in a
court to enforce the rights of the Certificateholders under this Agreement and
under such Global Certificate and the Trustee has been advised by counsel that
in connection with such proceeding it is necessary or advisable for the Trustee
or its custodian to obtain possession of such Global Certificate, or (iii) after
the occurrence of an Event of Default, Certificate Owners representing a
majority in aggregate outstanding Certificate Balance of such Global Certificate
advise the Depository through the Participants in writing (and the Depository so
advises the Depositor, the Certificate Registrar and the Master Servicer in
writing) that the continuation in global form of the Certificates being
evidenced by such Global Certificate is no longer in their best interests;
provided, that under no circumstances will Definitive Certificates be issued to
Certificate Owners of the Regulation S Temporary Global Certificate. Upon notice
of the occurrence of any of the events described in the preceding sentence, the
Certificate Registrar shall notify the Depository and request the Depository to
notify all Certificate Owners, through the applicable Participants, of the
occurrence of the event and of the availability of Definitive Certificates to
such Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of the Global Certificates by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency for registration, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver, the Definitive Certificates. None of the Depositor,
the Trustee, the Certificate Registrar or the Fiscal Agent shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, all references herein to obligations imposed upon or to
be performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable with respect to
such Definitive Certificates, and the Certificate Registrar and the Trustee
shall recognize the Holders of Definitive Certificates as Certificateholders
hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Trustee directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made by the
Master Servicer and, if the Master Servicer does not make such Advances, by the
Trustee, and if the Trustee does not
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make such Advances, by the Fiscal Agent except to the extent that the Master
Servicer, the Trustee or the Fiscal Agent, as applicable, determines in
accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER.
(a) On or prior to the Advance Report Date, the Master
Servicer shall notify the Trustee if the P&I Advance Amount for such
Distribution Date is greater than zero, and the Master Servicer shall make a P&I
Advance of such amount no later than the Master Servicer Remittance Date. It is
understood that the obligation of the Master Servicer to make such P&I Advances
is mandatory and shall apply through any court appointed stay period or similar
payment delay resulting from any insolvency of the Mortgagor or related
bankruptcy, notwithstanding any other provision of this Agreement.
Notwithstanding the foregoing, the Master Servicer shall not be required to make
such P&I Advance, if the Master Servicer determines, in accordance with Section
4.4 below, that any such P&I Advance would be a Nonrecoverable Advance. Such
determination shall be conclusive and binding on the Trustee, the Fiscal Agent
and the Certificateholders. The Special Servicer shall not be required to make
P&I Advances under this Agreement. If the Master Servicer fails to make a P&I
Advance, it shall promptly notify the Trustee of such failure.
(b) If the Master Servicer determines that there is a P&I
Advance Amount for a Distribution Date, the Master Servicer shall on the Master
Servicer Remittance Date either (A) deposit in the Certificate Account an amount
equal to the P&I Advance Amount or (B) utilize funds in the Certificate Account
being held for future distributions or withdrawals to make such Advance. Any
funds being held in the Certificate Account for future distribution or
withdrawal and so used shall be replaced by the Master Servicer from its own
funds by deposit in the Certificate Account on or before any future Master
Servicer Remittance Date to the extent that funds in the Certificate Account on
such Master Servicer Remittance Date shall be less than payments to the Trustee
or other Persons required to be made on such date.
SECTION 4.2 SERVICING ADVANCES. The Master Servicer and, if
the Master Servicer does not, the Trustee (if the Trustee has knowledge that
such Advance is required to be made), and if the Trustee does not, the Fiscal
Agent (if the Fiscal Agent has knowledge that such Advance is required to be
made) shall make Servicing Advances to the extent provided in this Agreement,
except to the extent that the Master Servicer, the Trustee or the Fiscal Agent,
as applicable, determines in accordance with Section 4.4 below, that any such
Advance would be a Nonrecoverable Advance. Such determination by the Master
Servicer shall be conclusive and binding on the Trustee, the Fiscal Agent and
the Certificateholders. The Special Servicer shall not be required to make
Servicing Advances under this Agreement. If the Master Servicer fails to make a
Servicing Advance, it shall promptly notify the Trustee of such failure.
SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT.
(a) To the extent that the Master Servicer fails to make a
P&I Advance by the Master Servicer Remittance Date (other than a P&I Advance
that the Master Servicer determines is a Nonrecoverable Advance), the Trustee
shall make such P&I Advance not later than 10:00 a.m. (New York City time) on
the Distribution Date that such advance has not been made by the
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Master Servicer on the Master Servicer Remittance Date unless the Trustee
determines that such P&I Advance, if made, would be a Nonrecoverable Advance. To
the extent that the Trustee fails to make a P&I Advance required to be made by
the Trustee hereunder on the Distribution Date (other than a P&I Advance that
the Master Servicer or the Trustee determines is a Nonrecoverable Advance), the
Fiscal Agent will advance such P&I Advance unless the Fiscal Agent determines
that any such P&I Advance, if made, would be a Nonrecoverable Advance. To the
extent that the Fiscal Agent is required hereunder to make P&I Advances, it
shall deposit the amount thereof in the Distribution Account by 1:00 p.m. (New
York City time) on each such Distribution Date.
(b) To the extent that the Master Servicer fails to make a
Servicing Advance by the date such Servicing Advance is required to be made
(other than a Servicing Advance that the Master Servicer determines is a
Nonrecoverable Advance), and a Responsible Officer of the Trustee receives
notice thereof, the Trustee shall make such Servicing Advance promptly, but in
any event, not later than five Business Days after notice thereof in accordance
with Section 4.2, unless the Trustee determines that such Servicing Advance, if
made, would be a Nonrecoverable Advance.
(c) To the extent that the Trustee fails to make a Servicing
Advance required to be made by the Trustee hereunder by the later of (i) the
date such Servicing Advance is required to be made and (ii) five Business Days
after the date the Trustee has received notice pursuant to subsection (b) above,
that such Servicing Advance has not been made by the Master Servicer (other than
a Servicing Advance that the Master Servicer or the Trustee has determined to be
a Nonrecoverable Advance), the Fiscal Agent will advance such Servicing Advance,
unless the Fiscal Agent determines that such Servicing Advance, if made, would
be a Nonrecoverable Advance.
The initial Trustee's failure to make any Advance required to
be made by it hereunder shall not constitute a default by the initial Trustee
hereunder if the initial Fiscal Agent makes such Advance at or before the time
when the Trustee was required to make such Advance.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY. If the Master
Servicer determines at any time, in its sole discretion, exercised in good
faith, that any Advance previously made or proposed Advance, if made, would
constitute a Nonrecoverable Advance, such determination shall be evidenced by an
Officer's Certificate delivered to the Trustee, the Special Servicer and the
Rating Agencies by the Business Day prior to the Distribution Date. Such
Officer's Certificate shall set forth the reasons for such determination of
nonrecoverability, together with, to the extent such information, report or
document is in the Master Servicer's possession, any related financial
information such as related income and expense statements, rent rolls, occupancy
status, property inspections and any appraisals performed in accordance with MAI
standards within the last 12 months on the Mortgaged Property, and, if such
reports are used by the Master Servicer to determine that any P&I Advance or
Servicing Advance, as applicable, would be a Nonrecoverable Advance, any
engineers' reports, environmental surveys, internal final valuations or other
information relevant thereto which support such determination. If the Trustee or
the Fiscal Agent, as applicable, determines at any time that any portion of an
Advance previously made or a portion of a proposed Advance that the Trustee or
the Fiscal Agent, as applicable, is required to make pursuant to this Agreement,
if made, would constitute a
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Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate of a Responsible Officer of the Trustee or the Fiscal Agent, as
applicable, delivered to the Depositor, the Master Servicer and the Special
Servicer similar to the Officer's Certificate of the Master Servicer described
in the prior sentence. The Trustee and the Fiscal Agent shall not be required to
make an Advance that the Master Servicer has previously determined to be a
Nonrecoverable Advance. Notwithstanding any other provision of this Agreement,
none of the Master Servicer, the Trustee or the Fiscal Agent shall be obligated
to, nor shall it, make any Advance or make any payment that is designated in
this Agreement to be an Advance, if it determines in its good faith judgment
that such Advance or such payment (including interest accrued thereon at the
Advance Rate) would be a Nonrecoverable Advance. The Master Servicer's
determination in accordance with the above provisions shall be conclusive and
binding on the Trustee, the Fiscal Agent and the Certificateholders.
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING
ADVANCES WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from
the Master Servicer's, the Trustee's or the Fiscal Agent's own funds shall
accrue interest on a daily basis, at a per annum rate equal to the Advance Rate,
from the date such Advance was made until the date on which such Advance has
been reimbursed. For purposes of determining whether a P&I Advance is
outstanding, amounts collected with respect to a particular Mortgage Loan or REO
Property and treated as collections of principal or interest shall be applied
first to reimburse the earliest P&I Advance and then each succeeding P&I Advance
to the extent not inconsistent with Section 4.6. The Master Servicer and the
Special Servicer shall attempt to collect (but shall have no obligation to
collect), with respect to the Mortgage Loans that are not Specially Serviced
Mortgage Loans and Specially Serviced Mortgage Loans, respectively, Late Fees
and default interest from the Mortgagor in an amount sufficient to pay Advance
Interest. The Master Servicer shall be entitled to retain Late Fees paid by any
Mortgagor with respect to any Mortgage Loan (other than a Specially Serviced
Mortgage Loan, as to which the Special Servicer shall retain Late Fees) as
additional servicing compensation to the extent such Late Fees exceed Advance
Interest. The Special Servicer, with respect to any Specially Serviced Mortgage
Loan, shall (i) pay from any related Late Fees outstanding and unpaid Advance
Interest to the Master Servicer, the Trustee or the Fiscal Agent, as applicable,
and (ii) retain any remaining portion of such Late Fees as additional Special
Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan or
Specially Serviced Mortgage Loan or REO Property (including Advances later
determined to be Nonrecoverable Advances) shall be reimbursed to the extent of
the amounts identified to be applied therefor in Section 5.2. The aggregate of
the amounts available to repay Advances pursuant to Section 5.2 collected in any
Collection Period with respect to Mortgage Loans or Specially Serviced Mortgage
Loans or REO Property shall be an " Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on Mortgage
Loans, Specially Serviced Mortgage Loans or REO Property, the Available Advance
Reimbursement Amount with respect to any Determination Date shall be applied to
reimburse (i) the Fiscal Agent for any Advances outstanding to the Fiscal Agent
with respect to any of such Mortgage
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Loans or Specially Serviced Mortgage Loans or REO Property, plus any Advance
Interest owed to the Fiscal Agent with respect to such Advances and then (ii)
the Trustee for any Advances outstanding to the Trustee with respect to any of
such Mortgage Loans or Specially Serviced Mortgage Loans or REO Property, plus
any Advance Interest owed to the Trustee with respect to such Advances and then
(iii) the Master Servicer for any Advances outstanding to the Master Servicer
with respect to any of such Mortgage Loans, plus any Advance Interest owed to
the Master Servicer with respect to such Advances. To the extent that any
Advance Interest payable to the Master Servicer, the Trustee or the Fiscal Agent
with respect to a Specially Serviced Mortgage Loan or REO Property cannot be
recovered from the related Mortgagor, the amount of such Advance Interest shall
be treated as a Servicing Advance and shall be payable to the Fiscal Agent, the
Trustee or the Master Servicer, as the case may be, from amounts on deposit in
the Certificate Account or the Distribution Account pursuant to Section 5.2(a)
or Section 5.3(b)(ii). The Master Servicer's, the Fiscal Agent's and the
Trustee's right of reimbursement under this Agreement for Advances shall be
prior to the rights of the Certificateholders to receive any amounts recovered
with respect to such Mortgage Loans or REO Properties.
(c) Advance Interest will be paid to the Fiscal Agent, the
Trustee and/or the Master Servicer (in accordance with the priorities specified
in the preceding paragraph) first from Late Fees and default interest collected
with respect to the Mortgage Loans as to which the related Advances were made,
and then from Excess Liquidation Proceeds.
(d) Amounts applied to reimburse Advances shall first be
applied to reduce Advance Interest thereon that was not paid from amounts
specified in the preceding paragraph (c) and then to reduce the outstanding
amount of such Advances.
(e) To the extent that the Special Servicer incurs
out-of-pocket expenses, in accordance with the Servicing Standard, in connection
with servicing Specially Serviced Mortgage Loans, the Master Servicer shall
reimburse the Special Servicer for such expenditures within 30 days after
receiving an invoice and a report from the Special Servicer, subject to Section
4.4. With respect to each Collection Period, the Special Servicer shall deliver
such invoice and report to the Master Servicer by the following Determination
Date. All such amounts reimbursed by the Master Servicer shall be a Servicing
Advance. In the event that the Master Servicer defaults under its obligation to
reimburse the Special Servicer hereunder or the Master Servicer determines that
such Servicing Advance, if made, would be a Nonrecoverable Advance, the Special
Servicer shall notify the Master Servicer and the Trustee in writing of such
nonpayment and the amount payable to the Special Servicer and shall be entitled
to receive reimbursement from the Trust as an Additional Trust Expense. The
Master Servicer and the Trustee shall have no obligation to verify the amount
payable to the Special Servicer pursuant to this Section 4.6(d) and
circumstances surrounding the notice delivered by the Special Servicer pursuant
to this Section 4.6(d).
SECTION 4.7 FISCAL AGENT TERMINATION EVENT. "Fiscal Agent
Termination Event," wherever used herein, means any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the Trustee
when due any required Advances; or
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(ii) A decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Fiscal Agent and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent or relating
to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(v) Fitch shall indicate its intent to reduce, qualify or
withdraw, as applicable, the outstanding rating of any Class of Certificates
because the prospective financial condition or capacity to make Advances of the
Fiscal Agent is insufficient to maintain such rating; or
(vi) The long-term unsecured debt of the Fiscal Agent is
rated below AA by Fitch.
(vii) With respect to the initial Fiscal Agent, LaSalle Bank
National Association resigns or is removed pursuant to Section 7.6 hereof.
SECTION 4.8 PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of termination
given to the Fiscal Agent pursuant to Section 7.6(c), all authority, power and
rights of the Fiscal Agent under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall terminate and a successor Fiscal Agent, if
necessary, shall be appointed by the Trustee, with the consent of the Depositor;
provided that the successor Fiscal Agent meets the eligibility requirements set
forth in Section 7.5. The Fiscal Agent agrees to cooperate with the Trustee in
effecting the termination of the Fiscal Agent's responsibilities and rights
hereunder as Fiscal Agent.
(b) Notwithstanding the termination of its activities as
Fiscal Agent, the terminated Fiscal Agent shall continue to be entitled to
reimbursement to the extent provided in Section 4.6 but only to the extent such
reimbursement relates to the period up to and including the date on which the
Fiscal Agent's termination is effective. The Fiscal Agent shall be reimbursed
for all amounts owed to it hereunder on or prior to the effective date of its
termination from amounts on deposit in the Certificate Account.
SECTION 4.9 MERGER OR CONSOLIDATION OF FISCAL AGENT. Any
Person into which the Fiscal Agent may be merged or consolidated, or any Person
resulting from any
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merger, conversion, other change in form or consolidation to which the Fiscal
Agent shall be a party, or any Person succeeding to the business of the Fiscal
Agent, shall be the successor of the Fiscal Agent hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided that
(i) the successor to the Fiscal Agent or resulting Person shall have a net worth
of not less than $100,000,000, (ii) such successor or resulting Person shall be
satisfactory to the Trustee, (iii) such successor or resulting Person shall
execute and deliver to the Trustee an agreement, in form and substance
satisfactory to the Trustee, which contains an assumption by such Person of the
due and punctual performance and observance of each covenant and condition to be
performed or observed by the Fiscal Agent under this Agreement from and after
the date of such agreement, (iv) the successor or surviving entity meets the
eligibility requirements set forth in Section 7.5, and (v) the Fiscal Agent
shall deliver to the Trustee an Officer's Certificate and an Opinion of Counsel
acceptable to the Trustee (which opinion shall be at the expense of the Fiscal
Agent) stating that all conditions precedent to such action under this Section
4.9 have been completed and such action is permitted by and complies with the
terms of this Section 4.9.
SECTION 4.10 LIMITATION ON LIABILITY OF THE FISCAL AGENT AND
OTHERS. Neither the Fiscal Agent nor any of the directors, officers, employees,
agents or Controlling Persons of the Fiscal Agent shall be under any liability
to the Certificateholders, the Depositor or the Trustee for any action taken or
for refraining from the taking of any action in good faith, and using reasonable
business judgment pursuant to this Agreement, or for errors in judgment;
provided that this provision shall not protect the Fiscal Agent or any such
Person against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties under
this Agreement. The Fiscal Agent and any director, officer, employee or agent of
the Fiscal Agent may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Fiscal Agent shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its obligations
under this Agreement. In such event, all legal expenses and costs of such action
shall be expenses and costs of the Trust, and the Fiscal Agent shall be entitled
to be reimbursed therefor as Servicing Advances as provided by this Agreement.
The provisions of this Section 4.10 shall survive the resignation or removal of
the Fiscal Agent and the termination of this Agreement.
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT. The Fiscal
Agent and each of its directors, officers, employees, agents and Controlling
Persons shall be indemnified by the Trust and held harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to this Agreement other than any loss,
liability or expense incurred by reason of the Fiscal Agent's willful
misfeasance, bad faith or negligence in the performance of duties hereunder. The
Depositor shall indemnify and hold harmless the Fiscal Agent, its directors,
officers, employees, agents and Controlling Persons from and against any loss,
claim, damage or liability, joint or several, and any action in respect thereof,
to which the Fiscal Agent, its directors, officers, employees, agents or
Controlling Person may become subject under the 1933 Act, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Private Placement Memorandum or in the Preliminary Prospectus Supplement and
Final
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Prospectus Supplement or arises out of, or is based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made, not misleading and shall reimburse the Fiscal Agent, its
directors, officers, employees, agents or Controlling Person for any legal and
other expenses reasonably incurred by the Fiscal Agent or any such director,
officer, employee, agent or Controlling Person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action.
The Fiscal Agent shall immediately notify the Depositor, the Sellers, the Master
Servicer and the Trustee if a claim is made by a third party with respect to
this Section 4.11 entitling the Fiscal Agent, its directors, officers,
employees, agents or Controlling Person to indemnification hereunder, whereupon
the Depositor shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Fiscal Agent) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Depositor shall not affect any rights the
Fiscal Agent, its directors, officers, employees, agents or Controlling Person
may have to indemnification under this Section 4.11, unless the Depositor's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or removal of the Fiscal Agent.
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, the Master Servicer
shall open, or cause to be opened, and shall thereafter maintain, or cause to be
maintained, a separate account or accounts, which accounts must be Eligible
Accounts, in the name of "Wells Fargo Bank, National Association, as Master
Servicer for LaSalle Bank National Association, as Trustee for the Holders of
Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 1999-LIFE1" (the "Certificate Account"). On or prior to the Closing Date,
the Master Servicer shall open, or cause to be opened, and shall maintain, or
cause to be maintained an additional separate account or accounts in the name of
"Wells Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-LIFE1" (the
"Interest Reserve Account").
(b) On or prior to the date the Master Servicer shall first
deposit funds in a Certificate Account or the Interest Reserve Account, as the
case may be, the Master Servicer shall give to the Trustee prior written notice
of the name and address of the depository institution(s) at which such accounts
are maintained and the account number of such accounts. The Master Servicer
shall take such actions as are necessary to cause the depository institution
holding the Certificate Account and the Interest Reserve Account to hold such
account in the name of the Master Servicer as provided in Section 5.1(a),
subject to the Master Servicer's (or its Sub-Servicer's) right to direct
payments and investments and its rights of withdrawal under this Agreement.
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(c) The Master Servicer shall deposit, or cause to be
deposited, into the Certificate Account on the Business Day following receipt
(or, in the case of an inadvertent failure to make such deposit on the Business
Day following receipt, within 3 Business Days of discovery of such failure and
in the case of unscheduled remittances of principal or interest, on the Business
Day following identification of the proper application of such amounts), the
following amounts received by it (including amounts remitted to the Master
Servicer by the Special Servicer from an REO Account pursuant to Section 9.14 or
as Compensating Interest pursuant to Section 9.11), other than in respect of
interest and principal on the Mortgage Loans due on or before the Cut-Off Date
which shall be remitted to the Depositor (provided that the Master Servicer (I)
may retain amounts otherwise payable to the Master Servicer as provided in
Section 5.2(a) rather than deposit them into the Certificate Account, (II)
shall, rather than deposit them in the Certificate Account, directly remit to
the Primary Servicers the applicable Primary Servicing Fees payable as provided
in Section 5.2(a)(iv)(unless already retained by the applicable Primary
Servicer), and (III) shall, rather than deposit them in the Certificate Account,
directly remit the Excess Servicing Fees to the holders thereof as provided in
Section 5.2(a)(iv))(unless already retained by the applicable holder of the
excess servicing rights)):
(A) Principal: all payments on account of principal,
including Principal Prepayments, the principal component of
Scheduled Payments, and any Late Collections in respect
thereof on the Mortgage Loans;
(B) Interest: subject to subsection (d) hereof, all
payments on account of interest, including Compensating
Interest paid by the Special Servicer pursuant to Section
9.11, (minus any portion of any such payment that is
allocable to the period prior to the Cut-Off Date which shall
be remitted to the Depositor and excluding Interest Reserve
Amounts to be deposited in the Interest Reserve Account
pursuant to Section 5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds
with respect to the Mortgage Loans;
(D) Insurance Proceeds: all insurance proceeds other
than proceeds to be applied to the restoration or repair of
the property subject to the related Mortgage or released to
the related Mortgagor in accordance with the Servicing
Standard, which proceeds shall be deposited by the Master
Servicer into an Escrow Account and not deposited in the
Certificate Account;
(E) Condemnation Proceeds: all condemnation proceeds
other than proceeds to be applied to the restoration or
repair of the property subject to the related Mortgage or
released to the related Mortgagor in accordance with the
Servicing Standard, which proceeds shall be deposited by the
Master Servicer into an Escrow Account and not deposited in
the Certificate Account;
(F) REO Income: all REO Income received from the
Special Servicer;
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(G) Investment Losses: any amounts required to be
deposited by the Master Servicer pursuant to Section 5.1(e)
in connection with losses realized on Eligible Investments
with respect to funds held in the Certificate Account;
(H) Advances: all P&I Advances unless made directly
to the Distribution Account; and
(I) Other: all other amounts, including Prepayment
Premiums, required to deposited in the Certificate Account
pursuant to this Agreement, including Purchase Proceeds of
any Mortgage Loans repurchased by a Seller or substitution
shortfall amounts (as described in the fifth paragraph of
Section 2.3(a)) paid by a Seller in connection with the
substitution of any Qualifying Substitute Mortgage Loans.
Remittances from any REO Account to the Master Servicer for
deposit in the Certificate Account shall be made by the Special Servicer no
later than the Special Servicer Remittance Date.
(d) The Master Servicer, with respect to each Distribution
Date occurring in January (other than in any leap year) and February of each
year, shall deposit in the Interest Reserve Account in respect of each Interest
Reserve Loan, an amount equal to one day's interest at the related REMIC I Net
Mortgage Rate on the Scheduled Principal Balance of such Mortgage Loan as of the
Due Date in the month in which such Distribution Date occurs, to the extent a
Scheduled Payment or P&I Advance is timely made in respect thereof for such Due
Date (all amounts so deposited in any consecutive January and February in
respect of each Interest Reserve Loan, the "Interest Reserve Amount").
(e) Funds in the Certificate Account and Interest Reserve
Account may be invested and, if invested, shall be invested by, and at the risk
of, the Master Servicer in Eligible Investments selected by the Master Servicer
which shall mature, unless payable on demand, not later than the Business Day
immediately preceding the next Master Servicer Remittance Date, and any such
Eligible Investment shall not be sold or disposed of prior to its maturity
unless payable on demand. All such Eligible Investments shall be made in the
name of "LaSalle Bank National Association, as Trustee for the Holders of the
Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 1999-LIFE1." None of the Depositor, the Mortgagors or the Trustee shall
be liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment 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
Certificate Account or Interest Reserve Account, as the case may be, out of its
own funds immediately as realized. If the Master Servicer deposits in any
Certificate Account or Interest Reserve Account, as the case may be, any amount
not required to be deposited therein, it may at any time withdraw such amount
from the Certificate Account or Interest Reserve Account, as the case may be,
any provision herein to the contrary notwithstanding.
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(f) Except as expressly provided otherwise in this Agreement,
if any default occurs in the making of a payment due under any Eligible
Investment, or if a default occurs in any other performance required under any
Eligible Investment, the Trustee may take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings; provided, however, that if the Master Servicer shall
have deposited in the Certificate Account and Interest Reserve Account an amount
equal to all amounts due under any such Eligible Investment (net of anticipated
income or earnings thereon that would have been payable to the Master Servicer
as additional servicing compensation) the Master Servicer shall have the sole
right to enforce such payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by
the Mortgagor to the Master Servicer of amounts to be used for payment of Escrow
Amounts for the account of the Mortgagor. The Master Servicer shall deal with
these amounts in accordance with the Servicing Standard, the terms of the
related Mortgage Loans and Section 8.3(e) hereof, and the Primary Servicers will
be entitled to hold any Escrow Accounts relating to the Mortgage Loans that they
service in accordance with the requirements set forth in Section 8.3 (e).
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT
AND INTEREST RESERVE ACCOUNT.
(a) The Master Servicer shall, from time to time, make
withdrawals from the Certificate Account and remit them by wire transfer on the
related Master Servicer Remittance Date in immediately available funds to the
account specified in this Section or otherwise (w) to such account as it shall
determine from time to time of amounts payable to the Master Servicer from the
Certificate Account pursuant to clauses (i), (ii), (iii), (iv), (vi), (viii) and
(ix) below; (x) to the account specified in writing by the Trustee from time to
time of amounts payable to the Trustee from the Certificate Account pursuant to
clauses (ii), (iii), (v), (vi), (xi), (xii) and (xiii) below; and (y) to the
Special Servicer from time to time of amounts payable to the Special Servicer
from such Certificate Account pursuant to clauses (i), (iv), (vi), and (vii)
below of the following amounts, from the amounts specified for the following
purposes:
(i) Fees: the Master Servicer shall pay (A) to itself Late
Fees (in excess of Advance Interest) relating to Mortgage Loans which are not
Specially Serviced Mortgage Loans, Modification Fees relating to Mortgage Loans
which are not Specially Serviced Mortgage Loans as provided in Section 8.18, 50%
of any assumption fees payable under Section 8.7(a), 100% of any extension fees
payable under Section 8.10 or other fees payable to the Master Servicer
hereunder and (B) directly to the Special Servicer, 50% of any assumption fees
as provided in Section 8.7(a), 100% of any assumption fees as provided in
Section 8.7(b), all assumption fees relating to Specially Serviced Mortgage
Loans and Late Fees (in excess of Advance Interest which the Master Servicer
shall retain), Modification Fees and other fees collected on Specially Serviced
Mortgage Loans, in each case to the extent provided for herein from funds paid
by the applicable Mortgagor;
(ii) Servicing Advances (including amounts later determined
to be Nonrecoverable Advances): to apply, pursuant to Section 4.6, (x) prior to
a Final Recovery Determination or determination in accordance with Section 4.4
that any Advance is a Nonrecoverable Advance, payments made by the Mortgagor of
the amounts to which a Servicing
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Advance relates or from REO Income from the related REO Property or from
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase
Proceeds or (y) after a Final Recovery Determination or determination that any
Advance is a Nonrecoverable Advance, any funds on deposit in the Certificate
Account (regardless of whether such amount was recovered from the applicable
Mortgage Loan or REO Property), to reimburse the Fiscal Agent, the Trustee and
itself, in that order, as provided in, and subject to, Article IV hereof, for
any Servicing Advances (and Advance Interest thereon not paid in accordance with
Section 4.6(c)) made with respect to a Mortgage Loan or REO Property and not
previously reimbursed;
(iii) P&I Advances (including amounts later to be determined
to be Nonrecoverable Advances): to apply pursuant to Section 4.6, (x) prior to a
Final Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, payments made by the Mortgagor of the amounts to which a
P&I Advance relates, or REO Income from the related REO Property or from
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase
Proceeds or (y) after a Final Recovery Determination or determination in
accordance with Section 4.4 that any Advance is a Nonrecoverable Advance, for
any Mortgage Loan, any funds on deposit in the Certificate Account (regardless
of whether such amount was recovered from the applicable Mortgage Loan or REO
Property), to reimburse the Fiscal Agent, the Trustee and itself, in that order,
in accordance with Article IV hereof, for any P&I Advances (and Advance Interest
thereon not paid in accordance with Section 4.6(c)) previously made by it with
respect to the related Mortgage Loan or REO Property and not previously
reimbursed;
(iv) Servicing Fees and Special Servicer Compensation: to pay
to itself the Master Servicing Fee, to pay to the Special Servicer the Special
Servicing Fee, in each case, subject to reduction for any Compensating Interest,
to pay to the Primary Servicers the Primary Servicing Fees, and to pay to the
parties entitled thereto the Excess Servicing Fees (to the extent not previously
retained by any of such parties);
(v) Trustee Fee: to pay to the Distribution Account for
withdrawal by the Trustee the Trustee's Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto
any amounts specified herein to be Additional Trust Expenses (at the time set
forth herein or in the definition thereof), the payment of which is not more
specifically provided for in this Agreement; provided that the Depositor shall
not be entitled to receive reimbursement for performing its duties under this
Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final
Recovery Determination to pay to the Special Servicer from the Certificate
Account, the amount certified by the Special Servicer equal to the Liquidation
Fee, to the extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain
realized on the investment of funds deposited in such Certificate Account
relating to the Trust;
(ix) Prepayment Interest Excesses: to pay to the Master
Servicer the amount of the aggregate Prepayment Interest Excesses relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans (to the extent
not offset by Prepayment Interest Shortfalls relating to
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such Mortgage Loans); and to pay to the Special Servicer the amount of the
aggregate Prepayment Interest Excesses relating to Specially Serviced Mortgage
Loans which have received voluntary Principal Prepayments (not from Liquidation
Proceeds or from modifications to Specially Serviced Mortgage Loans), to the
extent not offset by Prepayment Interest Shortfalls relating to such Mortgage
Loans.
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Account in error;
(xi) Distribution Account: to make payment on each Master
Servicer Remittance Date to the Distribution Account of the remaining amounts in
the Certificate Account other than amounts held for payment in future periods or
pursuant to clauses (xii) and (xiii) below;
(xii) Reserve Account: to make payment on each Master
Servicer Remittance Date to the Reserve Account, any Excess Liquidation Proceeds
(subject to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the
Certificate Account pursuant to Section 8.29.
The Master Servicer shall keep and maintain a separate
accounting for each Mortgage Loan for the purpose of justifying any withdrawal
from the Certificate Account.
(b) Scheduled Payments due in a Collection Period succeeding
the Collection Period relating to such Master Servicer Remittance Date,
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the Certificate
Account and shall be distributed on the Master Servicer Remittance Date or Dates
to which such succeeding Collection Period or Periods relate.
(c) On each Master Servicer Remittance Date in March of every
year commencing in March 2000, the Master Servicer shall withdraw all amounts
then in the Interest Reserve Account and deposit such amounts into the
Distribution Account.
SECTION 5.3 DISTRIBUTION ACCOUNT AND RESERVE ACCOUNT.
(a) The Trustee shall establish (with respect to clause (i),
on or prior to the Closing Date, and with respect to clause (ii), on or prior to
the date the Trustee determines is necessary) and maintain in its name, as
trustee, (i) an account (the "Distribution Account"), to be held in trust for
the benefit of the Holders until disbursed pursuant to the terms of this
Agreement, titled: "LaSalle Bank National Association, as Trustee, in trust for
the benefit of the Holders of Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE1, Distribution Account" and (ii) an
account (the "Reserve Account") to be held in trust for the benefit of the
holders of interests in the Trust until disbursed pursuant to the terms of this
Agreement, titled: "LaSalle Bank National Association, as Trustee, in trust for
the benefit of the Holders of Morgan Stanley Capital I, Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-LIFE1, Reserve Account." The
Distribution Account and the Reserve Account shall be Eligible Accounts. Funds
in the Distribution Account and in the Reserve Account shall not be invested.
The Distribution Account and Reserve Account shall be held
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separate and apart from and shall not be commingled with any other monies
including, without limitation, other monies of the Trustee held under this
Agreement.
(b) The Trustee shall deposit into the Distribution Account
or the Reserve Account, as applicable, on the Business Day received all moneys
remitted by the Master Servicer pursuant to this Agreement, including P&I
Advances made by the Master Servicer, the Trustee and the Fiscal Agent and all
Excess Liquidation Proceeds. On any Master Servicer Remittance Date, the Master
Servicer shall have no duty to remit to the Distribution Account any amounts
other than amounts held in the Certificate Account and collected during the
related Collection Period as provided in clauses (v) and (xi) of Section 5.2 and
the P&I Advance Amount, and, on the Master Servicer Remittance Date occurring in
March of any year, commencing in March 2000, amounts held in the Interest
Reserve Account. The Trustee shall make withdrawals from the Distribution
Account and the Reserve Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution Account
in error and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Master Servicer, the
Primary Servicers, the Special Servicer and the Trustee (including the Trustee's
Fee) or other expenses or other amounts permitted to be paid hereunder and not
previously paid to such Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders
pursuant to Section 6.4; and
(iv) to clear and terminate the Distribution Account pursuant
to Section 10.2.
SECTION 5.4 TRUSTEE REPORTS.
(a) Based solely on (and to the extent of the information
contained in) the Master Servicer Remittance Report provided to the Trustee by
the Master Servicer (no later than the Report Date), on each Distribution Date,
the Trustee shall be required to provide or make available either electronically
or by first class mail (or such other medium as the Depositor shall reasonably
request, the incremental cost of which shall be paid in advance by the recipient
thereof), to each Certificateholder, the Trustee, the Rating Agencies, the
Master Servicer, the Special Servicer, the Primary Servicers, each Placement
Agent, each Underwriter, the Depositor and anyone the Depositor, the Placement
Agent or any Underwriter reasonably designates (i) a Monthly Certificateholders
Report (substantially in the form of Exhibit M) and (ii) a report containing
information regarding the Mortgage Loans as of the end of the related Collection
Period, which report shall contain substantially the categories of information
regarding the Mortgage Loans set forth in Appendix I to the Prospectus
Supplement and shall be presented in tabular format substantially similar to the
format utilized in such Appendix I. The Trustee shall be entitled to
conclusively rely on any such information provided to it by the Master Servicer
or the Special Servicer and shall have no obligation to verify any such
information and the Trustee may disclaim responsibility for any information
distributed by the Trustee for which it is not the original source.
Upon written request, the Trustee shall send the reports
described in the preceding paragraph to any Certificate Owner or
Certificateholder by first class mail at no cost to such
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Certificate Owner or Certificateholder. In addition, the Trustee shall make the
reports described in the preceding paragraph available through its website,
initially located at www.lnbabs.com (the "Trustee's Website"), electronic
bulletin board and its ASAP System (via facsimile). The Trustee's electronic
bulletin board may be initially accessed by calling (714) 282-3990, and its ASAP
System may be initially accessed by calling (714) 282-5518 and requesting
statement number 430. For assistance with the above-mentioned Trustee services,
Certificateholders or any party hereto may initially call (800) 246-5761. In
addition, the Trustee will also make Mortgage Loan information as presented in
the "CMSA f/k/a/ CSSA" standard file formats, the "CMSA f/k/a CSSA," loan setup
file format, the "CMSA f/k/a/ CSSA" loan periodic update file format, the
Special Servicer Monthly Reports (including a Watch Report) and the Annual
Report available each month to any Certificateholder, any Certificate Owner, the
Rating Agencies or any other interested party via the Trustee's Website or other
electronic means. The Trustee shall not be deemed to have made any
representations or warranties as to the accuracy or completeness of such
documents and will assume no responsibility therefor. In addition, the Trustee
may disclaim responsibility for any information distributed by it of which
information the Trustee is not the original source. In connection with providing
access to the Trustee's Website or electronic bulletin board, the Trustee may
require registration and the acceptance of a disclaimer. The Trustee shall not
be liable for the dissemination of information in accordance with this
Agreement; provided that this sentence shall not in any way limit the liability
the Trustee may otherwise have in performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if
required by federal regulation, of any Certificateholder that is a savings
association, bank, or insurance company, the Trustee shall provide (to the
extent in its possession) to each such Certificateholder such reports and access
to non-privileged information and documentation regarding the Mortgage Loans and
the Certificates as such Certificateholder may reasonably deem necessary to
comply with applicable regulations of the Office of Thrift Supervision or
successor or other regulatory authorities with respect to investment in the
Certificates; provided that the Trustee shall be entitled to be reimbursed by
such Certificateholder for the Trustee's actual expenses incurred in providing
such reports and access.
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall send to each Person who at any time during the
calendar year was a Certificateholder of record, a report summarizing the items
(in clauses (i), (ii) and (xi) of the definition of Monthly Certificateholders
Report) provided to Certificateholders pursuant to this Section 5.4 on an annual
basis and such other customary information as the Trustee deems may be necessary
or desirable for such Holders to prepare their federal income tax returns.
(d) On each Distribution Date, the Trustee shall provide to
the Placement Agents, the Underwriters, the Rating Agencies, the Depositor, the
Operating Adviser, the Master Servicer, the Special Servicer, the Primary
Servicers, the Trustee, the Fiscal Agent, anyone the Depositor or either
Placement Agent or Underwriter reasonably designates, and upon request to any
Certificateholder, Certificate Owner (as identified by such Certificate Owner)
or prospective Certificate Owner (as identified to the Trustee by any existing
Certificateholder or Certificate Owner), a report substantially in the form of
Exhibit Q (which shall be made available electronically as the Trustee may
determine from time to time) with the information contained therein updated to
the date of such report.
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(e) The Trustee shall afford the Rating Agencies, the
Depositor, the Master Servicer, the Special Servicer, the Primary Servicers, the
Trustee, the Fiscal Agent, the Operating Adviser, any Certificateholder,
prospective Certificate Owner or any Person reasonably designated by either
Placement Agent, or any Underwriter upon reasonable notice and during normal
business hours, reasonable access to all relevant, non-attorney privileged
records and documentation regarding the applicable Mortgage Loans, REO Property
and all other relevant matters relating to this Agreement, and access to
Responsible Officers of the Trustee.
(f) Copies (or computer diskettes or other digital or
electronic formats of such information if reasonably available in lieu of paper
copies) of any and all of the foregoing items of this Section 5.4 shall be made
available by the Trustee upon request; provided, however, that the Trustee shall
be permitted to require payment by the requesting party (other than the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent either Placement Agent or any Underwriter or any Rating Agency) of a sum
sufficient to cover the reasonable expenses actually incurred by the Trustee of
providing access or copies (including electronic or digital copies) of any such
information requested in accordance with the preceding sentence.
SECTION 5.5 TRUSTEE TAX REPORTS. The Trustee shall perform
all reporting and other tax compliance duties that are the responsibility of
each REMIC Pool under the Code, REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Consistent with this Pooling and Servicing Agreement, the Trustee shall provide
or cause to be provided (i) to the United States Treasury or other Persons
(including, but not limited to, the Transferor of a Class R-I, Class R-II or
Class R-III Certificate, to a Disqualified Organization or to an agent that has
acquired a Class R-I, Class R-II or Class R-III Certificate on behalf of a
Disqualified Organization) such information as is necessary for the application
of any tax relating to the transfer of a Class R-I, Class R-II or Class R-III
Certificate to any Disqualified Organization and (ii) to the Certificateholders
such information or reports as are required by the Code or REMIC Provisions. The
Master Servicer shall on a timely basis provide the Trustee with such
information concerning the Mortgage Loans as is necessary for the preparation of
the tax or information returns or receipts of each REMIC Pool as the Trustee may
reasonably request from time to time. The Special Servicer is required to
provide to the Master Servicer all information in its possession with respect to
the Specially Serviced Mortgage Loans in order for the Master Servicer to comply
with its obligations under this Section 5.5. The Trustee shall be entitled to
conclusively rely on any such information provided to it by the Master Servicer
or the Special Servicer and shall have no obligation to verify any such
information.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY. Subject to Section
10.2(a), respecting the final distribution on the Certificates, on each
Distribution Date, the Trustee shall (1) first, withdraw from the Distribution
Account and pay to the Fiscal Agent any unpaid fees, expenses and other amounts
then required to be paid pursuant to this Agreement, and then, to itself, any
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unpaid fees, expenses and other amounts then required to be paid pursuant to
this Agreement, and then at the written direction of the Master Servicer,
withdraw from the Distribution Account and pay to the Master Servicer, the
Primary Servicers and Special Servicer any unpaid servicing compensation or
other amounts currently required to be paid pursuant to this Agreement (to the
extent not previously retained or withdrawn by the Master Servicer from the
Certificate Account), and (2) second, make distributions in the manner and
amounts set forth below.
Each distribution to Holders of Certificates shall be made by
check mailed to such Holder's address as it appears on the Certificate Register
of the Certificate Registrar or, upon written request to the Trustee no later
than five days after the related Record Date (or upon standing instructions
given to the Trustee on the Closing Date or within five days after any Record
Date, which instructions may be revoked at any time thereafter upon written
notice to the Trustee five days after the related Record Date) made by a
Certificateholder by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder; provided, that (i)
remittances to the Trustee shall be made by wire transfer of immediately
available funds to the Distribution Account and the Reserve Account; and (ii)
the final distribution in respect of any Certificate shall be made only upon
presentation and surrender of such Certificate at such location specified by the
Trustee in a notice delivered to Certificateholders pursuant to Section 10.2(a).
If any payment required to be made on the Certificates is to be made on a day
that is not a Business Day, then such payment will be made on the next
succeeding Business Day without compensation for such delay. All distributions
or allocations made with respect to Holders of Certificates of a Class on each
Distribution Date shall be made or allocated among the outstanding Interests in
such Class in proportion to their respective initial Certificate Balances or
Percentage Interests for the Class X Certificates.
SECTION 6.2 REMIC I.
(a) On each Distribution Date, the Trustee shall be deemed to
distribute to itself, as holder of the REMIC I Regular Interests, for the
following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest collected or deemed collected on or with respect to
each Mortgage Loan or REO Property, Distributable Certificate Interest to each
Corresponding REMIC I Regular Interest;
(ii) from the portion of the Available Distribution Amount
attributable to principal collected or deemed collected on or with respect to
each Mortgage Loan or REO Property, principal to the Corresponding REMIC I
Regular Interest, until the Certificate Balance thereof is reduced to zero;
(iii) any remaining funds, to reimburse any Realized Losses
previously allocated to the REMIC I Regular Interests, plus interest on such
Realized Losses previously allocated thereto, compounded monthly at the
applicable Pass-Through Rates; and
(iv) thereafter, to the Class R-I Certificateholders.
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SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Trustee shall be deemed to
distribute to itself, as holder of the REMIC II Regular Interests, for the
following purposes and in the following order of priority:
(i) an amount equal to Distributable Certificate Interest for
the Class A-1 Certificates, Class A-2 Certificates and Class X Certificates to
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest B, REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II
Regular Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G,
REMIC II Regular Interest H, REMIC II Regular Interest J, REMIC II Regular
Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II
Regular Interest N, REMIC II Regular Interest O and REMIC II Regular Interest P,
divided among such REMIC II Regular Interests in proportion to (A) in the case
of the REMIC II Regular Interest A-1 and REMIC II Regular Interest A-2, the
Accrued Certificate Interest for such Distribution Date and (B) in the case of
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest J,
REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular
Interest M, REMIC II Regular Interest N, REMIC II Regular Interest O and REMIC
II Regular Interest P, the product of one-twelfth of the Certificate Balance of
such Interest and the sum of the related Class X Strip Rate (if any);
(ii) to the REMIC II Regular Interest A-1, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
the REMIC II Regular Interest A-1 has been reduced to zero;
(iii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest A-1, to the REMIC II Regular Interest A-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1), until
the Certificate Balance of the REMIC II Regular Interest A-2 has been reduced to
zero;
(iv) to REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F,
REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC Regular Interest
J, REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular
Interest M, REMIC II Regular Interest N, REMIC II Regular Interest O and REMIC
II Regular Interest P, pro rata on the basis of their respective entitlements to
reimbursement described in this clause (iv), to reimburse any Realized Losses
previously allocated to REMIC II Regular Interest A-1, REMIC II Regular Interest
A-2, REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest J,
REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular
Interest M, REMIC II Regular Interest N, REMIC II Regular Interest O and REMIC
II Regular Interest P as a result of the allocation of Realized
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Losses to the Class X Certificates plus interest on such Realized Losses
compounded monthly at one-twelfth of the applicable Pass-Through Rate;
(v) to the REMIC II Regular Interest B, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(vi) upon payment in full of the Certificate Balances of the
REMIC II Regular Interest A-2 and REMIC II Regular Interest A-2, to the REMIC II
Regular Interest B, the Principal Distribution Amount for such Distribution Date
(reduced by any portion thereof deemed to be distributed to the REMIC II Regular
Interest A-1 and REMIC II Regular Interest A-2), until the Certificate Balance
of the REMIC II Regular Interest B has been reduced to zero;
(vii) to the REMIC II Regular Interest B, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(viii) to the REMIC II Regular Interest C, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(ix) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest B, to the REMIC II Regular Interest C, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, and REMIC II Regular Interest B), until the Certificate Balance of
the REMIC II Regular Interest C has been reduced to zero;
(x) to the REMIC II Regular Interest C, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xi) to the REMIC II Regular Interest D, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest C, to the REMIC II Regular Interest D, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B and REMIC II Regular Interest C),
until the Certificate Balance of the REMIC II Regular Interest D has been
reduced to zero;
(xiii) to the REMIC II Regular Interest D, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
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(xiv) to the REMIC II Regular Interest E, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xv) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest D, to the REMIC II Regular Interest E, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C and REMIC II
Regular Interest D), until the Certificate Balance of the REMIC II Regular
Interest E has been reduced to zero;
(xvi) to the REMIC II Regular Interest E, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xvii) to the REMIC II Regular Interest F, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xviii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest E, to the REMIC II Regular Interest F, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C,
REMIC II Regular Interest D and REMIC II Regular Interest E), until the
Certificate Balance of the REMIC II Regular Interest F has been reduced to zero;
(xix) to the REMIC II Regular Interest F, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xx) to the REMIC II Regular Interest G, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xxi) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest F, to the REMIC II Regular Interest G, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E and REMIC II Regular Interest
F), until the Certificate Balance of the REMIC II Regular Interest G has been
reduced to zero;
(xxii) to the REMIC II Regular Interest G, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
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(xxiii) to the REMIC II Regular Interest H, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxiv) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest G, to the REMIC II Regular Interest H, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F and
REMIC II Regular Interest G), until the Certificate Balance of the REMIC II
Regular Interest H has been reduced to zero;
(xxv) to the REMIC II Regular Interest H, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xxvi) to the REMIC II Regular Interest J, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxvii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest H, to the REMIC II Regular Interest J, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G and REMIC II Regular Interest H), until
the Certificate Balance of the REMIC II Regular Interest J has been reduced to
zero;
(xxviii) to the REMIC II Regular Interest J, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xxix) to the REMIC II Regular Interest K, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxx) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest J to the REMIC II Regular Interest K, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F,
REMIC II Regular Interest G, REMIC II Regular Interest H and REMIC II Regular
Interest J), until the Certificate Balance of the REMIC II Regular Interest K
has been reduced to zero;
(xxxi) to the REMIC II Regular Interest K, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
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(xxxii) to the REMIC II Regular Interest L, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxiii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest K to the REMIC II Regular Interest L, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II
Regular Interest J and REMIC II Regular Interest K), until the Certificate
Balance of the REMIC II Regular Interest L has been reduced to zero;
(xxxiv) to the REMIC II Regular Interest L, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xxxv) to the REMIC II Regular Interest M, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxvi) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest L to the REMIC II Regular Interest M, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II
Regular Interest J, REMIC II Regular Interest K and REMIC II Regular Interest
L), until the Certificate Balance of the REMIC II Regular Interest M has been
reduced to zero;
(xxxvii) to the REMIC II Regular Interest M, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xxxviii) to the REMIC II Regular Interest N, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(xxxix) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest M to the REMIC II Regular Interest N, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II
Regular Interest J, REMIC II Regular Interest K, REMIC II Regular Interest L and
REMIC II Regular Interest M), until the Certificate Balance of the REMIC II
Regular Interest N has been reduced to zero;
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(xl) to the REMIC II Regular Interest N, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xli) to the REMIC II Regular Interest O, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xlii) upon payment in full of the Certificate Balance of the REMIC II
Regular Interest N to the REMIC II Regular Interest O, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F,
REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II Regular
Interest J, REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II
Regular Interest M, and REMIC II Regular Interest N), until the Certificate
Balance of the REMIC II Regular Interest O has been reduced to zero;
(xliii) to the REMIC II Regular Interest O, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate;
(xliv) to the REMIC II Regular Interest P, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xlv) upon payment in full of the Certificate Balance of the REMIC II
Regular Interest O to the REMIC II Regular Interest P, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F,
REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II Regular
Interest J, REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II
Regular Interest M, REMIC II Regular Interest N and REMIC II Regular Interest
O), until the Certificate Balance of the REMIC II Regular Interest P has been
reduced to zero;
(xlvi) to the REMIC II Regular Interest P, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable Pass-Through
Rate; and
(xlvii) thereafter, to the Class R-II Certificateholders.
SECTION 6.4 REMIC III.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account an amount equal to the Available Distribution Amount and
shall distribute such amount in the following amounts and order of priority:
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(i) to the Holders of the Class A-1 Certificates, Class A-2
Certificates and Class X Certificates, Distributable Certificate Interest for
such Distribution Date, pro rata in proportion to the Distributable Certificate
Interest payable to each such Class;
(ii) to the Holders of the Class A-1 Certificates, the Principal
Distribution Amount for such Distribution Date, until the Certificate Balance of
the Class A-1 Certificates has been reduced to zero;
(iii) upon payment in full of the Certificate Balance of the Class A-1
Certificates, to the Holders of the Class A-2 Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A-1 Certificates), until the Certificate
Balance of the Class A-2 Certificates has been reduced to zero;
(iv) to the Holders of the Class A Certificates and Class X
Certificates , pro rata, to reimburse any Realized Losses previously allocated
thereto plus interest on such Realized Losses compounded monthly at one-twelfth
the applicable Pass-Through Rate;
(v) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(vi) upon payment in full of the Certificate Balance of the Class A-2
Certificates, to the Holders of the Class B Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A Certificates), until the Certificate
Balance of the Class B Certificates has been reduced to zero;
(vii) to the Holders of the Class B Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate);
(viii) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(ix) upon payment in full of the Certificate Balance of the Class B
Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A and Class B Certificates), until the
Certificate Balance of the Class C Certificates has been reduced to zero;
(x) to the Holders of the Class C Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xi) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xii) upon payment in full of the Certificate Balance of the Class C
Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such
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Distribution Date (reduced by any portion thereof distributed to the Holders of
the Class A, Class B and Class C Certificates), until the Certificate Balance of
the Class D Certificates has been reduced to zero;
(xiii) to the Holders of the Class D Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xiv) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
(xv) upon payment in full of the Certificate Balance of the Class D
Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C and Class D
Certificates), until the Certificate Balance of the Class E Certificates has
been reduced to zero;
(xvi) to the Holders of the Class E Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xvii) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
(xviii) upon payment in full of the Certificate Balance of the Class E
Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D and Class E
Certificates), until the Certificate Balance of the Class F Certificates has
been reduced to zero;
(xix) to the Holders of the Class F Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xx) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxi) upon payment in full of the Certificate Balance of the Class F
Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E
and Class F Certificates), until the Certificate Balance of the Class G
Certificates has been reduced to zero;
(xxii) to the Holders of the Class G Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
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(xxiii) to the Holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiv) upon payment in full of the Certificate Balance of the Class G
Certificates, to the Holders of the Class H Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F and Class G Certificates), until the Certificate Balance of the Class H
Certificates has been reduced to zero;
(xxv) to the Holders of the Class H Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxvi) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution date;
(xxvii) upon payment in full of the Certificate Balance of the Class H
Certificates, to the Holders of the Class J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by a any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates), until the Certificate Balance of the
Class J Certificates has been reduced to zero;
(xxviii) to the Holders of the Class J Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxix) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distributable Date;
(xxx) upon payment in full of the Certificate Balance of the Class J
Certificates, to the Holders of the Class K Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class J Certificates), until the Certificate
Balance of the Class K Certificates has been reduced to zero;
(xxxi) to the Holders of the Class K Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxxii) to the Holders of the Class L Certificates, Distributable
Certificate Interest for such Distributable Date;
(xxxiii) upon payment in full of the Certificate Balance of the Class K
Certificates, to the Holders of the Class L Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J and Class K Certificates), until the
Certificate Balance of the Class L Certificates has been reduced to zero;
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(xxxiv) to the Holders of the Class L Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxxv) to the Holders of the Class M Certificates, Distributable
Certificate Interest for such Distributable Date;
(xxxvi) upon payment in full of the Certificate Balance of the Class L
Certificates, to the Holders of the Class M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K and Class L Certificates), until the
Certificate Balance of the Class M Certificates has been reduced to zero;
(xxxvii) to the Holders of the Class M Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxxviii) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distributable Date;
(xxxix) upon payment in full of the Certificate Balance of the Class M
Certificates, to the Holders of the Class N Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, and Class K, Class L, Class M Certificates),
until the Certificate Balance of the Class N Certificates has been reduced to
zero;
(xl) to the Holders of the Class N Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xli) to the Holders of the Class O Certificates, Distributable
Certificate Interest for such Distributable Date;
(xlii) upon payment in full of the Certificate Balance of the Class N
Certificates, to the Holders of the Class O Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class N
Certificates), until the Certificate Balance of the Class O Certificates has
been reduced to zero;
(xliii) to the Holders of the Class O Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xliv) to the Holders of the Class P Certificates, Distributable
Certificate Interest for such Distributable Date;
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(xlv) upon payment in full of the Certificate Balance of the Class O
Certificates, to the Holders of the Class P Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class
O Certificates), until the Certificate Balance of the Class O Certificates has
been reduced to zero;
(xlvi) to the Holders of the Class P Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate; and
(xlvii) to the Holders of the Class R-III Certificates at such time as
the Certificate Balances of all Classes of REMIC Regular Certificates have been
reduced to zero, and Realized Losses previously allocated to each Holder have
been reimbursed to the Holders of the REMIC Regular Certificates, any amounts
remaining on deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring on
or after the earliest date, if any, upon which the Certificate Balances of all
Classes of Subordinate Certificates have been reduced to zero or the aggregate
Appraisal Reduction in effect is greater than or equal to Certificate Balances
of all Classes of Subordinate Certificates, the Principal Distribution Amount
will be distributed, first, to the Holders of the Class A-1 and Class A-2
Certificates, pro rata, based on their respective Certificate Balances, in
reduction of their respective Certificate Balances, until the Certificate
Balance of each such Class is reduced to zero; and, second, to the Holders of
the Class A-1 and Class A-2 Certificates, pro rata, based on their respective
Certificate Balances, for the unreimbursed amount of Realized Losses and Expense
Losses previously allocated to such Classes.
(b) On each Distribution Date, the Trustee shall withdraw amounts in
the Reserve Account and shall pay the Certificateholders on such Distribution
Date such amounts in the following priority:
(i) first, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation) for any, and to the
extent of, Realized Losses or Expense Losses previously allocated to them; and
(ii) second, upon the reduction of the Aggregate Certificate Balance of
the Principal Balance Certificates to zero, to pay any amounts remaining on
deposit in such account to the Special Servicer as additional Special Servicer
compensation.
SECTION 6.5 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND
SHORTFALLS DUE TO NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized during the
related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest;
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(ii) Realized Interest Losses on each Mortgage Loan shall be allocated
to reduce first, Distributable Certificate Interest for such Distribution Date,
and then Unpaid Interest in each case owing on the Corresponding REMIC I Regular
Interest; and to the extent that such Realized Interest Loss exceeds such
amount, shall be treated as an Expense Loss;
(iii) Expense Losses (not otherwise applied above) realized during the
related Collection Period shall be allocated among the REMIC I Regular Interests
in proportion to their Certificate Balances after making all other allocations
for such Distribution Date.
(b) In the event that the Master Servicer, the Trustee or the Fiscal
Agent, determines that an Advance previously made by it is a Nonrecoverable
Advance and the Master Servicer withdraws the amount of such Advance from the
Certificate Account pursuant to Section 5.2(a) hereof (which amount shall be
treated as an Available Advance Reimbursement Amount pursuant to Section 4.6),
it shall determine the portion of the amount so withdrawn that is attributable
to (w) interest on the related Mortgage Loan; (x) principal on the related
Mortgage Loan; (y) Servicing Advances; and (z) Advance Interest. The portion of
the amount so withdrawn from the Certificate Account that is allocable to:
(i) amounts previously advanced as interest on the related Mortgage
Loan shall reduce the Available Distribution Amount for REMIC I and shall be
allocated to reduce the amount of interest paid on each REMIC I Regular Interest
on such Distribution Date in proportion to Distributable Certificate Interest
otherwise payable thereon, and shall result in Unpaid Interest on each such
REMIC I Regular Interest;
(ii) amounts previously advanced as principal on the related Mortgage
Loan shall reduce the Available Distribution Amount for REMIC I and shall be
allocated to reduce the principal paid on each REMIC I Regular Interest on which
principal would otherwise be paid on such Distribution Date, in proportion to
such principal payments; and
(iii) amounts previously advanced as Servicing Advances, as well as
Advance Interest owing to the Master Servicer, the Trustee or the Fiscal Agent
with respect to Advances shall be treated as Expense Losses and allocated in
accordance with Section 6.5(a)(iii) above.
(c) At such time as a Final Recovery Determination is made with respect
to any Mortgage Loan with respect to which the Master Servicer previously had
withdrawn amounts from the Certificate Account following a determination that
Advances previously made were Nonrecoverable Advances, or at such other time as
a Realized Loss shall occur with respect to any such Mortgage Loan, the Master
Servicer shall compute the Realized Loss with respect to such Mortgage Loan and
the Trustee shall allocate such Realized Loss as follows:
(i) to the extent that any Realized Principal Loss does not exceed the
Certificate Balance on the Corresponding REMIC I Regular Interest, such Realized
Principal Loss shall be allocated to such REMIC I Regular Interest; and to the
extent that any Realized Principal Loss exceeds the Certificate Balance of the
Corresponding REMIC I Regular Interest, such Realized Principal Loss shall be
allocated to the other Corresponding REMIC I Regular Interests with respect to
which distributions of principal were reduced pursuant to Section 6.5(b)(i)
above, in proportion to the amount of such reductions;
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(ii) any Realized Interest Loss shall be allocated to the Corresponding
REMIC I Interest to the extent of Unpaid Interest thereon and any remaining
portion of the Realized Interest Loss shall be allocated as a Realized Interest
Loss on each REMIC I Regular Interest with respect to which Unpaid Interest was
created pursuant to Section 6.5(b)(ii) above in proportion to the amount of
Unpaid Interest resulting from the reduction in distributions of interest on
such REMIC I Regular Interest pursuant to Section 6.5(b)(ii) above;
(iii) the portion of the amount recovered on the Mortgage Loan with
respect to which amounts were withdrawn from the Certificate Account that are
treated as Recoveries of principal on the Mortgage Loan shall be applied first,
to make payments of principal on the Corresponding REMIC I Regular Interest
until the Certificate Balance thereof is reduced to zero and thereafter to make
payments of principal to the Corresponding REMIC I Regular Interests with
respect to which principal distributions were reduced pursuant to Section
6.5(b)(i) above, in proportion to the amount of such reductions;
(iv) the portion of the amount recovered on the Mortgage Loan with
respect to which amounts were withdrawn from the Certificate Account that are
treated as Recoveries of interest on the Mortgage Loan shall be applied first,
to make payments of Unpaid Interest on the Corresponding REMIC I Regular
Interest and thereafter to make payments of interest on each REMIC I Interest
with respect to which Unpaid Interest was created pursuant to Section 6.5(b)(ii)
above in proportion to the amount of Unpaid Interest resulting from the
reduction in distributions of interest on such REMIC I Regular Interest pursuant
to Section 6.5(b)(ii) above; and
(v) the portion of the amount recovered on the Mortgage Loan with
respect to which amounts were withdrawn from the Certificate Account that is
treated as a recovery of expenses on the Mortgage Loan shall be applied in
reimbursement of Expense Losses on each REMIC I Regular Interest with respect to
which an Expense Loss was created pursuant to Section 6.5(b)(iii) above in
proportion to the amount of the Expense Loss allocated thereto pursuant to
Section 6.5(b)(iii) above.
(d) On each Distribution Date, all Realized Losses and Expense Losses
on the REMIC I Interests for such Distribution Date (or for prior Distribution
Dates, to the extent not previously allocated) shall be allocated to the
Corresponding REMIC II Regular Interests in the amounts and in the manner as
will be allocated to the REMIC Regular Certificates relating thereto pursuant to
Section 6.5(e). Realized Losses allocated to the Class X Certificates shall be
allocated among REMIC II Regular Interest A-1, REMIC II Regular Interest A-2,
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest J,
REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular
Interest M, REMIC II Regular Interest N, REMIC II Regular Interest O and REMIC
II Regular Interest P pro rata based on the product of the Certificate Balance
of such REMIC II Regular Interest and the Class X Strip Rate (if any) applicable
to the Class of Certificates relating to such REMIC II Regular Interest.
(e) REMIC III. On each Distribution Date, all Realized Losses on the
REMIC III Regular Interests for such Distribution Date (or for prior
Distribution Dates, to the
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extent not previously allocated) shall be allocated to the REMIC Regular
Certificates in Reverse Sequential Order, with such reductions being allocated
among the Class A-1 Certificates, Class A-2 Certificates and Class X
Certificates, pro rata, in each case reducing (A) the Certificate Balance of
such Class until such Certificate Balance is reduced to zero (in the case of the
Class A Certificates); (B) Unpaid Interest owing to such Class to the extent
thereof; and (C) Distributable Certificate Interest owing to such Class,
provided, that Realized Losses and Expense Losses shall not reduce the Aggregate
Certificate Balance of the REMIC Regular Certificates below the sum of the
Aggregate Certificate Balances of the REMIC II Regular Interests.
SECTION 6.6 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS. On
each Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in
REMIC I, shall be allocated among the REMIC I Regular Interests, pro rata in
proportion to the Accrued Certificate Interest for each such REMIC I Regular
Interest for such Distribution Date and shall reduce Distributable Certificate
Interest for each such Interest. On each Distribution Date, any Net Aggregate
Prepayment Interest Shortfalls in REMIC II shall be allocated among the REMIC II
Regular Interests, pro rata in proportion to the Accrued Certificate Interest
for each such REMIC II Regular Interest for such Distribution Date and shall
reduce Distributable Certificate Interest for each such Interest. On each
Distribution Date, the amount of any Net Aggregate Prepayment Interest
Shortfalls on the REMIC III Regular Interests in the aggregate shall be
allocated to each Class of Certificates, pro rata, in proportion to the amount
of Accrued Certificate Interest payable to such Class of Certificates on such
Distribution Date, in each case reducing interest otherwise payable thereon. The
amount of Net Aggregate Prepayment Interest Shortfalls allocated to a Class of
Certificates pursuant to the preceding sentence shall reduce the Distributable
Certificate Interest for such Class for such Distribution Date.
SECTION 6.7 ADJUSTMENT OF SERVICING FEES. The Master Servicing
Fee and Special Servicing Fee payable to the Master Servicer and the Special
Servicer, respectively, shall be adjusted as provided in Section 8.10(c) and
Section 9.11 herein. Any amount retained by REMIC I as a result of a reduction
of the Master Servicing Fee and the Special Servicing Fee shall be treated as
interest collected with respect to the prepaid Mortgage Loans with respect to
which the Master Servicing Fee or Special Servicing Fee adjustment occurs.
SECTION 6.8 APPRAISAL REDUCTIONS. Not later than the date on
which an Appraisal Event occurs, the Special Servicer shall have obtained (A) an
Appraisal of the Mortgaged Property securing such Mortgage Loan, if such
Principal Balance exceeds $1,000,000 or (B) at the option of the Special
Servicer, if such Principal Balance is less than or equal to $1,000,000, either
an internal valuation prepared by the Special Servicer in accordance with MAI
standards or an Appraisal which in all cases shall be completed as of the date
that such Mortgage Loan becomes a Required Appraisal Loan; provided that if the
Special Servicer had completed or obtained an Appraisal or internal valuation
within the immediately prior 12 months, the Special Servicer may rely on such
Appraisal or internal valuation and shall have no duty to prepare a new
Appraisal or internal valuation, unless such reliance would not be in accordance
with the Servicing Standard; provided, further, that if the Special Servicer is
required to obtain an MAI appraisal of a Mortgaged Property after receipt of the
notice described in clause (ii) of the definition of Appraisal Event, such
appraisal will be obtained no later than 60 days after receipt of such notice
and an internal valuation will be obtained no later than 30 days after receipt
of
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such notice. Such Appraisal or valuation shall be conducted in accordance
with the definition of "market value" as set forth in 12 C.F.R. ss. 225.65 and
shall be updated at least annually to the extent such Mortgage Loan remains a
Required Appraisal Loan. The cost of any such Appraisal or valuation, if not
performed by the Special Servicer, shall be an expense of the Trust and may be
paid from REO Income, treated as an Additional Trust Expense or, to the extent
collections from such related Mortgage Loan does not cover the expense, such
unpaid expense shall be advanced by the Master Servicer in which event it shall
be treated as a Servicing Advance, subject to Section 4.4 hereof. The Master
Servicer, based on the Appraisal or internal valuation provided to it by the
Special Servicer, shall calculate any Appraisal Reduction. The Master Servicer
shall calculate or recalculate the Appraisal Reduction for any Mortgage Loan
based on updated Appraisals or internal valuations provided from time to time to
it by the Special Servicer.
SECTION 6.9 COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
Notwithstanding any other provision of this Agreement to the contrary, the
Trustee shall comply with all federal withholding requirements with respect to
payments to Certificateholders of interest, original issue discount, or other
amounts that the Trustee reasonably believes are applicable under the Code. The
consent of Certificateholders shall not be required for any such withholding and
any amount so withheld shall be regarded as distributed to the related
Certificateholders for purposes of this Agreement. In the event the Trustee
withholds any amount from payments made to any Certificateholder pursuant to
federal withholding requirements, the Trustee shall indicate to such
Certificateholder the amount withheld.
SECTION 6.10 PREPAYMENT PREMIUMS. Any Prepayment Premium
collected with respect to a Mortgage Loan during any particular Collection
Period will be deemed distributed by the Trustee on the following Distribution
Date as follows: (i) first, the Trustee shall be deemed to distribute to itself,
as holder of the REMIC I Regular Interest to which such Mortgage Loan relates,
any Prepayment Premiums collected on or with respect to such Mortgage Loan; and
(ii) second, the Trustee shall be deemed to distribute to itself, as holder of
the REMIC II Regular Interests, any Prepayment Premiums deemed distributed to
the REMIC I Regular Interests, and shall be deemed to distribute such Prepayment
Premiums to the REMIC II Regular Interest then entitled to distributions of
principal from the Principal Distribution Amount (or, if more than one Class of
REMIC II Regular Interests is then entitled to distributions of principal from
the Principal Distribution Amount, such Prepayment Premiums shall be deemed
distributed among such Classes pro rata in accordance with the relevant amounts
of entitlements to distributions of principal). Following such deemed
distributions, the Holders of the respective Classes of Principal Balance
Certificates, other than the Class H, Class J, Class K, Class L, Class M, Class
N, Class O and Class P Certificates, then entitled to distributions of principal
from the Principal Distribution Amount for such Distribution Date, will be
entitled to, and the Trustee will pay to such Holder(s), an amount equal to, in
the case of each such Class, the lesser of (A) the amount of the Prepayment
Premium, and (B) (i) the amount of the Prepayment Premium multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is equal to the
excess, if any, of the Pass-Through Rate applicable to the most senior of such
Classes of Certificates then outstanding (or, if both Classes of Class A
Certificates are outstanding, the Class A-1 Certificates), over the relevant
Discount Rate, and the denominator of which is equal to the excess, if any, of
the Mortgage Rate of the Mortgage Loan that prepaid over the relevant
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Discount Rate. If there is more than one such Class of Principal Balance
Certificates entitled to distributions of principal on such Distribution Date,
the aggregate amount described in the preceding sentence will be allocated among
such Classes on a pro rata basis in accordance with the relative amounts of
entitlement to such distributions of principal. Any portion of such Prepayment
Premium that is not so distributed to the Holders of such Principal Balance
Certificates will be distributed to the Holders of the Class X Certificates.
ARTICLE VII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
SECTION 7.1 DUTIES OF TRUSTEE AND THE FISCAL AGENT.
(a) The Trustee and the Fiscal Agent each shall undertake to
perform only those duties as are specifically set forth in this Agreement and no
implied covenants or obligations shall be read into this Agreement against the
Trustee or the Fiscal Agent. Any permissive right of the Trustee or the Fiscal
Agent provided for in this Agreement shall not be construed as a duty of the
Trustee or the Fiscal Agent. The Trustee and the Fiscal Agent each shall
exercise such of the rights and powers vested in it by this Agreement and
following the occurrence and during the continuation of any Event of Default
hereunder, the Trustee each shall use the same degree of care and skill in its
exercise as a prudent Person would exercise or use under the circumstances in
the conduct of such Person's own affairs.
(b) The Trustee or the Fiscal Agent, as applicable, upon
receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee or the Fiscal
Agent, as the case may be, which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they on their face conform to the requirements of this Agreement;
provided that the Trustee or the Fiscal Agent, as the case may be, shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Master Servicer or any other Person to it pursuant to this Agreement. If any
such instrument is found on its face not to conform to the requirements of this
Agreement, the Trustee shall request the providing party to correct the
instrument and if not so corrected, the Trustee shall inform the
Certificateholders.
(c) Neither the Trustee nor the Fiscal Agent nor any of their
respective directors, officers, employees, agents or Controlling Persons shall
have any liability to the Trust or the Certificateholders arising out of or in
connection with this Agreement, except for their respective negligence or
willful misconduct. No provision of this Agreement shall be construed to relieve
the Trustee, the Fiscal Agent or any of their respective directors, officers,
employees, agents or Controlling Persons from liability for their own negligent
action, their own negligent failure to act or their own willful misconduct or
bad faith; provided that:
(i) neither the Trustee nor the Fiscal Agent nor any of their
respective directors, officers, employees, agents or Controlling Persons shall
be personally liable with respect to any action taken, suffered or omitted to be
taken by it in its reasonable business
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judgment in accordance with this Agreement or at the direction of Holders of
Certificates evidencing not less than a majority of the outstanding Certificate
Balance of the Certificates;
(ii) no provision of this Agreement shall require either the
Trustee or the Fiscal Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it;
(iii) neither the Trustee, the Fiscal Agent nor any of their
respective directors, officers, employees, agents or Controlling Persons shall
be responsible for any act or omission of the Master Servicer, the Special
Servicer, the Depositor or either Seller, or for the acts or omissions of each
other, including, without limitation, in connection with actions taken pursuant
to this Agreement;
(iv) the execution by the Trustee of any forms or plans of
liquidation in connection with any REMIC Pool shall not constitute a
representation by the Trustee as to the adequacy of such form or plan of
liquidation;
(v) none of the Trustee or the Fiscal Agent shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties as Trustee or the Fiscal Agent , as applicable in
accordance with this Agreement. In such event, all legal expense and costs of
such action shall be expenses and costs of the Trust, and the Trustee and the
Fiscal Agent shall be entitled to be reimbursed therefor from the Certificate
Account pursuant to Section 5.2(a)(vi); and
(vi) neither the Trustee nor the Fiscal Agent shall be charged
with knowledge of any failure by the Master Servicer or the Special Servicer or
by each other to comply with its obligations under this Agreement or any act,
failure, or breach of any Person upon the occurrence of which the Trustee or the
Fiscal Agent may be required to act, unless a Responsible Officer of the Trustee
or the Fiscal Agent, as the case may be, obtains actual knowledge of such
failure.
(d) The Trustee represents that it will use commercially
reasonable efforts to cure (by August 1999) any deficiencies with regards to the
manipulation or calculation of dates beyond December 31, 1999 in the internally
maintained computer software systems used by the Trustee in the conduct of its
trust business which would materially and adversely affect its ability to
perform its obligations under this Agreement. The Trustee further represents
that it will use reasonable commercial efforts to obtain reasonable assurances
from each third party vendor of licensed computer software systems used by the
Trustee in the conduct of its trust business that such vendors shall use
reasonable commercial efforts to cure any deficiencies with regards to the
manipulation or calculation of dates beyond December 31, 1999 in such systems
which would materially and adversely affect the ability of the Trustee to
perform its obligations under this Agreement.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE
FISCAL AGENT.
(a) Except as otherwise provided in Section 7.1:
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(i) the Trustee and the Fiscal Agent each may request, and may
rely and shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Trustee and the Fiscal Agent each may consult with
counsel and the advice of such counsel and any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(iii) neither the Trustee nor the Fiscal Agent nor any of
their respective directors, officers, employees, agents or Controlling Persons
shall be personally liable for any action taken, suffered or omitted by such
Person in its reasonable business judgment and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(iv) the Trustee shall not be under any obligation to exercise
any remedies after default as specified in this Agreement or to institute,
conduct or defend any litigation hereunder or relating hereto or make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document (provided the same appears regular on
its face), unless requested in writing to do so by Holders of at least 25% of
the Aggregate Certificate Balance of the Certificates then outstanding provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in connection with the
foregoing is, in the opinion of such Person not reasonably assured to such
Person by the security afforded to it by the terms of this Agreement, such
Person may require reasonable indemnity against such expense or liability or
payment of such estimated expenses as a condition to proceeding. The reasonable
expenses of the Trustee shall be paid by the Certificateholders requesting such
examination;
(v) the Trustee and the Fiscal Agent each may execute any of
the trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys, which agents or attorneys shall have any
or all of the rights, powers, duties and obligations of the Trustee and the
Fiscal Agent conferred on them by such appointment; provided that each of the
Trustee and the Fiscal Agent, as the case may be, shall continue to be
responsible for its duties and obligations hereunder and shall not be liable for
the actions or omissions of the Master Servicer, the Special Servicer, the
Depositor or the actions or omissions of each other;
(vi) neither the Trustee nor the Fiscal Agent shall be
required to obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Fiscal Agent shall be
required to expend its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such liability is not assured to it;
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(viii) neither the Trustee nor the Fiscal Agent shall be
liable for any loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither
the Trustee nor the Fiscal Agent shall be required to post any surety or bond of
any kind in connection with the execution or performance of its duties
hereunder; and
(x) except as specifically provided hereunder in connection
with the performance of its specific duties, neither the Trustee nor the Fiscal
Agent shall be responsible for any act or omission of the Master Servicer, the
Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept
any contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the
amount of any and all federal, state and local taxes imposed on the Trust or its
assets or transactions including, without limitation, (A) "prohibited
transaction" penalty taxes as defined in Section 860F of the Code, if, when and
as the same shall be due and payable, (B) any tax on contributions to a REMIC
after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, but only if such taxes arise out of a breach by the Trustee of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Trustee.
SECTION 7.3 THE TRUSTEE AND THE FISCAL AGENT NOT LIABLE FOR
CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee and the Fiscal Agent
each makes no representations as to the validity or sufficiency of this
Agreement, the information contained in the Private Placement Memorandum, the
Preliminary Prospectus Supplement or Final Prospectus Supplement for the REMIC
III Certificates or Residual Certificates (other than the Certificate of
Authentication on the Certificates if the Trustee is the Authenticating Agent)
or of any Mortgage Loan, Assignment of Mortgage or related document save that
(i) each of the Trustee and the Fiscal Agent represents that, assuming due
execution and delivery by the other parties hereto, this Agreement has been duly
authorized, executed and delivered by it and constitutes its valid and binding
obligation, enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law and (ii) the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its
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valid and binding obligation, enforceable against it in accordance with its
terms except that such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally, and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in equity
or at law. None of the Trustee or the Fiscal Agent shall be accountable for the
use or application by the Depositor or the Master Servicer or the Special
Servicer or by each other of any of the Certificates or any of the proceeds of
such Certificates, or for the use or application by the Depositor or the Master
Servicer or the Special Servicer or by each other of funds paid in consideration
of the assignment of the Mortgage Loans to the Trust or deposited into the
Distribution Account or any other fund or account maintained with respect to the
Certificates or any account maintained pursuant to this Agreement or for
investment of any such amounts. No recourse shall be had for any claim based on
any provisions of this Agreement, the Private Placement Memorandum, the
Preliminary Prospectus Supplement and Final Prospectus Supplement or the
Certificates (except with respect to the Trustee and Fiscal Agent to the extent
of information furnished by the Trustee and the Fiscal Agent under the caption
entitled "DESCRIPTION OF THE CERTIFICATES--The Trustee and the Fiscal Agent" in
the Preliminary Prospectus Supplement and Final Prospectus Supplement), the
Certificates, the Mortgage Loans or the assignment thereof against the Trustee
or the Fiscal Agent in such Person's individual capacity and any such claim
shall be asserted solely against the Trust or any indemnitor who shall furnish
indemnity as provided herein. Neither the Trustee nor the Fiscal Agent shall be
liable for any action or failure of any action by the Depositor or the Master
Servicer or the Special Servicer or by each other hereunder. Neither the Trustee
nor the Fiscal Agent shall at any time have any responsibility or liability for
or with respect to the legality, validity or enforceability of the Mortgages or
the Mortgage Loans, or the perfection and priority of the Mortgages or the
maintenance of any such perfection and priority, or for or with respect to the
efficacy of the Trust or its ability to generate the payments to be distributed
to Certificateholders under this Agreement, including, without limitation, the
existence, condition and ownership of any Mortgaged Property; the existence and
enforceability of any hazard insurance thereon; the validity of the assignment
of the Mortgage Loans to the Trust or of any intervening assignment; the
completeness of the Mortgage Loans; the performance or enforcement of the
Mortgage Loans (other than if the Trustee shall assume the duties of the Master
Servicer); the compliance by the Depositor, each Seller, the Mortgagor or the
Master Servicer or the Special Servicer or by each other with any warranty or
representation made under this Agreement or in any related document or the
accuracy of any such warranty or representation made under this Agreement or in
any related document prior to the receipt by a Responsible Officer of the
Trustee of notice or other discovery of any non-compliance therewith or any
breach thereof; any investment of monies by or at the direction of the Master
Servicer or the Special Servicer or any loss resulting therefrom; the failure of
the Master Servicer or any Sub-Servicer or the Special Servicer to act or
perform any duties required of it on behalf of the Trustee hereunder; or any
action by the Trustee taken at the instruction of the Master Servicer or the
Special Servicer.
SECTION 7.4 THE TRUSTEE AND THE FISCAL AGENT MAY OWN
CERTIFICATES. Each of the Trustee and the Fiscal Agent in its individual or any
other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not the Trustee, the Fiscal Agent, as the case
may be.
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SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE AND THE
FISCAL AGENT. The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC, (ii) a corporation, national bank or national banking
association authorized to exercise corporate trust powers, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority, and (iii) an institution whose
short-term debt obligations are at all times rated not less than "A-1" by S&P
and whose long-term senior unsecured debt is at all times rated not less than
"AA" by Fitch and S&P (unless a Fiscal Agent is appointed and acting hereunder
that has a long-term unsecured rating that is at least "AA" (without regard to
any plus or minus) by Fitch and S&P) or otherwise acceptable to the Rating
Agencies as evidenced by a Rating Agency Confirmation. If such corporation,
national bank or national banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section, the
combined capital and surplus of such corporation, national bank or national
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with provisions of
this Section, the Trustee or the Fiscal Agent shall resign immediately in the
manner and with the effect specified in Section 7.6.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE OR THE FISCAL AGENT.
(a) The Trustee or the Fiscal Agent may at any time resign
and be discharged from the trusts hereby created by giving written notice
thereof to the Depositor, the Master Servicer and the Rating Agencies; provided
that such resignation shall not be effective until its successor shall have
accepted the appointment. Upon receiving such notice of resignation, the
Depositor will promptly appoint a successor trustee or fiscal agent, as the case
may be, except in the case of the initial Trustee or Fiscal Agent, in which case
both shall be so replaced but may be replaced under this paragraph sequentially,
by written instrument, one copy of which instrument shall be delivered to the
resigning Trustee or the Fiscal Agent, one copy to the successor trustee and one
copy to each of the Master Servicer and the Rating Agencies. If no successor
trustee, or fiscal agent shall have been so appointed, as the case may be, and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee or the Fiscal Agent, as the case may be,
may petition any court of competent jurisdiction for the appointment of a
successor trustee or fiscal agent, as the case may be. It shall be a condition
to the appointment of a successor trustee or fiscal agent that such entity
satisfies the eligibility requirements set forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible
in accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), (iv) the continuation of the Trustee as such
would result in a downgrade,
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qualification or withdrawal of the rating by the Rating Agencies of any Class of
Certificates with a rating as evidenced in writing by the Rating Agencies or (v)
with respect with the initial Trustee, a Fiscal Agent Termination Event has
occurred unless the Trustee has satisfied the ratings required by clause (iii)
of Section 7.5, then the Depositor may remove such Trustee and appoint a
successor trustee by written instrument, one copy of which instrument shall be
delivered to the Trustee so removed, one copy to the successor trustee and one
copy to each of the Master Servicer and the Rating Agencies. In the case of
removal under clauses (i), (ii), (iii) and (iv) above, the Trustee shall bear
all such costs of transfer. Such succession shall take effect after a successor
trustee has been appointed. In the case of the removal of the initial Trustee,
the Depositor shall also remove the Fiscal Agent. In this case, the procedures
and liability for costs of such removal shall be the same as they are stated in
subsection (c) with respect to the Fiscal Agent.
(c) If at any time (i) the Fiscal Agent shall cease to be
eligible in accordance with the provisions of Section 7.5 and shall fail to
resign after written request therefor by the Depositor, or (ii) a Fiscal Agent
Termination Event has occurred, then the Depositor shall send a written notice
of termination to the Fiscal Agent (which notice shall specify the reason for
such termination) and remove such Fiscal Agent and appoint a successor Fiscal
Agent by written instrument, one copy of which instrument shall be delivered to
the Fiscal Agent so removed, one copy to the successor Fiscal Agent, and one
copy to each of the Trustee, the Master Servicer and the Rating Agencies. In all
such cases, the Fiscal Agent shall bear all costs of transfer to a successor
Fiscal Agent, such succession only to take effect after a successor Fiscal Agent
has been appointed. In the case of the initial Fiscal Agent, the Depositor may,
but is not required to, also remove the Trustee. In this case, the procedures
and liability for costs of such removal shall be the same as they are stated in
subsection (b) with respect to the Trustee.
(d) reserved.
(e) The Holders of more than 50% of the Aggregate Certificate
Balance of the Certificates then outstanding may for cause upon 30 days' written
notice to the Trustee or the Fiscal Agent, as the case may be, and to the
Depositor remove the Trustee or the Fiscal Agent, as the case may be, by such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor and
one copy to the Trustee or the Fiscal Agent, as the case may be, so removed; the
Depositor shall thereupon use its best efforts to appoint a successor Trustee or
Fiscal Agent, as the case may be, in accordance with this Section.
(f) Any resignation or removal of the Trustee or the Fiscal
Agent, as the case may be, and appointment of a successor trustee or fiscal
agent pursuant to any of the provisions of this Section shall become effective
upon acceptance of appointment by the successor trustee or fiscal agent, as the
case may be, as provided in Section 7.7. Upon any succession of the Trustee or
the Fiscal Agent under this Agreement, the predecessor Trustee or Fiscal Agent,
as the case may be, shall be entitled to the payment of compensation and
reimbursement agreed to under this Agreement for services rendered and expenses
incurred. The Trustee or the Fiscal Agent shall not be liable for any action or
omission of any successor Trustee or Fiscal Agent, as the case may be.
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SECTION 7.7 SUCCESSOR TRUSTEE OR FISCAL AGENT.
(a) Any successor Trustee or Fiscal Agent appointed as
provided in Section 7.6 shall execute, acknowledge and deliver to the Depositor
and to its predecessor Trustee or Fiscal Agent, as the case may be, an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee or Fiscal Agent, as the case may be, shall
become effective and such successor Trustee or Fiscal Agent, as the case may be,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Trustee or Fiscal Agent herein. The
predecessor Trustee or Fiscal Agent shall deliver (at such predecessor's own
expense) to the successor Trustee or Fiscal Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee or
Fiscal Agent, as the case may be, shall also deliver all records or copies
thereof maintained by the predecessor Trustee or Fiscal Agent in the
administration hereof as may be reasonably requested by the successor Trustee or
Fiscal Agent, as applicable, and shall thereupon be discharged from all duties
and responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or Fiscal Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or Fiscal Agent, as the
case may be, all such rights, powers, duties and obligations. Anything herein to
the contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee or Fiscal Agent shall accept
appointment as provided in this Section unless at the time of such appointment
such successor Trustee or Fiscal Agent, as the case may be, shall be eligible
under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or
Fiscal Agent as provided in this Section, the successor Trustee or Fiscal Agent
shall mail notice of the succession of such Trustee or Fiscal Agent hereunder to
all Holders of Certificates at their addresses as shown in the Certificate
Register and to the Rating Agencies. The expenses of such mailing shall be borne
by the successor Trustee or Fiscal Agent. If the successor Trustee or Fiscal
Agent fails to mail such notice within 10 days after acceptance of appointment
by the successor Trustee or Fiscal Agent, the Master Servicer shall cause such
notice to be mailed at the expense of the successor Trustee or Fiscal Agent, as
applicable.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE OR FISCAL
AGENT. Any Person into which the Trustee or Fiscal Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Trustee or Fiscal Agent shall
be a party, or any Persons succeeding to the business of such Trustee or Fiscal
Agent, shall be the successor of such Trustee or Fiscal Agent, as the case may
be, hereunder, as applicable, provided that such Person shall be eligible under
the provisions of Section 7.5, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
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SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE,
AGENTS OR CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time,
the Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer or Special Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders, shall have such powers, rights and remedies as shall
be specified in the instrument of appointment and shall be deemed to have
accepted the provisions of this Agreement; provided that no such appointment
shall, or shall be deemed to, constitute the appointee an agent of the Trustee;
provided, further that the Trustee shall be liable for the actions of any
co-trustee or separate trustee appointed by it and shall have no liability for
the actions of any co-trustee or separate trustee appointed by the Depositor or
the Certificateholders pursuant to this paragraph.
(b) The Trustee may from time to time appoint one or more
independent third-party agents to perform all or any portion of its
administrative duties hereunder (i.e., collection and distribution of funds,
preparation and dissemination of reports, monitoring compliance, etc.). The
Trustee shall supervise and oversee such agents appointed by it. The terms of
any arrangement or agreement between the Trustee and such agent, may be
terminated, without cause and without the payment of any termination fees in the
event the Trustee is terminated in accordance with this Agreement. In addition,
neither the Trust nor the Certificateholders shall have any liability or direct
obligation to such agent. Notwithstanding the terms of any such agreement, the
Trustee shall remain at all times obligated and liable to the Trust and the
Certificateholders for performing its duties hereunder.
(c) Every separate trustee, co-trustee, and custodian shall,
to the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder) the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and
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obligations, including the holding of title to the Trust or any portion thereof
in any such jurisdiction, shall be exercised and performed by such separate
trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(d) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any
time, constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to
the extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed pursuant to this Section
7.9 to the extent, and in accordance with the standards, specified in Section
7.12 hereof.
(i) Subject to the consent of the Depositor, which consent
shall not be unreasonably withheld, the Trustee may appoint at any time a
successor Custodian. Until such time as the Trustee appoints a successor
Custodian, the Trustee shall be the Custodian hereunder. Upon the appointment of
a successor custodian, the Trustee and the Custodian shall enter into a
custodial agreement.
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SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Trustee shall serve as the initial Authenticating
Agent hereunder for the purpose of executing and authenticating Certificates.
Any successor Authenticating Agent must be acceptable to the Depositor and must
be a corporation or national bank organized and doing business under the laws of
the United States of America or of any state and having a principal office and
place of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which the Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the
Authenticating Agent shall be a party, or any Person succeeding to the corporate
agency business of the Authenticating Agent, shall continue to be the
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving
at least 30 days' advance written notice of resignation to the Trustee (only if
the Trustee is not acting as Authenticating Agent) and the Depositor. The
Trustee may at any time terminate the agency of the Authenticating Agent by
giving written notice of termination to the Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time the Authenticating Agent shall cease to be eligible in
accordance with the provisions of Section 7.10(a), the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No such Authenticating Agent shall be
appointed unless eligible under the provisions of Section 7.10(a). No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
SECTION 7.11 INDEMNIFICATION OF TRUSTEE AND THE FISCAL AGENT.
(a) The Trustee and the Fiscal Agent and each of its
respective directors, officers, employees, agents and Controlling Persons shall
be entitled to indemnification from the Trust for any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgements and any
other costs, liabilities, fees and expenses incurred in connection with any
legal action incurred without negligence or willful misconduct on their
respective part, arising out of, or in connection with this Agreement, the
Certificates and the acceptance or administration of the trusts or duties
created hereunder (including, without limitation, any unanticipated loss,
liability or expense incurred in connection with any action or inaction of the
Master Servicer, the Special Servicer or the Depositor or of each other such
Person hereunder but only to the extent the Trustee or the Fiscal Agent, as the
case may be, is unable to recover within a reasonable period of time such amount
from such third party pursuant to this Agreement) including the costs and
expenses of defending themselves against any claim in connection with the
exercise or performance of any of their powers or duties hereunder and the
Trustee and the
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Fiscal Agent and each of their respective directors, officers, employees, agents
and Controlling Persons shall be entitled to indemnification from the Trust for
any unanticipated loss, liability or expense incurred in connection with the
provision by the Trustee and the Fiscal Agent of the reports required to be
provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee or the Fiscal
Agent, as the case may be, shall have given the Depositor, the Master Servicer,
the Sellers, each other and the Holders of the Certificates written notice
thereof promptly after a Responsible Officer of the Trustee or the Fiscal Agent,
as the case may be, shall have knowledge thereof; provided, however that failure
to give such notice to the Depositor, Master Servicer, the Sellers, each other
and the Holders of Certificates shall not affect the Trustee's or Fiscal
Agent's, as the case may be, rights to indemnification herein unless the
Depositor's defense of such claim on behalf of the Trust is materially
prejudiced thereby;
(ii) while maintaining control over its own defense, the
Trustee or the Fiscal Agent, as the case may be, shall cooperate and consult
fully with the Depositor in preparing such defense; and
(iii) notwithstanding anything to the contrary in this Section
7.11, the Trust shall not be liable for settlement of any such claim by the
Trustee or the Fiscal Agent, as the case may be, entered into without the prior
consent of the Depositor, which consent shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any
termination of this Agreement and the resignation or removal of the Trustee or
the Fiscal Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the
Trustee or the Fiscal Agent, as the case may be, their respective directors,
officers, employees or agents and Controlling Persons from and against any loss,
claim, damage or liability, joint or several, and any action in respect thereof,
to which the Trustee or the Fiscal Agent, as the case may be, their respective
directors, officers, employees or agents or Controlling Person may become
subject under the 1933 Act, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Private Placement Memorandum, in
the Preliminary Prospectus Supplement or Final Prospectus Supplement, or arises
out of, or is based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made, not misleading
and shall reimburse the Trustee, or the Fiscal Agent, as the case may be, their
respective directors, officers, employees, agents or Controlling Person for any
legal and other expenses reasonably incurred by the Trustee or the Fiscal Agent,
as the case may be, or any such director, officer, employee, agent or
Controlling Person in investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action; provided, that the Depositor
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission made in any such Private
Placement Memorandum, Preliminary Prospectus Supplement or Final Prospectus
Supplement in reliance upon and in conformity with written information
concerning the Trustee or the Fiscal Agent, as the case may be, furnished to the
Depositor by or on behalf of such person specifically for
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inclusion therein. It is hereby expressly agreed that the only written
information provided by the Trustee or the Fiscal Agent, as the case may be, for
inclusion in the Preliminary Prospectus Supplement and Final Prospectus
Supplement is set forth in the case of the Trustee in the second, fourth and
fifth sentences and in the case of the Fiscal Agent in the penultimate sentence
under the caption entitled "DESCRIPTION OF THE CERTIFICATES--The Trustee and the
Fiscal Agent". The Trustee or the Fiscal Agent, as the case may be, shall
immediately notify the Depositor and the Sellers if a claim is made by a third
party with respect to this Section 7.11(c) entitling such person, its directors,
officers, employees, agents or Controlling Person to indemnification hereunder,
whereupon the Depositor shall assume the defense of any such claim (with counsel
reasonably satisfactory to such person) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Depositor shall not affect any rights the
Trustee or the Fiscal Agent, as the case may be, their respective directors,
officers, employees, agents or Controlling Person may have to indemnification
under this Section 7.11(c), unless the Depositor's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the resignation or removal of the Trustee
or the Fiscal Agent.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE AND THE FISCAL
AGENT. The Trustee shall be entitled to receive the Trustee Fee pursuant to
Section 5.3(b)(ii) (which shall not be limited by any provision of law with
respect to the compensation of a trustee of an express trust), for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties respectively, hereunder of the
Trustee. The Trustee and the Fiscal Agent shall also be entitled to recover from
the Trust all reasonable unanticipated expenses and disbursements incurred or
made by the Trustee and the Fiscal Agent in accordance with any of the
provisions of this Agreement (including the reasonable compensation and the
reasonable expenses and disbursements of its counsel and other Persons not
regularly in its employ), not including expenses incurred in the ordinary course
of performing its duties as Trustee or Fiscal Agent, respectively hereunder, and
except any such expense, disbursement or advance as may arise from the
negligence or bad faith of such Person or which is the responsibility of the
Holders of the Certificates hereunder. The provisions of this Section 7.12 shall
survive any termination of this Agreement and the resignation or removal of the
Trustee or the Fiscal Agent.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise
expressly provided in this Agreement, the Trustee may demand payment or delivery
of, and shall receive and collect, all money and other property payable to or
receivable by the Trustee pursuant to this Agreement. The Trustee shall hold all
such money and property received by it as part of the Trust and shall distribute
it as provided in this Agreement. If the Trustee shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Master
Servicer, the Trustee shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee
shall subsequently receive any such amount, it may withdraw such request.
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SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Master Servicer is terminated
pursuant to this Agreement, the Trustee shall be the successor in all respects
to the Master Servicer in its capacity under this Agreement and the transactions
set forth or provided for therein and shall have all the rights and powers and
be subject to all the responsibilities, duties and liabilities relating thereto
and arising thereafter placed on the Master Servicer by the terms and provisions
of this Agreement; provided that, any failure to perform such duties or
responsibilities caused by the Master Servicer's failure to provide required
information shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Master Servicer contained in this
Agreement or (ii) any obligation incurred by the Master Servicer prior to its
termination or resignation (including, without limitation, the Master Servicer's
obligation to repay losses resulting from the investment of funds in any account
established under this Agreement), except any ongoing obligations to the Primary
Servicers arising after the termination of the Master Servicer from their
servicing rights and obligations under the applicable Primary Servicing
Agreement. In the Trustee's capacity as such successor, the Trustee shall have
the same limitations on liability granted to the Master Servicer in this
Agreement. As compensation therefor, the Trustee shall be entitled to receive
all the compensation payable to the Master Servicer set forth in this Agreement,
including, without limitation, the Master Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the
Trustee is unwilling to so act, or (B) shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint any
established commercial or multifamily mortgage finance institution, servicer or
special servicer or mortgage servicing institution having a net worth of not
less than $15,000,000, meeting such other standards for a successor servicer as
are set forth in this Agreement and with respect to which Rating Agency
Confirmation is obtained, as the successor to the Master Servicer hereunder in
the assumption of all of the responsibilities, duties or liabilities of a
servicer as Master Servicer hereunder. Pending any such appointment, the Trustee
shall act in such capacity as hereinabove provided. Any entity designated by the
Trustee as successor Master Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for the Master Servicer as
set forth herein. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree subject to
Section 8.10. The Trustee and such successor shall take such actions, consistent
with this Agreement as shall be necessary to effectuate any such succession. The
Master Servicer shall cooperate with the Trustee and any successor servicer in
effecting the termination of the Master Servicer's responsibilities and rights
under this Agreement, including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee and successor
servicer all documents and records in its possession in electronic or other form
reasonably requested by the successor servicer to enable the successor servicer
to assume the Master Servicer's functions hereunder and the transfer to the
Trustee or such successor servicer of all amounts which shall at the time be or
should have been deposited by the Master Servicer in the Certificate Account and
any other account or fund maintained with respect to the Certificates or
thereafter be received by the Master Servicer with respect to the Mortgage
Loans. Neither the Trustee nor any other successor servicer shall be deemed to
be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof
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caused by (i) the failure of the Master Servicer to deliver, or any delay in
delivering, cash, documents or records to it, or (ii) restrictions imposed by
any regulatory authority having jurisdiction over the Master Servicer. The
Trustee shall be reimbursed for all of its out-of-pocket expenses incurred in
connection with obtaining such successor Master Servicer by the Trust within 30
days of the Trustee's submission of an invoice with respect thereto, to the
extent such expenses have not been reimbursed by the Master Servicer as provided
herein; such expenses paid by the Trust shall be deemed to be an Additional
Trust Expense.
(c) On and after the time the Special Servicer is terminated
pursuant to this Agreement, in accordance with Section 9.30, the Trustee shall
be the successor in all respects to the Special Servicer in its capacity under
this Agreement and the transactions set forth or provided for therein and shall
have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on the
Special Servicer by the terms and provisions of this Agreement; provided that,
any failure to perform such duties or responsibilities caused by the Special
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of the Special
Servicer contained in this Agreement or (ii) any obligation incurred by the
Special Servicer prior to its termination or resignation. In the Trustee's
capacity as such successor, the Trustee shall have the same limitations on
liability granted to the Special Servicer in this Agreement. As compensation
therefor, the Trustee shall be entitled to receive all the compensation payable
to the Special Servicer set forth in this Agreement, including, without
limitation the Special Servicer Compensation.
(d) Notwithstanding the above, the Trustee may, if the
Trustee shall be unwilling to so act, or shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint, any
established commercial or multifamily mortgage finance institution, special
servicer or mortgage servicing institution having a net worth of not less than
$15,000,000, and meeting such other standards for a successor Special Servicer
as are set forth in Section 9.21, and with respect to which Rating Agency
Confirmation is obtained, as the successor to the Special Servicer hereunder in
the assumption of all of the responsibilities, duties or liabilities of a
special servicer as Special Servicer hereunder. Pending any such appointment,
the Trustee shall act in such capacity as hereinabove provided. Any entity
designated by the Trustee as successor Special Servicer may be an Affiliate of
the Trustee; provided that, such Affiliate must meet the standards for a
successor Special Servicer set forth herein. In connection with such appointment
and assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree; provided that no such compensation shall be in excess of that permitted
to the Special Servicer under this Agreement. The Trustee and such successor
shall take such actions, consistent with this Agreement as shall be necessary to
effectuate any such succession. The Special Servicer shall cooperate with the
Trustee and any successor Special Servicer in effecting the termination of the
Special Servicer's responsibilities and rights under this Agreement, including,
without limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of
the assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions hereunder and the transfer to the Trustee or such successor
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Special Servicer of all amounts which shall at the time be or should have been
deposited by the Special Servicer in the Certificate Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received by the Special Servicer with respect to the Mortgage Loans. Neither the
Trustee nor any other successor Special Servicer shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
Special Servicer to deliver, or any delay in delivering, cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over the Special Servicer. The Trustee shall be reimbursed for all
of its out-of-pocket expenses incurred in connection with obtaining such
successor Special Servicer by the Trust within 30 days of submission of an
invoice with respect thereto but only to the extent such expenses have not been
reimbursed by the Special Servicer as provided herein; and such expenses paid by
the Trust shall be deemed to be an Additional Trust Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of the
Master Servicer or the Special Servicer, or appointment of a successor to the
Master Servicer or the Special Servicer, the Trustee shall promptly mail notice
thereof by first class mail to the Rating Agencies, the Sellers and the
Certificateholders at their respective addresses appearing on the Certificate
Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE AND
THE FISCAL AGENT.
(a) The Trustee hereby represents and warrants as of the
Closing Date that:
(i) the Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this
Agreement have been duly authorized by all necessary action on the part of the
Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Trustee
or its properties that would materially and adversely affect the Trustee's
ability to perform its obligations under this Agreement, (ii) the organizational
documents of the Trustee, or (iii) the terms of any material agreement or
instrument to which the Trustee is a party or by which it is bound; the Trustee
is not in default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or other governmental
agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) the execution, delivery and performance by the Trustee
of this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be
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obtained, given, effected or taken in order for the Trustee to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by
the Trustee and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally as from
time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and
(v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee to perform under
the terms of this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of the
Closing Date that:
(i) the Fiscal Agent is a foreign banking corporation duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, and to enter into and
perform its obligations under this Agreement;
(ii) the execution and delivery by the Fiscal Agent of this
Agreement have been duly authorized by all necessary corporate action on the
part of the Fiscal Agent; neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or result
in a breach of, or constitute a default under, (i) any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on the
Fiscal Agent or its properties that would materially and adversely affect the
Fiscal Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Fiscal Agent, or (iii) the terms of any material
agreement or instrument to which the Fiscal Agent is a party or by which it is
bound; the Fiscal Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Fiscal
Agent of this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or order of,
the giving of notice to, or the registration with, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by
the Fiscal Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Fiscal
Agent, enforceable against the Fiscal Agent in
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accordance with its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium and other similar laws
affecting creditors' rights generally as from time to time in effect, and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to the Fiscal Agent's
knowledge, threatened, against the Fiscal Agent that, either in any one instance
or in the aggregate, would draw into question the validity of this Agreement, or
which would be likely to impair materially the ability of the Fiscal Agent to
perform under the terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE TRUSTEE AND THE FISCAL AGENT. Each of the Trustee and
the Fiscal Agent, at its own respective expense, shall maintain in effect a
Fidelity Bond and a Errors and Omissions Insurance Policy. The Errors and
Omissions Insurance Policy and Fidelity Bond shall be issued by a Qualified
Insurer in form and in amount customary for trustees or fiscal agents in similar
transactions (unless the Trustee or the Fiscal Agent, as the case may be, self
insures as provided below). In the event that any such Errors and Omissions
Insurance Policy or Fidelity Bond ceases to be in effect, the Trustee or the
Fiscal Agent, as the case may be, shall obtain a comparable replacement policy
or bond from an insurer or issuer meeting the requirements set forth above as of
the date of such replacement. So long as the long-term debt rating of the
Trustee or the Fiscal Agent, as the case may be, is not less than two rating
categories (ignoring pluses or minuses) lower than the highest rating of the
Certificates, but in any event not less than "A" as rated by Fitch, if rated by
Fitch and "BBB" as rated by S&P, if rated by S&P, respectively, the Trustee or
the Fiscal Agent, as the case may be, may self-insure for the Fidelity Bond and
the Errors and Omissions Insurance Policy.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for
and on behalf of the Trust and for the benefit of the Certificateholders as a
whole, the Master Servicer shall service and administer the Mortgage Loans in
accordance with the Servicing Standard and the terms of this Agreement.
In connection with such servicing and administration, the
Master Servicer shall seek to maximize the timely recovery of principal and
interest on the Mortgage Notes in the best economic interests of the
Certificateholders as a whole; provided, however, that nothing herein contained
shall be construed as an express or implied guarantee by the Master Servicer of
the collectibility of payments on the Mortgage Loans or shall be construed as
impairing or adversely affecting any rights or benefits specifically provided by
this Agreement to the Master Servicer, including with respect to Master
Servicing Fees or the right to be reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified in
clause (x) of this subclause (b), and the Special Servicer, in the case of an
event specified in clause (y) of this
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subclause (b), shall each send a written notice to the other and to the Trustee
and each Seller within two Business Days after becoming aware (x) that a
Servicing Transfer Event has occurred with respect to a Mortgage Loan or (y)
that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice
shall identify the applicable Mortgage Loan and, in the case of an event
specified in clause (x) of this subclause (b) above, the Servicing Transfer
Event that occurred.
(c) The Master Servicer covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by the Master
Servicer and used by the Master Servicer in the course of operation or
management of, or the compiling, reporting or generation of date required by
this Agreement will not contain any deficiency (x) in the ability of such
software or hardware to identify correctly or perform calculations or other
processing with respect to dates after December 31, 1999 or (y) that would cause
such software to be fit no longer for the purpose for which it was intended by
reason of the changing of the date from 1999 to 2000.
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE MASTER SERVICER. The Master Servicer, at its expense,
shall maintain in effect a Servicer Fidelity Bond and a Servicer Errors and
Omissions Insurance Policy. The Servicer Errors and Omissions Insurance Policy
and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the
Master Servicer self insures as provided below) and be in form and amount
consistent with the Servicing Standard. In the event that any such Servicer
Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in
effect, the Master Servicer shall obtain a comparable replacement policy or bond
from an insurer or issuer meeting the requirements set forth above as of the
date of such replacement. So long as the long-term rating of the Master Servicer
is not less than two rating categories (ignoring pluses or minuses) lower than
the highest rating of the Certificates, but in any event not less than "A" as
rated by Fitch and "BBB" as rated by S&P, respectively, the Master Servicer may
self-insure for the Servicer Fidelity Bond and the Servicer Errors and Omissions
Insurance Policy.
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The Master Servicer shall service and administer the
Mortgage Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article
XII hereof and as otherwise provided herein and by the Code, have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration in accordance with the
Servicing Standard. To the extent consistent with the foregoing and subject to
any express limitations and provisions set forth in this Agreement, the Master
Servicer shall have full power and authority with respect to each Mortgage Loan
and Mortgaged Property (other than any Specially Serviced Mortgaged Loan and the
related Mortgaged Property or any REO Property) to do or cause to be done any
and all things that it may deem necessary or desirable in connection with such
servicing and administration, including but not limited to, the power and
authority, subject to the terms hereof, (A) to execute and deliver, on behalf of
the Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents (including, without limitation, estoppel certificates,
financing statements, continuation statements, title endorsements and reports
and other documents and instruments necessary to preserve and maintain the lien
on the related Mortgaged Property and related
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collateral), (B) to consent to assignments and assumptions or substitutions, and
transfers of interest of any Mortgagor, in each case subject to and in
accordance with the terms of the related Mortgage Loan and Section 8.7, (C) to
collect any Insurance Proceeds and Liquidation Proceeds, (D) subject to Section
8.7, to consent to any subordinate financings to be secured by any related
Mortgaged Property to the extent that such consent is required pursuant to the
terms of the related Mortgage or which otherwise is required and to administer
and monitor the application of such proceeds and awards in accordance with the
terms of the Mortgage Loan as the Master Servicer deems reasonable under the
circumstances, (E) to consent to the application of any proceeds of insurance
policies or condemnation awards to the restoration of the related Mortgaged
Property or otherwise, (F) to bring an action in a court of law or equity to
enforce rights of the Trustee and the Certificateholders with respect to the
related Mortgaged Properties, (G) to execute and deliver, on behalf of the
Certificateholders and the Trustee, documents relating to the management,
operation, maintenance, repair, leasing and marketing of the related Mortgaged
Properties, including agreements and requests by the Mortgagor with respect to
modifications of the standards of operation and management of the Mortgaged
Properties or the replacement of asset managers, (H) to consent to any operation
or action under a Mortgage Loan that is contemplated or permitted under a
Mortgage or other documents evidencing or securing the applicable Mortgage Loan
(either as a matter of right or upon satisfaction of specified conditions), (I)
to obtain, release, waive or modify any term other than a Money Term of a
Mortgage Loan and related documents subject to and to the extent permitted by
Section 8.18, (J) to exercise all rights, powers and privileges granted or
provided to the holder of the Mortgage Notes under the terms of the Mortgage,
including all rights of consent or approval thereunder, (K) to enter into lease
subordination agreements, non-disturbance and attornment agreements or other
leasing or rental arrangements which may be requested by the Mortgagor or the
Mortgagor's tenants, (L) to join the Mortgagor in granting, modifying or
releasing any easements, covenants, conditions, restrictions, equitable
servitudes, or land use or zoning requirements with respect to the Mortgaged
Properties to the extent such does not adversely affect the value of the related
Mortgage Loan or Mortgaged Property, (M) to execute and deliver, on behalf of
itself, the Trustee, the Trust or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties, and (N) hold in accordance with the terms
of any Mortgage Loan and this Agreement, Defeasance Collateral. Notwithstanding
the above, the Master Servicer shall have no power to (i) waive any Prepayment
Premiums or (ii) consent to any modification of a Money Term of a Mortgage Loan.
Nothing contained in this Agreement shall limit the ability of the Master
Servicer to lend money to (to the extent not secured, in whole or in part, by
any Mortgaged Property), accept deposits from and otherwise generally engage in
any kind of business or dealings with any Mortgagor as though the Master
Servicer was not a party to this Agreement or to the transactions contemplated
hereby; provided, however, that this sentence shall not modify the Servicing
Standard.
(b) The Master Servicer shall not be obligated to service and
administer the Mortgage Loans which have become and continue to be Specially
Serviced Mortgage Loans, except as specifically provided herein. The Master
Servicer shall be required to make all calculations and prepare all reports
required hereunder with respect to such Specially Serviced Mortgage Loans (other
than calculations and reports expressly required to be made by the Special
Servicer hereunder) as if no Servicing Transfer Event had occurred and shall
continue to collect all Scheduled Payments, make Servicing and P&I Advances as
set forth herein and to
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render such incidental services with respect to such Specially Serviced Mortgage
Loans, all as are specifically provided for herein, but shall have no other
servicing or other duties with respect to such Specially Serviced Mortgage
Loans. The Master Servicer shall give notice within three Business Days to the
Special Servicer of any collections it receives from any Specially Serviced
Mortgage Loans, subject to changes agreed upon from time to time by the Special
Servicer and the Master Servicer. The Special Servicer shall instruct within one
Business Day after receiving such notice the Master Servicer on how to apply
such funds. The Master Servicer within one Business Day after receiving such
instructions shall apply such funds in accordance with the Special Servicer's
instructions. Each Mortgage Loan that becomes a Specially Serviced Mortgage Loan
shall continue as such until such Mortgage Loan becomes a Rehabilitated Mortgage
Loan. The Master Servicer shall not be required to initiate extraordinary
collection procedures or legal proceedings with respect to any Mortgage Loan or
to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the
Trustee will sign the Power of Attorney attached hereto as Exhibit S-1. The
Master Servicer, shall promptly notify the Trustee of the execution and delivery
of any document on behalf of the Trustee under such Power-of-Attorney. From time
to time until the termination of the Trust, upon receipt of written request of
the Master Servicer, the Trustee shall furnish the Master Servicer or any of the
Primary Servicers with any additional powers of attorney and other documents
necessary or appropriate to enable the Master Servicer to service and administer
the Mortgage Loans including, without limitation, documents relating to the
management, operation, maintenance, repair, leasing or marketing of the
Mortgaged Properties. The Master Servicer shall indemnify the Trustee for any
costs, liabilities and expenses (including attorneys' fees) incurred by the
Trustee in connection with the intentional or negligent misuse of such power of
attorney by the Master Servicer.
(d) The Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The Master Servicer (or the Primary Servicers on its
behalf) shall segregate and hold all funds collected and received pursuant to
any Mortgage Loan constituting Escrow Amounts separate and apart from any of its
own funds and general assets and shall establish and maintain one or more
segregated custodial accounts (each, an "Escrow Account") into which all Escrow
Amounts shall be deposited within one (1) Business Day after receipt. Each
Escrow Account shall be an Eligible Account, except with respect to Mortgage
Loans identified on Schedule IV for which Escrow Accounts shall be transferred
to Eligible Accounts at the earliest date permitted under the related Mortgage
Loan documents. The Master Servicer shall also deposit into each Escrow Account
any amounts representing losses on Eligible Investments pursuant to the
immediately succeeding paragraph and any Insurance Proceeds or Liquidation
Proceeds which are required to be applied to the restoration or repair of any
Mortgaged Property pursuant to the related Mortgage Loan. Each Escrow Account
shall be maintained in accordance with the requirements of the related Mortgage
Loan and in accordance with the Servicing Standard. Withdrawals from an Escrow
Account may be made only:
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(i) to effect timely payments of items constituting Escrow
Amounts for the related Mortgage Loan;
(ii) to transfer funds to the Certificate Account to reimburse
the Master Servicer for any Advance relating to Escrow Amounts, but only from
amounts received with respect to the related Mortgage Loan which represent late
collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the
related Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any
interest or investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Mortgagor under applicable law
or by the terms of the Mortgage Loan, or otherwise to the Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that
were not required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding sentence, (i) the Master
Servicer may direct any depository institution or trust company in which the
Escrow Accounts are maintained to invest the funds held therein in one or more
Eligible Investments; provided, however, that such funds shall be either (x)
immediately available or (y) available in accordance with a schedule which will
permit the Master Servicer to meet the payment obligations for which the Escrow
Account was established; (ii) the Master Servicer shall be entitled to all
income and gain realized from any such investment of funds as additional
servicing compensation; and (iii) the Master Servicer shall deposit from its own
funds in the applicable Escrow Account the amount of any loss incurred in
respect of any such investment of funds immediately upon the realization of such
loss. The Master Servicer shall not direct the investment of funds held in any
Escrow Account and retain the income and gain realized therefrom if the terms of
the related Mortgage Loan or applicable law permit the Mortgagor to be entitled
to the income and gain realized from the investment of funds deposited therein,
and the Master Servicer shall not be required to invest amounts on deposit in
Escrow Accounts in Eligible Investments or Eligible Accounts to the extent that
the Master Servicer is required by either law or under the terms of any related
Mortgage Loan to deposit or invest such amounts in another type of investments
or accounts. In the event the Master Servicer is not entitled to direct the
investment of such funds, (1) the Master Servicer shall direct the depository
institution or trust company in which such Escrow Accounts are maintained to
invest the funds held therein in accordance with the Mortgagor's written
investment instructions, if the terms of the related Mortgage Loan or applicable
law require the Master Servicer to invest such funds in accordance with the
Mortgagor's directions; and (2) in the absence of appropriate written
instructions from the Mortgagor, the Master Servicer shall have no obligation
to, but may be entitled to, direct the investment of such funds; provided,
however, that in either event (i) such funds shall be either (y) immediately
available or (z) available in accordance with a schedule which will permit the
Master Servicer to meet the
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payment obligations for which the Escrow Account was established, and (ii) the
Master Servicer shall have no liability for any loss in investments of such
funds that are invested pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee and to each other under this Agreement is
intended by the parties to be that of an independent contractor and not of a
joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the
terms of the related Mortgage Loan, any Lock-Box Agreement or similar agreement,
the Master Servicer shall establish and maintain, in accordance with the
Servicing Standard, one or more lock-box, cash management or similar accounts
("Lock-Box Accounts") to be held outside the Trust and maintained by the Master
Servicer in accordance with the terms of the related Mortgage. No Lock-Box
Account is required to be an Eligible Account, unless otherwise required
pursuant to the related Mortgage Loan documents. The Master Servicer shall apply
the funds deposited in such accounts in accordance with terms of the related
Mortgage, any Lock-Box Agreement and in accordance with the Servicing Standard.
(h) Subject to the provisions of the applicable Primary
Servicing Agreement, the Master Servicer shall process all defeasances of
Mortgage Loans and Specially Serviced Mortgage Loans in accordance with the
terms of the Mortgage Loan documents, and shall be entitled to any fees paid
relating thereto. The Master Servicer shall not permit defeasance of any
Mortgage Loan on or before the second anniversary of the Closing Date unless
such defeasance will not result in an Adverse REMIC Event and the Master
Servicer has received an opinion of counsel to such effect and all items in the
following sentence have been satisfied. Subsequent to the second anniversary of
the Closing Date, the Master Servicer, in connection with the defeasance of a
Mortgage Loan shall require (to the extent it is not inconsistent with the
Servicing Standard) that: (i) the defeasance collateral consists of U.S.
Treasury obligations, (ii) the Master Servicer has determined that the
defeasance will not result in an Adverse REMIC Event, (iii) either (A) the
related Mortgagor designates a Single-Purpose Entity (if the Mortgagor no longer
complies) to own the Defeasance Collateral or (B) the Master Servicer has
established for the benefit of the Trust a Single-Purpose Entity to hold all
Defeasance Collateral relating to the Defeasance Loans, (iv) the Master Servicer
has requested and received from the Mortgagor (A) an opinion of counsel
generally to the effect that the Trustee will have a perfected, first priority
security interest in such Defeasance Collateral and (B) written confirmation
from a firm of independent accountants stating that payments made on such
Defeasance Collateral in accordance with the terms thereof will be sufficient to
pay the subject Mortgage Loan (or the defeased portion thereof in connection
with a partial defeasance) in full on or before its Maturity Date and to timely
pay each subsequent Scheduled Payment, and (v) a Rating Agency Confirmation is
received, unless such Rating Agency has waived in writing such Rating Agency
Confirmation. Any customary and reasonable out-of-pocket expense incurred by the
Master Servicer pursuant to this Section 8.3(h) shall be paid by the Mortgagor
of the Defeasance Loan pursuant to the related Mortgage, Mortgage Note or other
pertinent document, if so allowed by the terms of such documents.
(i) The Master Servicer shall, as to each Mortgage Loan which
is secured by the interest of the related Mortgagor under a ground lease,
promptly (and in any event within 45
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days of the Closing Date) notify the related ground lessor of the transfer of
such Mortgage Loan to the Trust pursuant to this Agreement and inform such
ground lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Master Servicer.
SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING. (a) The
parties hereto (A) acknowledge that the Master Servicer has delegated certain of
its obligations and assigned certain of its rights under this Agreement to each
of the Primary Servicers pursuant to the applicable Primary Servicing
Agreements; and (B) agree: (1) in addition to those obligations specifically
delegated by the Master Servicer to each Primary Servicer under the applicable
Primary Servicing Agreement, each Primary Servicer shall also perform the Master
Servicer's obligations set forth in Sections 2.1(c) and 2.1(d) of this Agreement
as such Sections relate to the Mortgage Loans serviced by it; (2) in addition to
those rights specifically granted by the Master Servicer to each Primary
Servicer under the applicable Primary Servicing Agreement, those rights set
forth in Section 8.24 hereof accruing to the benefit of the Master Servicer
shall also accrue to the benefit of each Primary Servicer; (3) any
indemnification or release from liability set forth in this Agreement accruing
to the benefit of the Master Servicer shall also, to the extent applicable,
benefit each Primary Servicer; and (4) for each notice, certification, report,
schedule, statement or other type of writing that a party hereto is obligated to
deliver to the Master Servicer, such party shall deliver to each Primary
Servicer a copy of such notice, certification, report, schedule, statement or
other type of writing at the time and in the same manner that any of the
foregoing is required to be delivered to the Master Servicer. The Master
Servicer or applicable Primary Servicer shall supervise, administer, monitor,
enforce and oversee the servicing of the applicable Mortgage Loans by any
Sub-Servicer appointed by it. The terms of any arrangement or agreement between
the Master Servicer or applicable Primary Servicer and a Sub-Servicer shall
provide that such agreement or arrangement may be terminated, without cause and
without the payment of any termination fees, by the Trustee in the event such
Master Servicer or applicable Primary Servicer is terminated in accordance with
this Agreement or the applicable Primary Servicing Agreement. In addition,
neither the Trustee nor the Certificateholders shall have any direct obligation
or liability (including, without limitation, indemnification obligations) with
respect to any Sub-Servicer. The Master Servicer or applicable Primary Servicer
shall pay the costs of enforcement against any of its Sub-Servicers at its own
expense, but shall be reimbursed therefor only (i) from a general recovery
resulting from such enforcement only to the extent that such recovery exceeds
all amounts due in respect of the related Mortgage Loans or (ii) from a specific
recovery of costs, expenses or attorneys fees against the party against whom
such enforcement is directed. Notwithstanding the provisions of any
Sub-Servicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Master Servicer or applicable Primary
Servicer or a Sub-Servicer, or reference to actions taken through a Sub-Servicer
or otherwise, the Master Servicer or applicable Primary Servicer shall remain
obligated and liable to the Trustee and the Certificateholders for the servicing
and administering of the applicable Mortgage Loans in accordance with (and
subject to the limitations contained within) the provisions of this Agreement or
the applicable Primary Servicing Agreement without diminution of such obligation
or liability by virtue of indemnification from a Sub-Servicer and to the same
extent and under the same terms and conditions as if the Master Servicer or
applicable Primary Servicer alone were servicing and administering the Mortgage
Loans.
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(b) The Master Servicer and either Primary Servicer may
appoint one or more sub-servicers (each, a "Sub-Servicer") to perform all or any
portion of its duties hereunder for the benefit of the Trustee and the
Certificateholders.
The Master Servicer shall enter into the Primary Servicing
Agreements with each of the Primary Servicers and shall not terminate such
agreements except in accordance with the terms thereof. To the extent consistent
with the rights of the Primary Servicers under this Agreement and the related
Primary Servicing Agreement, but not in limitation of any other rights granted
to the Primary Servicers in this Agreement and/or in the Primary Servicing
Agreements, each of the Primary Servicers shall have all of the rights and
obligations of a Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this
Agreement to the contrary, (i) each Primary Servicer's rights and obligations
under its respective Primary Servicing Agreement shall expressly survive a
termination of the Master Servicer's servicing rights under this Agreement;
provided that the applicable Primary Servicing Agreement has not been terminated
in accordance with its provisions; (ii) any successor Master Servicer,
including, without limitation, the Trustee (if it assumes the servicing
obligations of the Master Servicer) shall be deemed to automatically assume and
agree to each of the then current Primary Servicing Agreements without further
action upon becoming the successor Master Servicer; (iii) this Agreement may not
be modified in any manner which would increase the obligations or limit the
rights of a Primary Servicer hereunder and/or under the applicable Primary
Servicing Agreement, without the prior written consent of such Primary Servicer;
(iv) the parties hereto recognize that although the Primary Servicers are not
parties to this Agreement, this Agreement has been entered into with (A) the
express intent that each Primary Servicer (together with their respective
successors and assigns) be a third party beneficiary to this Agreement to the
extent of its rights specifically set forth herein with all of the rights and
remedies to enforce such rights under this Agreement in the same fashion as if
each Primary Servicer (together with their respective successors and assigns)
were a direct party thereto having privity of contract with the parties to this
Agreement and (B) the express understanding that such third party beneficiary
status has been directly relied upon by each Primary Servicer as consideration
for and as an inducement to enter into its respective Primary Servicing
Agreement.
If a task, right or obligation of Master Servicer is delegated
to a Primary Servicer under a Primary Servicing Agreement, and such task, right
or obligation involves or requires the consent of the Special Servicer, then the
Special Servicer shall accept the performance of such task, right or obligation
by the Primary Servicer in accordance with the terms of the applicable Primary
Servicing Agreement and this Agreement (including without limitation any time
periods for consent or deemed consent to be observed by the Special Servicer) as
if Master Servicer were performing it, subject to Master Servicer's continuing
obligations pursuant to the foregoing sentence.
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES. The Master
Servicer and any Primary Servicer and any agent of the Master Servicer or
Primary Servicer in its individual or any other capacity may become the owner or
pledgee of Certificates with the same rights it would have if it were not the
Master Servicer or such agent. Any such interest of the Master Servicer or
Primary Servicer or such agent in the Certificates shall not be taken into
account
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when evaluating whether actions of the Master Servicer are consistent with its
obligations in accordance with the Servicing Standard regardless of whether such
actions may have the effect of benefiting the Class or Classes of Certificates
owned by the Master Servicer.
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE,
TAXES AND OTHER. Subject to the limitations set forth below, the Master Servicer
shall use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgage Loan (other than any REO
Mortgage Loan), and if the related Mortgagor does not so maintain, the Master
Servicer shall cause to be maintained with a Qualified Insurer, (A) a Standard
Hazard Insurance Policy which does not provide for reduction due to depreciation
in an amount that is at least equal to the lesser of (i) the full replacement
cost of improvements securing such Mortgage Loan or (ii) the outstanding
principal balance of such REO Mortgage Loan, but, in any event, in an amount
sufficient to avoid the application of any co-insurance clause and (B) any other
insurance coverage for a Mortgage Loan which the related Mortgagor is required
to maintain under the related Mortgage, provided the Master Servicer shall not
be required to maintain earthquake insurance on any Mortgaged Property unless
such insurance was required at origination and is available at commercially
reasonable rates; provided, however, that the Special Servicer shall have the
right, but not the duty, to obtain, at its own expense, earthquake insurance on
any Mortgaged Property.
Each Standard Hazard Insurance Policy maintained with respect
to any Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
improvements on the Mortgaged Property are located in a designated special flood
hazard area by the Federal Emergency Management Agency in the Federal Register,
as amended from time to time (to the extent permitted under the related Mortgage
Loan or as required by law), the Master Servicer (with respect to any Mortgaged
Property that is not an REO Property) shall cause flood insurance to be
maintained. Such flood insurance shall be in an amount equal to the lesser of
(i) the unpaid principal balance of the related Mortgage Loan or (ii) the
maximum amount of such insurance available for the related Mortgaged Property
under the national flood insurance program, if the area in which the
improvements on the Mortgaged Property are located is participating in such
program. Any amounts collected by the Master Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or property thus acquired or amounts released to the
Mortgagor in accordance with the terms of the applicable Mortgage Loan) shall be
deposited in the Certificate Account.
Any cost (such as insurance premiums and insurance broker fees
but not internal costs and expenses of obtaining such insurance) incurred by the
Master Servicer in maintaining any insurance pursuant to this Section 8.6 shall
not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Trustee for their benefit, be added to
the principal balance of the Mortgage Loan, notwithstanding that the terms of
the Mortgage Loan so permit. Such costs shall be paid as a Servicing Advance by
the Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance
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requirements. Furthermore, the Master Servicer shall not be required in any
event to maintain or obtain insurance coverage beyond what is reasonably
available at a cost customarily acceptable and consistent with the Servicing
Standard. The Master Servicer shall notify the Trustee in the event it makes
such determination.
The Master Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 8.6 either (i) if the
Master Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans serviced by it, it being understood and agreed that such policy
may contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by comparable servicers consistent with
the Servicing Standard, and provided that such policy is issued by a Qualified
Insurer or (ii) if the Master Servicer, provided that its long-term rating is
not less than "A" by Fitch and "A" by S&P, self-insures for its obligations as
set forth in the first paragraph of this Section 8.6. In the event that the
Master Servicer shall cause any Mortgage Loan to be covered by such a master
force placed or blanket insurance policy, the incremental cost of such insurance
allocable to such Mortgage Loan (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgage Loan is then covered
thereby), if not borne by the related Mortgagor, shall be paid by the Master
Servicer as a Servicing Advance. If such policy contains a deductible clause,
the Master Servicer shall, if there shall not have been maintained on the
related Mortgaged Property a policy complying with this Section 8.6 and there
shall have been a loss that would have been covered by such policy, deposit in
the Certificate Account the amount not otherwise payable under such master force
placed or blanket insurance policy because of such deductible clause to the
extent that such deductible exceeds (i) the deductible under the related
Mortgage Loan or (ii) if there is no deductible limitation required under the
Mortgage Loan, the deductible amount with respect to insurance policies
generally available on properties similar to the related Mortgaged Property
which is consistent with the Servicing Standard, and deliver to the Trustee an
Officer's Certificate describing the calculation of such amount. In connection
with its activities as administrator and servicer of the Mortgage Loans, the
Master Servicer agrees to present, on its behalf and on behalf of the Trustee,
claims under any such master force placed or blanket insurance policy.
With respect to each Mortgage Loan, the Master Servicer shall
maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are or
may become a lien on the related Mortgaged Property and the status of insurance
premiums payable with respect thereto. From time to time, the Master Servicer
(other than with respect to REO Mortgage Loans) shall (i) obtain all bills for
the payment of such items (including renewal premiums), and (ii) effect payment
of all such bills, taxes and other assessments with respect to such Mortgaged
Properties prior to the applicable penalty or termination date, in each case
employing for such purpose Escrow Amounts as allowed under the terms of the
related Mortgage Loan. If a Mortgagor fails to make any such payment on a timely
basis or collections from the Mortgagor are insufficient to pay any such item
before the applicable penalty or termination date, the Master Servicer in
accordance with the Servicing Standard shall use its reasonable efforts to pay
as a Servicing Advance the amount necessary to effect the payment of any such
item, subject to Section 4.4 hereof. No costs incurred by the Master Servicer,
the Trustee or the Fiscal Agent as the case may be, in effecting the payment of
taxes and assessments on the Mortgaged Properties and related insurance
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premiums shall, for the purpose of calculating distributions to
Certificateholders, be added to the principal balance of the Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION
AGREEMENTS; DUE-ON-ENCUMBRANCE CLAUSE.
(a) In the event the Master Servicer receives a request from a
Mortgagor pursuant to the provisions of any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) that expressly permits, subject to any
conditions set forth in the Mortgage Loan documents, the assignment of the
related Mortgaged Property to, and assumption of such Mortgage Loan by, another
Person, the Master Servicer shall obtain relevant information for purposes of
evaluating such request. For the purpose of the foregoing sentence, the term
'expressly permits' shall include outright permission to assign, permission to
assign upon satisfaction of certain conditions or prohibition against assignment
except upon the satisfaction of stated conditions. If the Master Servicer
recommends to approve such assignment, the Master Servicer shall provide to the
Special Servicer a copy of such recommendation and the materials upon which such
recommendation is based (which information shall consist of the information to
be included in the Assignment and Assumption Submission to Special Servicer, in
the form attached hereto as Exhibit U) and (A) the Special Servicer shall have
the right hereunder to grant or withhold consent to any such request for such
assignment and assumption in accordance with the terms of the Mortgage Loan and
this Agreement, and the Special Servicer shall not unreasonably withhold such
consent and any such decision of the Special Servicer shall be in accordance
with the Servicing Standard, (B) failure of the Special Servicer to notify the
Master Servicer in writing, within three Business Days following the Master
Servicer's delivery of the recommendation described above and the relevant loan
information on which the recommendation is based, of its determination to grant
or withhold such consent shall be deemed to constitute a grant of such consent
and (C) the Master Servicer shall not permit any such assignment or assumption
unless it has received the written consent of the Special Servicer or such
consent has been deemed to have been granted as described in the preceding
sentence. Upon consent or deemed consent by the Special Servicer to such
proposed assignment and assumption, the Master Servicer shall process such
request of the related Mortgagor and shall be authorized to enter into an
assignment and assumption or substitution agreement with the Person to whom the
related Mortgaged Property has been or is proposed to be conveyed, and/or
release the original Mortgagor from liability under the related Mortgage Loan
and substitute as obligor thereunder the Person to whom the related Mortgaged
Property has been or is proposed to be conveyed; provided, however, that the
Master Servicer shall not enter into any such agreement to the extent that any
terms thereof would result in an Adverse REMIC Event or create any lien on a
Mortgaged Property that is senior to, or on parity with, the lien of the related
Mortgage. To the extent permitted by applicable law, the Master Servicer shall
not enter into such an assumption or substitution agreement unless the credit
status of the prospective new Mortgagor is in compliance with the terms of the
related Mortgage Loan documents. In evaluating such compliance, the Master
Servicer shall use its regular commercial mortgage origination or servicing
standards and criteria. The Master Servicer shall notify the Trustee and the
Special Servicer of any assignment and assumption or substitution agreement
executed pursuant to this Section 8.7(a). The Master Servicer shall be entitled
to (as additional servicing compensation) 50% of any assumption fee collected
from a Mortgagor in connection with an assignment and
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assumption or substitution executed pursuant to this Section 8.7(a) and the
Special Servicer shall be entitled to (as additional special servicing
compensation) the other 50% of such fee.
(b) Other than with respect to the assignment and assumptions
referred to in subsection (a) above, if any Mortgage Loan that is not a
Specially Serviced Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, (i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale of the related
Mortgaged Property, or (ii) provides that such Mortgage Loan may not be assumed
without the consent of the related mortgagee in connection with any such sale or
other transfer, then, the Special Servicer, on behalf of the Trust, and not the
Master Servicer, shall either (i) enforce such due-on-sale clause or (ii) if it
believes such action would be in the best economic interest of the Trust, waive
the effect of such provision; provided, however, that if the Principal Balance
of such Mortgage Loan at such time equals or exceeds the greater of 5% of the
Aggregate Certificate Balance and $20 million (the "Review Threshold"), then
prior to waiving the effect of such provision, the Special Servicer shall obtain
Rating Agency Confirmation regarding such waiver. In connection with the request
for such consent, the Special Servicer shall prepare and deliver to Fitch and
S&P a memorandum outlining its analysis and recommendation in accordance with
the Servicing Standard, together with copies of all relevant documentation. The
Special Servicer shall promptly forward copies of the assignment and assumption
documents relating to any Mortgage Loan to the Master Servicer and the Trustee,
and the Master Servicer shall promptly thereafter forward such documents to the
Rating Agencies. The Special Servicer shall be entitled to (as additional
special servicing compensation) 100% of any fee collected from a Mortgagor in
connection with the Special Servicer granting or withholding such consent.
(c) The Master Servicer shall have the right to consent to
any transfers of interest of a Mortgagor, to the extent such transfer is allowed
under the terms of the related Mortgage Loan, including any consent to transfer
to any subsidiary or affiliate of Mortgagor or to a person acquiring less than a
majority interest in the Mortgagor. The Master Servicer shall be entitled to
collect and receive from Mortgagors any customary fees in connection with such
transfers of interest as additional servicing compensation.
(d) The Trustee for the benefit of the Certificateholders
shall execute any necessary instruments in the form presented to it by the
Master Servicer (pursuant to subsection (a)) or the Special Servicer (pursuant
to subsection (b)) for such assignments and assumptions agreements. Upon the
closing of the transactions contemplated by such documents, the Master Servicer
shall cause the originals of the assignment and assumption agreement, the
release (if any), or the modification or supplement to the Mortgage Loan to be
delivered to the Trustee except to the extent such documents have been submitted
to the recording office, in which event the Master Servicer shall promptly
deliver copies of such documents to the Trustee and the Special Servicer.
(e) If any Mortgage Loan (other than a Specially Serviced
Mortgage Loan) which contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property;
or
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(ii) requires the consent of the Mortgagee to the creation of
any such additional lien or other encumbrance on the related Mortgaged
Property,
then, as long as such Mortgage Loan is included in the Trust, the Master
Servicer, on behalf of the Trustee as the Mortgagee of record, shall exercise
(or, subject to Section 8.18, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard and Section 8.18
hereof. Prior to waiving the effect of such provision, the Master Servicer shall
obtain Rating Agency Confirmation regarding such waiver (other than with respect
to Loan #22 (Plaza Madison), as to which the Rating Agencies shall only be
provided with notice thereof).
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE
FILES. Upon the payment in full of any Mortgage Loan, the complete defeasance of
a Mortgage Loan, satisfaction or discharge in full of any Specially Serviced
Mortgage Loan or the receipt by the Master Servicer of a notification that
payment in full (or such payment, if any, in connection with the satisfaction
and discharge in full of any Specially Serviced Mortgage Loan) will be escrowed
in a manner customary for such purposes, and upon notification by the Master
Servicer in the form of a certification (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Certificate Account have been or will be so deposited) of a Servicing Officer
and a request for release of the Trustee Mortgage File in the form of Exhibit C
hereto the Trustee shall promptly release the related Trustee Mortgage File to
the Master Servicer and the Trustee shall execute and deliver to the Master
Servicer the deed of reconveyance or release, satisfaction or assignment of
mortgage or such instrument releasing the lien of the Mortgage, as directed by
the Master Servicer together with the Mortgage Note with written evidence of
cancellation thereon. The provisions of the immediately preceding sentence shall
not, in any manner, limit or impair the right of the Master Servicer to execute
and deliver, on behalf of the Trustee, the Certificateholders or any of them,
any and all instruments of satisfaction, cancellation or assignment without
recourse, representation or warranty, or of partial or full release or discharge
and all other comparable instruments, with respect to the Mortgage Loans, and
with respect to the Mortgaged Properties held for the benefit of the
Certificateholders. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Distribution
Account but shall be paid by the Master Servicer except to the extent that such
expenses are paid by the related Mortgagor in a manner consistent with the terms
of the related Mortgage and applicable law. From time to time and as shall be
appropriate for the servicing of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any Servicer Fidelity Bond or
Errors or Omissions Policy, or for the purposes of effecting a partial or total
release of any Mortgaged Property from the lien of the Mortgage or the making of
any corrections to the Mortgage Note or the Mortgage or any of the other
documents included in the Trustee Mortgage File, the Trustee shall, upon request
of the Master Servicer and the delivery to the Trustee of a Request for Release
signed by a Servicing Officer, in the form of Exhibit C hereto, release the
Trustee Mortgage File to the Master Servicer or the Special Servicer, as the
case may be.
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SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER SERVICER TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE
CERTIFICATEHOLDERS. Notwithstanding any other provisions of this Agreement, the
Master Servicer shall transmit to the Trustee, to the extent required by this
Agreement, all documents and instruments coming into the possession of the
Master Servicer from time to time and shall account fully to the Trustee for any
funds received or otherwise collected thereby, including Liquidation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Servicer Mortgage Files
and funds collected or held by, or under the control of, the Master Servicer in
respect of any Mortgage Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds or Insurance Proceeds, including
any funds on deposit in the Certificate Account, shall be held by the Master
Servicer for and on behalf of the Trustee and the Certificateholders and shall
be and remain the sole and exclusive property of the Trustee, subject to the
applicable provisions of this Agreement and the Primary Servicing Agreements.
The Master Servicer agrees that it shall not create, incur or subject any
Servicer Mortgage Files or Trustee Mortgage File or any funds that are deposited
in the Certificate Account or any Escrow Account, or any funds that otherwise
are or may become due or payable to the Trustee, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Servicer
Mortgage Files or Trustee Mortgage File or any funds collected on, or in
connection with, a Mortgage Loan, except, however, that the Master Servicer
shall be entitled to receive from any such funds any amounts that are properly
due and payable to the Master Servicer under this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to the Master Servicing Fee, which shall be payable
by the Trust from amounts held in the Certificate Account or otherwise collected
from the Mortgage Loans as provided in Section 5.2. The Master Servicer shall be
required to pay to the Primary Servicers the Primary Servicing Fees, which shall
be payable by the Trust from amounts as provided in Section 5.1(c), unless
retained by the Primary Servicers from amounts transferred to the Master
Servicer in accordance with the terms of the Primary Servicing Agreements. The
Master Servicer shall be required to pay to the holders of the rights to the
Excess Servicing Fees, the Excess Servicing Fees, which shall be payable by the
Trust as provided in Section 5.1(c), unless otherwise retained by the holders of
such rights. Notwithstanding anything herein to the contrary, if any of the
holders of the right to receive Excess Servicing Fees resigns or is no longer
Master Servicer or Primary Servicer, as applicable, for any reason, it will
continue to have the right to receive its portion of the Excess Servicing Fee,
and any of the holders of the right to receive Excess Servicing Fees shall have
the right to assign its portion of the Excess Servicing Fee, whether or not it
is then acting as Master Servicer or Primary Servicer hereunder.
(b) Additional servicing compensation in the form of
assumption fees, extension fees, servicing fees, default interest payable at a
rate above the Mortgage Rate (net of any amount used to pay Advance Interest),
Modification Fees, forbearance fees, Late Fees (net of Advance Interest) or
other usual and customary charges and fees actually received from Mortgagors
shall be retained by the Master Servicer, provided that the Master Servicer
shall be entitled to (i) receive 50% of assumption fees collected on Mortgage
Loans as provided in
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Section 8.7(a), (ii) Modification Fees as provided in Section 8.18 hereof; and
(iii) 100% of any extension fees collected from the related Mortgagor in
connection with the extension of the Maturity Date of any Mortgage Loan as
provided in Section 8.18; provided, however, that the Master Servicer shall not
be entitled to any such fees in connection with any Specially Serviced Mortgage
Loans. If the Master Servicer collects any amount payable to the Special
Servicer hereunder in connection with a REO Mortgage Loan or Specially Serviced
Mortgage Loan, the Master Servicer shall promptly remit such amount to the
Special Servicer as provided in Section 5.2. The Master Servicer shall be
required to pay all applicable expenses incurred by it in connection with its
servicing activities hereunder.
(c) Notwithstanding any other provision herein, the Master
Servicing Fee for each monthly period relating to each Determination Date shall
be reduced by an amount equal to the Compensating Interest (if any) relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans for such
Determination Date.
(d) The Master Servicer shall also be entitled to additional
servicing compensation of (i) an amount equal to the excess, if any, of the
aggregate Prepayment Interest Excess relating to Mortgage Loans which are not
Specially Serviced Mortgage Loans for each Distribution Date over the aggregate
Prepayment Interest Shortfalls for such Mortgage Loans for such Distribution
Date, (ii) interest or other income earned on deposits in the Certificate
Account and the Distribution Account (but only to the extent of the net
investment earnings, if any, with respect to each such account), and, (iii) to
the extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the Escrow Accounts.
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) For each Distribution Date, (i) the Master Servicer shall
deliver to the Trustee, no later than the related Report Date, the Master
Servicer Remittance Report with respect to such Distribution Date and (ii) the
Master Servicer shall deliver to the Trustee on the related Advance Report Date,
the amount of P&I Advance to be made by the Master Servicer on the related
Master Servicer Remittance Date. The Special Servicer is required to provide all
information relating to Specially Serviced Mortgage Loans in order for the
Master Servicer to satisfy its duties in this Section 8.11.
(b) The Master Servicer shall deliver to the Trustee, the
Trustee and the Special Servicer within 30 days following each Distribution Date
a statement setting forth the status of the Certificate Account as of the close
of business on such Distribution Date showing, for the period covered by such
statement, the aggregate of deposits in or withdrawals from the Certificate
Account.
(c) The Master Servicer shall promptly inform the Special
Servicer of the name, account number, location and other necessary information
concerning the Certificate Account in order to permit the Special Servicer to
make deposits therein.
(d) The Master Servicer shall deliver to the Rating Agencies,
the Trustee, the Special Servicer, the Operating Adviser and the Depositor
within 30 days after receipt any annual, monthly or quarterly financial
statements the Master Servicer receives from any
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Mortgagor relating to the Mortgage Loans. Except as provided in Section 8.14,
the Master Servicer shall have no duty to conform or normalize any of the data
or information contained in such statements.
(e) The Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee pursuant to subsection (a) or subsection
(b) of this Section 8.11 to the Depositor, the Special Servicer, the Operating
Adviser and each Rating Agency, in each case upon request by such Person and
only to the extent such reports and information are not otherwise required to be
delivered to such Person under any provision of this Agreement.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. The Master
Servicer shall deliver to the Depositor and the Trustee on or April 1 of each
year, commencing in April 2000, an Officer's Certificate stating, as to the
signer thereof, that (A) a review of the activities of the Master Servicer
during the preceding calendar year or portion thereof and of the performance of
the Master Servicer under this Agreement has been made under such officer's
supervision and (B) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement in all material respects throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
and such officer and the nature and status thereof. The Master Servicer
shall forward a copy of each such statement to the Rating Agencies.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
REPORT. On or before April 1 of each year, commencing in April 2000, the Master
Servicer shall cause a firm of nationally recognized independent public
accountants that is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Depositor, the Operating Adviser and
the Trustee to the effect that such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans and that, on the basis
of such examination conducted substantially in compliance with the Uniform
Single Attestation Program for Mortgage Bankers ("USAP") or the Audit Program
for Mortgages serviced for FHLMC (the "FHLMC Audit Program"), the servicing for
the preceding calendar year has been conducted in compliance with such
agreements except for such significant exceptions or errors in records that, in
the opinion of such firm, the USAP or FHLMC Audit Program require it to report.
The Master Servicer shall forward a copy of each such report to the Rating
Agencies.
SECTION 8.14 ANNUAL REPORTS REGARDING THE MORTGAGED
PROPERTIES. Not later than the Report Date occurring in July of each year,
beginning in July 2000, the Master Servicer shall deliver to the Trustee, the
Placement Agents, the Underwriters, the Rating Agencies, any Operating Adviser
and the Depositor an Annual Report for each Mortgage Loan, based on the most
recently available year-end financial statements and most recently available
rent rolls of each applicable Mortgagor (to the extent provided to the Master
Servicer by or on behalf of each Mortgagor, or, in the case of Specially
Serviced Mortgaged Loans, as provided to the Special Servicer, which Special
Servicer shall forward such information to the Master Servicer on or before
April 15 of each such year), containing such information and analyses for each
Mortgage Loan as would customarily be included in accordance with the Servicing
Standard including, without limitation, Debt Service Coverage Ratios and income.
In addition, upon request the Master Servicer shall make available to the
Special Servicer and the Trustee,
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within 30 days following receipt thereof by the Master Servicer, copies of any
operating statements and rent rolls collected with respect to the Mortgaged
Properties. As and to the extent reasonably requested by the Special Servicer,
the Master Servicer shall make inquiry of any Mortgagor with respect to such
information or as regards the performance of the related Mortgage Property in
general. The Trustee shall provide or make available electronically at no cost
to such Certificateholder or Certificate Owner, such Annual Reports pursuant to
Section 5.4(a) if the Annual Report has been provided electronically by the
Master Servicer. If such Annual Reports are not provided to the Trustee
electronically, the Trustee shall deliver such reports by first class mail if
requested by a Certificateholder or Certificate Owner in writing.
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF
THE MASTER SERVICER.
(a) Subject to paragraphs (b), (c) and (d) below, the Trustee
shall make available at its Corporate Trust Office, during normal business
hours, upon reasonable advance written notice for review by any
Certificateholder, any Certificate Owner, any Seller, any Primary Servicer, any
Placement Agent, any Underwriter, each Rating Agency or the Depositor, originals
or copies of, among other things, the following items: (i) this Agreement and
any amendments thereto, (ii) all final and released Annual Reports and the
Master Servicer Remittance Reports, (iii) all Officer's Certificates (including
Officer's Certificates evidencing any determination of Nonrecoverable Advances)
delivered to the Trustee since the Closing Date, (iv) all accountants' reports
delivered to the Trustee since the Closing Date, (v) the most recent property
Inspection Reports in the possession of the Trustee in respect of each Mortgaged
Property, (vi) the most recent Mortgaged Property annual operating statement and
rent roll, if any, collected by or on behalf of the Master Servicer or the
Special Servicer, (vii) any and all modifications, waivers and amendments of the
terms of a Mortgage Loan entered into by the Master Servicer and/or the Special
Servicer, and (viii) any and all Officers' Certificates (and attachments
thereto) delivered to the Trustee to support the Master Servicer's determination
that any Advance was not or, if made, would not be, recoverable. The Trustee
will be permitted to require payment of a sum to be paid by the requesting party
(other than the Rating Agencies, the Trustee, Placement Agents or Underwriters)
sufficient to cover the reasonable costs and expenses of making such information
available.
(b) Subject to the restrictions described below, the Master
Servicer shall afford the Rating Agencies, the Depositor, the Trustee, the
Special Servicer, the Primary Servicers, the Sellers, the Placement Agents, the
Underwriters, the Operating Adviser, any Certificateholder or Certificate Owner,
upon reasonable notice and during normal business hours, reasonable access to
all information referred to in Section 8.15(a) and any additional relevant,
non-attorney-client-privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all accounts, insurance policies and
other relevant matters relating to this Agreement, and access to Servicing
Officers of the Master Servicer responsible for its obligations hereunder.
Copies of information or access will be provided to Certificateholders and each
Certificate Owner providing satisfactory evidence of ownership of Certificates
or beneficial ownership of a Certificate, as the case may be. Copies (or
computer diskettes or other digital or electronic copies of such information if
reasonably available in lieu of paper copies) of any and all of the foregoing
items shall be made available by the Master
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Servicer upon request; provided, however, that the Master Servicer shall be
permitted to require payment by the requesting party (other than the Depositor,
the Trustee, the Special Servicer, either Placement Agent, either Underwriter,
or any Rating Agency) of a sum sufficient to cover the reasonable expenses
actually incurred by the Master Servicer of providing access or copies
(including electronic or digital copies) of any such information requested in
accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require the Master
Servicer to confirm, represent or warrant the accuracy of (or to be liable or
responsible for) any other Person's information or report, included in any
communication from the Special Servicer or Mortgagor. Notwithstanding the above,
the Master Servicer shall not have any liability to the Depositor, the Trustee,
the Fiscal Agent, the Special Servicer, any Certificateholder, any Certificate
Owner, either Placement Agent, either Underwriter, any Rating Agency or any
other Person to whom it delivers information pursuant to this Section 8.15 or
any other provision of this Agreement for federal, state or other applicable
securities law violations relating to the disclosure of such information. In the
event any Person brings any claims relating to or arising from the foregoing
against the Master Servicer (or any employee, attorney, officer, director or
agent thereof), the Trust (from amounts held in any account or otherwise) shall
hold harmless and indemnify the Master Servicer from any loss or expense
(including attorney fees) relating to or arising from such claims.
(d) The Master Servicer shall produce the reports required of
it under this Agreement; provided, however, that the Master Servicer shall not
be required to produce any ad hoc non-standard written reports with respect to
such Mortgage Loans. In the event the Master Servicer elects to provide such
non-standard reports, it may require the Person requesting such report (other
than a Rating Agency) to pay a reasonable fee to cover the costs of the
preparation thereof. Notwithstanding anything to the contrary herein, as a
condition to the Master Servicer making any report or information available upon
request to any Person other than the parties hereto, the Master Servicer may
require that the recipient of such information acknowledge that the Master
Servicer may contemporaneously provide such information to the Depositor, the
Trustee, the Fiscal Agent, the Special Servicer, the Primary Servicers, the
Sellers, either Placement Agent, any Underwriter, any Rating Agency and/or the
Certificateholders or Certificate Owners. Any transmittal of information by the
Master Servicer to any Person other than the Trustee, the Master Servicer, the
Special Servicer, the Rating Agencies or the Depositor may be accompanied by a
letter from the Master Servicer containing the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws restrict any person
who possesses material, non-public information regarding the Trust which issued
Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 1999-LIFE1 from purchasing or selling such Certificates in circumstances
where the other party to the transaction is not also in possession of such
information. You also acknowledge and agree that such information is being
provided to you for the purpose of, and such information may be used only in
connection with, evaluation by you or another Certificateholder, Certificate
Owner or prospective purchaser of such Certificates or beneficial interest
therein."
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(e) The Master Servicer may, at its discretion, make available
by electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that the Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) The Master Servicer shall cooperate in providing the
Rating Agencies with such other pertinent information relating to the Mortgage
Loans as is or should be in their respective possession as the Rating Agencies
may reasonably request.
SECTION 8.16 RULE 144A INFORMATION. For as long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the Securities Act, the Master Servicer agrees to provide to the Trustee for
delivery to any Holder thereof, any Certificate Owner therein and to any
prospective purchaser of the Certificates or beneficial interest therein
reasonably designated by the Trustee, upon the request of such
Certificateholder, such Certificate Owner or the Trustee, subject to this
Section 8.16 and the provisions of Section 8.15, any information prepared by the
Master Servicer that is required to be provided to such holder or prospective
purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the
Securities Act, including, without limitation, copies of the reports and
information described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section
8.16 shall agree that such information shall not be disclosed or used for any
purpose other than the evaluation of the Certificates by such Person and the
Master Servicer shall be permitted to use the letter referred to in Section
8.15(d). Unless the Master Servicer chooses to deliver the information directly,
the Depositor, the Placement Agents, the Underwriters or the Trustee shall be
responsible for the physical delivery of the information requested pursuant to
this Section 8.16. As a condition to the Master Servicer making any report or
information available upon request to any Person other than the parties hereto,
the Master Servicer may require that the recipient of such information
acknowledge that the Master Servicer may contemporaneously provide such
information to the Depositor, the Trustee, either Placement Agent, the
Underwriters, any Rating Agency and/or the Certificateholders and Certificate
Owners. The Master Servicer will be permitted to require payment of a sum to be
paid by the requesting party (other than the Rating Agencies, the Trustee,
Placement Agents or Underwriters) sufficient to cover the reasonable costs and
expenses of making such information available.
SECTION 8.17 INSPECTIONS. The Master Servicer shall, at its
own expense, inspect or cause to be inspected each Mortgaged Property other than
Mortgaged Properties related to Specially Serviced Mortgage Loans, every
calendar year beginning in 2000, or every second calendar year beginning in 2000
if the principal balance of the related Mortgage Loan is under $2 million);
provided that the Master Servicer shall, at the expense of the Trust, inspect or
cause to be inspected each Mortgaged Property related to a Mortgage Loan that
has a Debt Service Coverage Ratio that falls below 1.0x. The Master Servicer
shall prepare an Inspection Report relating to each inspection. The Master
Servicer shall promptly forward the applicable Inspection Report to the Rating
Agencies, the Placement Agents, the Underwriters, the Depositor, the Trustee and
the Special Servicer. The Special Servicer shall have the right to
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inspect or cause to be inspected (at its own expense) every calendar year any
Mortgaged Property related to a Mortgage Loan that is not a Specially Serviced
Mortgage Loan, provided that the Special Servicer notifies the Master Servicer
prior to such inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS
AND CONSENTS.
Subject to the limitations of Section 12.3 hereof, the Master
Servicer shall have the following powers:
(a) (i) The Master Servicer in accordance with the Servicing
Standard may agree to any modification, waiver, amendment or consent of or
relating to any term other than a Money Term of a Mortgage Loan that is not a
Specially Serviced Mortgage Loan, provided that such amendment would not result
in an Adverse REMIC Event; and provided, further that if any consent relates to
a release of a letter of credit relating to any Mortgage Loan (other than
letters of credit or portions thereof released upon satisfaction of conditions
specified in the related agreements), then (i) the Master Servicer shall notify
the Special Servicer of any Mortgagor's request to release such letter of credit
which the Master Servicer recommends to release, and (ii) if the terms of the
related Mortgage Loan do not require the Master Servicer to approve such
release, then the Special Servicer shall within five days provide notice to the
Master Servicer on whether the Master Servicer should approve the release (and
the failure of the Special Servicer to give the Master Servicer such notice
shall automatically be deemed to be an approval by the Special Servicer that the
Master Servicer should grant such release). Notwithstanding the preceding
sentence, if the Master Servicer recommends to approve such modification,
waiver, amendment or consent, the Master Servicer shall provide to the Special
Servicer a copy of the Master Servicer's recommendation and the relevant
information obtained or prepared by the Master Servicer in connection therewith,
and if any proposed modification, waiver, amendment or consent is deemed
material by the Master Servicer (exercising its good faith judgment in
accordance with the Servicing Standard) (A) the Special Servicer shall have the
right hereunder to grant or withhold consent to any such proposed modification,
waiver, amendment or consent, and such consent of the Special Servicer shall not
be unreasonably withheld, consistent with the Servicing Standard, (B) failure of
the Special Servicer to notify the Master Servicer, within three Business Days
following the Master Servicer's delivery of the recommendation described above,
of its determination to grant or withhold such consent shall be deemed to
constitute a grant of such consent and (C) the Master Servicer shall not enter
into any such proposed modification, waiver, amendment or consent unless it has
received the written consent of the Special Servicer or such consent has been
deemed to have been granted as described above. In any event, the Master
Servicer shall promptly notify the Special Servicer of any material
modification, waiver, amendment or consent executed by the Master Servicer
pursuant to this Section 8.18(a)(i) and provide to the Special Servicer a copy
thereof.
Notwithstanding the foregoing, the Special Servicer
acknowledges that the Master Servicer has delegated certain tasks, rights and
obligations to Primary Servicers with respects to Post Closing Requests (as
defined in the Primary Servicing Agreements) pursuant to Section 8.4 of this
Agreement. The Primary Servicing Agreements classify certain Post Closing
Requests as Category 1 Requests (as defined in the Primary Servicing
Agreements), in which Primary Servicer has certain authority to evaluate and
process such requests in accordance with this
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Agreement, the applicable Primary Servicing Agreement and applicable Mortgage
Loan documents.
With respect to a Category 1 Request that involves a
condition, term or provision that requires, or specifies a standard of, consent
or approval of the applicable Mortgagee under the Mortgage Loan documents, the
Primary Servicing Agreements provide for Master Servicer's determination of
materiality of such condition, term or provision requiring approval or consent
and the referral of such condition, term or provision to a Special Servicer for
consent in accordance with the terms of the Primary Servicing Agreements upon a
determination of materiality. Special Servicer acknowledges such provisions.
Nothing in this Agreement, however, shall grant the Primary Servicers greater
authority, discretion or delegated rights over Post Closing Requests than set
forth in the Primary Servicing Agreement.
(ii) The Master Servicer may, without the consent of the
Special Servicer, extend the maturity date of any Balloon Mortgage Loan that is
not a Specially Serviced Mortgage Loan to a date that is not more than 60 days
following the original Maturity Date, if in the Master Servicer's sole judgment
exercised in good faith (and evidenced by an Officer's Certificate), a default
in the payment of the Balloon Payment is reasonably foreseeable and such
extension is reasonably likely to produce a greater recovery on a net present
value basis than liquidation of such Mortgage Loan. The Master Servicer shall
process all such extensions and shall be entitled to (as additional servicing
compensation) 100% of any extension fees collected from a Mortgagor with respect
to any such extension.
(b) The Master Servicer may require, in its discretion (unless
prohibited or otherwise provided in the Mortgage Loan documents), as a condition
to granting any request by a Mortgagor for any consent, modification, waiver or
amendment, that such Mortgagor pay to the Master Servicer a reasonable and
customary modification fee to the extent permitted by law; provided that the
collection of such fee shall not be permitted if collection of such fee would
cause a "significant modificatio (within the meaning of Treasury Regulation
Section 1.860G-2(b) of the Mortgage Loan). The Master Servicer may charge the
Mortgagor for any costs and expenses (including attorney's fees) incurred by the
Master Servicer in connection with any request for a modification, waiver or
amendment. The failure or inability of the Mortgagor to pay any such costs and
expenses shall not impair the right of the Master Servicer to cause such costs
and expenses (but not including any modification fee), and interest thereon at
the Advance Rate, to be paid or reimbursed by the Trust as a Servicing Advance
(to the extent not paid by the Mortgagor).
(c) The Master Servicer shall notify the Trustee of any
modification, waiver or amendment of any term of any Mortgage Loan permitted by
it under this Section and the date thereof, and shall deliver to the Trustee for
deposit in the related Mortgage File, an original counterpart of the agreement
relating to such modification, waiver or amendment, promptly following the
execution thereof except to the extent such documents have been submitted to the
applicable recording office, in which event the Master Servicer shall promptly
deliver copies of such documents to the Trustee. The Master Servicer shall not
agree to any modification, waiver, or amendment of any Money Term of a Mortgage
Loan or any term of a Specially Serviced Mortgage Loan.
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(d) Notwithstanding the foregoing provisions of this Section
8.18, if the Mortgage Loan documents relating to a Mortgage Loan provide that a
Rating Agency Confirmation is specifically required (and not merely an option of
the lender) as a condition to the taking of certain actions by the Master
Servicer or the Special Servicer (or the failure of the Master Servicer or the
Special Servicer to take such actions), then the Master Servicer or Special
Servicer, as applicable, shall not be permitted to waive such condition without
a Rating Agency Confirmation in respect of such waiver.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Master Servicer shall send a written notice to the
Special Servicer, the Rating Agencies and the Trustee within two Business Days
after becoming aware of a Servicing Transfer Event with respect to a Mortgage
Loan, which notice shall identify the related Mortgage Loan and set forth in
reasonable detail the nature and relevant facts of such Servicing Transfer Event
and, except for the Rating Agencies and the Trustee, shall be accompanied by a
copy of the Servicer Mortgage File.
(b) Prior to the transfer of the servicing of any Specially
Serviced Mortgage Loan to the Special Servicer, the Master Servicer shall notify
the related Mortgagor of such transfer in accordance with the Servicing Standard
(the form and substance of such notice shall be reasonably satisfactory to the
Special Servicer).
(c) Any calculations or reports prepared by the Master
Servicer to the extent they relate to Specially Serviced Mortgage Loans shall be
based on information supplied to the Master Servicer in writing by the Special
Servicer as provided hereby. The Master Servicer shall have no duty to
investigate or confirm the accuracy of any information provided to it by the
Special Servicer and shall have no liability for the inaccuracy of any of its
reports due to the inaccuracy of the information provided by the Special
Servicer.
(d) On or prior to each Distribution Date, the Master Servicer
shall provide to the Special Servicer, in order for the Special Servicer to
comply with its obligations under this Agreement, such information (and in the
form and medium) as the Special Servicer may reasonably request in writing from
time to time, provided that (i) the Master Servicer shall not be required to
produce any ad hoc reports or incur any unusual expense or effort in connection
therewith and (ii) if the Master Servicer elects to provide such ad hoc reports,
it may require the Special Servicer to pay a reasonable fee to cover the costs
of the preparation thereof.
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
MASTER SERVICER.
(a) The Master Servicer hereby represents and warrants to and
covenants with the Trustee, as of the date hereof:
(i) the Master Servicer is duly organized, validly existing
and in good standing as a national banking association under the laws of the
United States, and shall be and thereafter remain, in compliance with the laws
of each State in which any Mortgaged Property is located to the extent necessary
to perform its obligations under this Agreement, except where the
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failure to so qualify or comply would not adversely affect the Master Servicer's
ability to perform its obligations hereunder in accordance with the terms of
this Agreement;
(ii) the Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Master Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement has been duly executed and delivered by the Master Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee, the Fiscal Agent and the Special Servicer,
evidences the valid and binding obligation of the Master Servicer enforceable
against the Master Servicer in accordance with its terms subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, receivership and other similar laws affecting creditors' rights
generally as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to the Master Servicer's
knowledge, threatened, against it, that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the same or will
obtain the same prior to the time necessary to perform its obligations under
this Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder;
and
(vi) the performance of the services by the Master Servicer
contemplated by this Agreement are in the ordinary course of business of the
Master Servicer and the Master Servicer possesses all licenses, permits and
other authorizations necessary to perform its duties hereunder.
(b) It is understood that the representations and warranties
set forth in this Section 8.20 shall survive the execution and delivery of this
Agreement.
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(c) Any cause of action against the Master Servicer arising
out of the breach of any representations and warranties made in this Section
shall accrue upon discovery of such breach by any of the Trustee or the Master
Servicer. The Master Servicer shall give prompt notice to the Trustee, the
Depositor, the Primary Servicers and the Special Servicer of the occurrence, or
the failure to occur, of any event that, with notice or the passage of time or
both, would cause any representation or warranty in this Section to be untrue or
inaccurate in any respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which
the Master Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Master Servicer shall be a party, or any Person succeeding to the business of
the Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that each of the Rating Agencies
provides a Rating Agency Confirmation. If the conditions to the provisions in
the foregoing sentence are not met, the Trustee may terminate the Master
Servicer's servicing of the Mortgage Loans pursuant hereto, such termination to
be effected in the manner set forth in Sections 8.28 and 8.29.
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof,
the Master Servicer shall not resign from the obligations and duties hereby
imposed on it unless it determines that the Master Servicer's duties hereunder
are no longer permissible under applicable law or are in material conflict by
reason of applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor, shall have assumed the Master
Servicer's responsibilities and obligations under this Agreement and Rating
Agency Confirmation shall have been obtained. Notice of such resignation shall
be given promptly by the Master Servicer to the Trustee.
(b) The Master Servicer may resign from the obligations and
duties imposed on it, upon 30 days notice to the Trustee, provided that (i) a
successor servicer (w) is available, (x) has assets of at least $15,000,000, (y)
is willing to assume the obligations, responsibilities, and covenants to be
performed hereunder by the Master Servicer on substantially the same terms and
conditions, and for not more than equivalent compensation to that herein
provided and (z) assumes all obligations under the Primary Servicing Agreements;
(ii) the Master Servicer bears all costs associated with its resignation and the
transfer of servicing; and (iii) Rating Agency Confirmation is obtained with
respect to such servicing transfer, as evidenced by a letter delivered to the
Trustee by each Rating Agency.
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER
SERVICER. The Master Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of the Master Servicer (as provided in
Section 8.4) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Master Servicer hereunder or (B) assign and
delegate all of its duties
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hereunder; provided, however, that with respect to clause (B), (i) the Master
Servicer gives the Depositor, the Special Servicer, the Primary Servicers and
the Trustee notice of such assignment and delegation; (ii) such purchaser or
transferee accepting such assignment and delegation executes and delivers to the
Depositor and the Trustee an agreement accepting such assignment, which contains
an assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Master Servicer, with like effect as if
originally named as a party to this Agreement and the Primary Servicing
Agreements; (iii) the purchaser or transferee has assets in excess of
$15,000,000; (iv) such assignment and delegation is the subject of a Rating
Agency Confirmation; and (v) the Depositor consents to such assignment and
delegation, such consent not be unreasonably withheld. In the case of any such
assignment and delegation in accordance with the requirements of subclause (B)
of this Section, the Master Servicer shall be released from its obligations
under this Agreement, except that the Master Servicer shall remain liable for
all liabilities and obligations incurred by it as the Master Servicer hereunder
prior to the satisfaction of the conditions to such assignment set forth in the
preceding sentence. Notwithstanding the above, the Master Servicer may appoint
the Primary Servicers and Sub-Servicers in accordance with Section 8.4 hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER
AND OTHERS.
(a) Neither the Master Servicer nor any of the directors,
officers, employees or agents of the Master Servicer shall be under any
liability to the holders of the Certificates, the Depositor, the Trustee, the
Fiscal Agent, the Placement Agents, the Underwriters or the Special Servicer for
any action taken or for refraining from the taking of any action in good faith,
or using reasonable business judgment, consistent with the Servicing Standard;
provided that this provision shall not protect the Master Servicer or any such
person against any breach of a representation or warranty contained herein or
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in its performance of duties under the Agreement or by
reason of negligent disregard of obligations and duties hereunder. The Master
Servicer and any director, officer, employee or agent of the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person (including, without limitation, the Special Servicer)
respecting any matters arising hereunder. The Master Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement; provided that the Master Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders and the Trustee in the
Mortgage Loans (subject to the Special Servicer's servicing of Specially
Serviced Mortgage Loans as contemplated herein), or shall undertake any such
action if instructed to do so by the Trustee. In such event, all legal expenses
and costs of such action shall be expenses and costs of the Trust, and the
Master Servicer shall be entitled to be reimbursed therefor as Servicing
Advances as provided by Section 5.2, subject to the provisions of Section 4.4
hereof.
(b) In addition, the Master Servicer shall have no liability
with respect to, and shall be entitled to conclusively rely on as to the truth
of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Master Servicer and conforming to the
requirements of this Agreement. Subject to the Servicing Standard, the Master
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Servicer shall have the right to rely on information provided to it by the
Special Servicer and Mortgagors, and will have no duty to investigate or verify
the accuracy thereof. Neither the Master Servicer, nor any director, officer,
employee, agent or Affiliate, shall be personally liable for any error of
judgement made in good faith by any officer, unless it shall be proved that the
Master Servicer or such officer was negligent in ascertaining the pertinent
facts. Neither the Master Servicer nor any director, officer, employee, agent or
Affiliate, shall be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicer, Trustee or the Fiscal Agent in this Agreement.
The Trust shall indemnify and hold harmless the Master Servicer from any and all
claims, liabilities, costs, charges, fees or other expenses which relate to or
arise from any such breach of representation, warranty or covenant to the extent
the Master Servicer is unable to recover such amounts from the Person in breach.
(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper format)
reasonably believed or in good faith believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Master Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Master Servicer shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers conferred upon it by
this Agreement; and
(iv) the Master Servicer, in preparing any reports hereunder,
may rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed by it to be genuine
and provided by any Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicer and any director, officer, employee or
agent of the Master Servicer shall be indemnified by the Trustee, the Fiscal
Agent, and the Special Servicer, as the case may be, and held harmless against
any loss, liability or expense including reasonable attorneys' fees incurred in
connection with any legal action relating to the Trustee's, Fiscal Agent's or
the Special Servicer's, as the case may be, respective willful misfeasance, bad
faith or negligence in the performance of its respective duties hereunder or by
reason of negligent
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disregard of its respective duties hereunder, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of any of the Master Servicer's duties hereunder or by reason of
negligent disregard of the Master Servicer's obligations and duties hereunder.
The Master Servicer shall immediately notify the Trustee if a claim is made by a
third party with respect to this Agreement or the Mortgage Loans entitling the
Master Servicer to indemnification hereunder, whereupon the Trustee may assume
the defense of any such claim (with counsel reasonably satisfactory to the
Master Servicer) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so notify
the Trustee shall not affect any rights the Master Servicer or the Trust may
have to indemnification under this Agreement or otherwise, unless the Trustee's
defense of such claim is materially prejudiced thereby. Such indemnity shall
survive the termination of this Agreement or the resignation or removal of the
Master Servicer hereunder. Any payment hereunder made by the Trustee or the
Fiscal Agent pursuant to this paragraph to the Master Servicer shall be paid
from the Trustee's or Fiscal Agent's own funds, without reimbursement from the
Trust therefor except achieved through subrogation as provided in this
Agreement. Any expenses incurred or indemnification payments made by the Trustee
or the Fiscal Agent shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final judgment that the conduct of the Trustee or
the Fiscal Agent, as the case may be was not culpable or found to have acted
with willful misfeasance, bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer and each of the Primary Servicers and
any director, officer, employee or agent of the Master Servicer and each of the
Primary Servicers shall be indemnified by the Trust and held harmless against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to this Agreement, any
Mortgage Loans, any REO Property or the Certificates or any exercise of any
right under this Agreement reasonably requiring the use of counsel or the
incurring of expenses other than any loss, liability or expense incurred by
reason of the Master Servicer's or any Primary Servicer's willful misfeasance,
bad faith or negligence in the performance of duties hereunder. The Master
Servicer and each Primary Servicer shall promptly notify the Trustee if a claim
is made by a third party with respect to this Agreement or the Mortgage Loans
entitling the Master Servicer or any Primary Servicer to indemnification
hereunder, whereupon the Trustee, on behalf of the Trust, shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Master
Servicer or such Primary Servicer) and out of the Trust pay all expenses in
connection therewith, including counsel fees, and out of the Trust promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Trustee shall not
affect any rights the Master Servicer or any Primary Servicer may have to
indemnification under this Agreement or otherwise, unless the Trust is
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement. The Trustee or the Master Servicer shall promptly
make from the Certificate Account any payments certified by the Master Servicer
to the Trustee as required to be made to the Master Servicer or any Primary
Servicer pursuant to this Section 8.25.
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(b) The Master Servicer agrees to indemnify the Trustee, the
Fiscal Agent, the Special Servicer, the Trust, the Depositor, and any director,
officer, employee, agent or Controlling Person thereof, and hold them harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Trustee, the Fiscal Agent, the Special Servicer, the
Depositor, and the Trust may sustain arising from or as a result of the willful
misfeasance, bad faith or negligence in the performance of any of the Master
Servicer's duties hereunder or by reason of negligent disregard of the Master
Servicer's obligations and duties hereunder (including a breach of such
obligations a substantial motive of which is to obtain an economic advantage
from being released from such obligations), and if in any such situation the
Master Servicer is replaced, the parties hereto agree that the amount of such
claims, losses, penalties, fines, legal fees and related costs, judgments, and
other costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor servicer. The Trustee, the Fiscal Agent,
the Special Servicer or the Depositor, as applicable, shall immediately notify
the Master Servicer if a claim is made by any Person with respect to this
Agreement or the Mortgage Loans entitling the Trustee, the Fiscal Agent, the
Depositor, the Special Servicer or the Trust to indemnification under this
Section 8.25(b), whereupon the Master Servicer shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Trustee, the Fiscal
Agent, the Special Servicer or the Depositor, as applicable) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Master Servicer
shall not affect any rights the Trustee, the Fiscal Agent, the Special Servicer,
the Depositor, or the Trust may have to indemnification under this Agreement or
otherwise, unless the Master Servicer's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or termination of the Master
Servicer, the Fiscal Agent, the Special Servicer and the Trustee. Any expenses
incurred or indemnification payments made by the Master Servicer shall be
reimbursed by the party so paid, if a court of competent jurisdiction makes a
final, non-appealable judgment that the conduct of the Master Servicer was not
culpable or that the Master Servicer did not act with willful misfeasance, bad
faith or negligence.
(c) The Master Servicer shall indemnify and hold harmless the
Trust, the Trustee and the Fiscal Agent, and each of their respective directors,
each of its officers, employees, agents and any Controlling Person of the Fiscal
Agent or the Trustee from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Trust, the
Trustee or Fiscal Agent, or any such director, officer, employees, agents or
such Controlling Person may become subject, under the 1933 Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement of a material fact contained in the Preliminary
Prospectus Supplement or Final Prospectus Supplement or in the Private Placement
Memorandum, or arises out of, or is based upon the omission to state therein a
material fact necessary to make the statements therein not misleading, and shall
reimburse the Trust, Trustee or Fiscal Agent or any such director, officer,
employee, agent or Controlling Person for any legal and other expenses
reasonably incurred by the Trust, the Trustee, the Fiscal Agent or any such
director, officer, employee, agent or Controlling Person in investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action, but in each case only to the extent that the untrue statement or
omission was made in reliance upon and in conformity with written information
concerning the Master
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Servicer furnished to the Depositor by or on behalf of the Master Servicer
specifically for inclusion therein. The Trustee or the Fiscal Agent, as
applicable, shall immediately notify the Master Servicer if a claim is made by a
third party with respect to this Section 8.25(c) entitling the Trust or the
Trustee or the Fiscal Agent, as the case may be, or any of its directors,
officers, employees, agents or Controlling Persons, as the case may be, to
indemnification hereunder, whereupon the Master Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Fiscal
Agent or the Trustee, as the case may be) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Master Servicer shall not affect any rights
the Trust, the Fiscal Agent and the Trustee may have to indemnification under
this Section 8.25(c), unless the Master Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the resignation or termination of the
Master Servicer, the Fiscal Agent and the Trustee.
(d) The parties expressly agree that the only written
information concerning the Master Servicer furnished by or on behalf of the
Master Servicer for inclusion in the Preliminary Prospectus Supplement and Final
Prospectus Supplement is the information set forth under the paragraphs under
the caption "SERVICING OF THE MORTGAGE LOANS -- The Master Servicer and Special
Servicer" of the Preliminary Prospectus Supplement and Final Prospectus
Supplement.
SECTION 8.26 EXCHANGE ACT REPORTING. The Master Servicer, the
Special Servicer and the Trustee and the Fiscal Agent shall reasonably cooperate
with the Depositor in connection with the Depositor's satisfying the reporting
requirements in respect of the Trust under the Exchange Act. The Trustee shall
prepare and file on behalf of the Depositor periodic reports with respect to the
Trust as required by the Exchange Act and the Rules and Regulations of the
Securities and Exchange Commission thereunder; provided that such items shall
have been received by the Trustee (to the extent not generated by the Trustee)
in the format required for electronic filing via the EDGAR system; and provided,
further, that any such items that are required to be delivered by the Master
Servicer, the Special Servicer, the Depositor or any other Person to the Trustee
shall be so delivered in the format required for electronic filing via the EDGAR
system (in addition to any other required format). The Trustee shall have no
responsibility to file any such items that have not been received in such
EDGAR-compatible format nor shall it have any responsibility to convert any
items to such format. The Depositor shall seek from the Securities and Exchange
Commission a no-action letter or other exemptive relief relating to reduced
reporting requirements in respect of the Trust under the Exchange Act and shall,
in accordance with and to the extent permitted by applicable law, file a Form 15
relating to the automatic termination of reporting in respect of the Trust under
the Exchange Act.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. The Master
Servicer shall act in accordance with this Agreement and the REMIC Provisions
and related provisions of the Code in order to create or maintain the status of
the three REMICs as REMICs under the Code. The Master Servicer shall take no
action or cause any REMIC to take any action that could (i) endanger the status
of any REMIC as a REMIC under the Code or (ii) result in the imposition of a tax
upon any REMIC (including, but not limited to, the tax on prohibited
transactions as
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defined in Code Section 860F(a)(2) or on prohibited contributions pursuant to
Section 860G(d)) unless the Trustee shall have received a Nondisqualification
Opinion (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not endanger such status or result in the
imposition of such tax. The Master Servicer shall comply with the provisions of
Article XII hereof.
SECTION 8.28 TERMINATION.
(a) The obligations and responsibilities of the Master
Servicer created hereby (other than the obligation of the Master Servicer to
make payments to the Trustee as set forth in Section 8.29 and the obligations of
the Master Servicer to the Trustee, Fiscal Agent, the Special Servicer and the
Trust) shall terminate (i) on the date which is the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining outstanding
(and final distribution to the Certificateholders) or (B) the disposition of all
REO Property (and final distribution to the Certificateholders), (ii) if an
Event of Default described in clauses 8.28(b)(iii), (iv), (v), (vi) or (vii) has
occurred, 60 days following the date on which the Trustee or Depositor gives
written notice to the Master Servicer that the Master Servicer is terminated or
(iii) if an Event of Default described in clauses 8.28(b)(i), (ii), (viii), (ix)
or (x) has occurred, immediately upon the date on which the Trustee or the
Depositor gives written notice to the Master Servicer that the Master Servicer
is terminated. After any Event of Default, the Trustee (i) may elect to
terminate the Master Servicer by providing such notice, and (ii) shall provide
such notice if holders of Certificates representing more than 25% of the
Aggregate Certificate Balance of all Certificates so direct the Trustee.
(b) "Event of Default," wherever used herein, means any one of
the following events:
(i) any failure by the Master Servicer to remit to the Trustee
any payment required to be remitted by the Master Servicer under the terms of
this Agreement, including any required Advances; or
(ii) any failure by the Master Servicer to make a required
deposit to the Certificate Account which continues unremedied for one Business
Day following the date on which such deposit was first required to be made; or
(iii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the duties, covenants or
agreements on the part of the Master Servicer contained in this Agreement which
continues unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Depositor or the Trustee; provided, however, that
if the Master Servicer certifies to the Trustee and the Depositor that the
Master Servicer is in good faith attempting to remedy such failure, such cure
period will be extended to the extent necessary to permit the Master Servicer to
cure such failure; provided, further that such cure period may not exceed 90
days; or
(iv) any breach of the representations and warranties
contained in Section 8.20 hereof that materially and adversely affects the
interest of any holder of any Class of Certificates
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and that continues unremedied for a period of 30 days after the date on which
notice of such breach, requiring the same to be remedied, shall have been given
to the Master Servicer by the Depositor or the Trustee, provided, however, that
if the Master Servicer certifies to the Trustee and the Depositor that the
Master Servicer is in good faith attempting to remedy such breach, such cure
period will be extended to the extent necessary to permit the Master Servicer to
cure such breach; provided, further that such cure period may not exceed 90
days; or
(v) the Trustee shall receive notice from Fitch to the effect
that the continuation of the Master Servicer in such capacity would result in
the downgrade, qualification or withdrawal of any rating then assigned by Fitch
to any Class of Certificates; or
(vi) the Master Servicer has been downgraded to a servicer
rating level below CMS3 (or its then equivalent) by Fitch; or
(vii) the Master Servicer is no longer on the approved list of
commercial mortgage loan master servicers maintained by S&P; or
(viii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(ix) the Master Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or of
or relating to all or substantially all of its property; or
(x) the Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take advantage
of any applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of
Section 8.28(a), specifying the Master Servicer Remittance Date upon which the
final transfer by the Master Servicer to the Trustee shall be made, shall be
given promptly in writing by the Master Servicer to the Trustee no later than
the later of (i) five Business Days after the final payment or other liquidation
of the last Mortgage Loan or (ii) the sixth day of the month of such final
distribution. Upon any such termination, the duties of the Master Servicer
(other than the obligation of the Master Servicer to pay to the Trustee the
amounts remaining in the Certificate Account as set forth below and the
obligations of the Master Servicer to the Trustee and the Trust and the Fiscal
Agent as provided herein) shall terminate and the Master Servicer shall transfer
to the Trustee the amounts remaining in the Certificate Account after making the
withdrawals permitted to be
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made pursuant to Section 5.2 and shall thereafter terminate the Certificate
Account and any other account or fund maintained with respect to the Mortgage
Loans.
(b) On the date specified in a written notice of termination
given to the Master Servicer pursuant to clause (ii) of Section 8.28(a), or on
the date on which a written notice of termination is given to the Master
Servicer pursuant to clause (iii) of Section 8.28(a) all authority, power and
rights of the Master Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall terminate (except for any rights relating to
unpaid servicing compensation or unreimbursed Advances or, if the terminated
Master Servicer is Wells Fargo Bank, National Association, its rights to the
Excess Servicing Fee); provided that in no event shall the termination of the
Master Servicer be effective until a successor servicer shall have succeeded the
Master Servicer as successor servicer, notified the Master Servicer of such
designation, and such successor servicer shall have assumed the Master
Servicer's obligations and responsibilities hereunder and under the Primary
Servicing Agreements, as set forth in an agreement substantially in the form
hereof, with respect to the Mortgage Loans. Except as provided in the next
sentence, the Trustee may not succeed the Master Servicer as servicer until and
unless it has satisfied the provisions that would apply to a Person succeeding
to the business of the Master Servicer pursuant to Section 8.22(b) hereof.
Notwithstanding the foregoing sentence, in the event that the Master Servicer is
terminated as a result of an event described in Section 8.28(b)(viii),
8.28(b)(ix) or 8.28(b)(x), the Trustee shall act as successor servicer
immediately upon delivery of a notice of termination to the Master Servicer and
shall use its best efforts within 90 days of assuming the duties of the
Servicer, either to satisfy the conditions of Section 8.22(b) hereof or to
transfer the duties of the Master Servicer to a successor servicer who has
satisfied such conditions. The Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents or otherwise. The Master
Servicer agrees to cooperate with the Trustee and the Fiscal Agent in effecting
the termination of the Master Servicer's responsibilities and rights hereunder
as Master Servicer including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee all documents and
records in electronic or other form reasonably requested by it to enable the
successor servicer designated by the Trustee to assume the Master Servicer's
functions hereunder and to effect the transfer to such successor for
administration by it of all amounts which shall at the time be or should have
been deposited by the Master Servicer in the Certificate Account and any other
account or fund maintained or thereafter received with respect to the Mortgage
Loans.
(c) If the Master Servicer receives a written notice of
termination pursuant to clause (ii) of Section 8.28(a) relating solely to an
Event of Default set forth in clause (v), (vi) or (vii) of Section 8.28(b), and
if the Master Servicer provides the Trustee with the appropriate "request for
proposal" materials within five Business Days after receipt of such written
notice of termination, then the Trustee shall promptly thereafter (using such
"request for proposal" materials provided by the Master Servicer) solicit good
faith bids for the rights to service the Mortgage Loans under this Agreement
from at least three Qualified Bidders or, if three Qualified Bidders cannot be
located, then from as many persons as the Trustee can determine are Qualified
Bidders. At the Trustee's request, the Master Servicer shall supply the Trustee
with the names of
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Persons from whom to solicit such bids. In no event shall the Trustee be
responsible if less than three Qualified Bidders submit bids for the right to
service the Mortgage Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as
a condition of its bid, to enter into this Agreement as successor Master
Servicer, and to agree to be bound by the terms hereof and the terms of the
Primary Servicing Agreements, not later than 30 days after termination of the
Master Servicer hereunder. The Trustee shall select the Qualified Bidder with
the highest cash bid (or such other Qualified Bidder as the Master Servicer may
direct) (the "Successful Bidder") to act as successor Master Servicer hereunder.
The Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Master Servicer pursuant to the terms hereof, and in connection
therewith to deliver the amount of the Successful Bidder's cash bid to the
Trustee by wire transfer of immediately available funds to an account specified
by the Trustee no later than 10:00 a.m. New York City time on the date specified
for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing
rights hereunder to and by the Successful Bidder and receipt of such cash bid,
the Trustee shall remit or cause to be remitted to the terminated Master
Servicer the amount of such cash bid received from the Successful Bidder (net of
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this
Agreement as successor Master Servicer within 30 days after the termination of
the Master Servicer hereunder or no Successful Bidder was identified within such
30-day period, the Trustee shall have no further obligations under Section
8.29(c) and may act or may select another successor to act as Master Servicer
hereunder in accordance with Section 8.29(b).
(g) Notwithstanding anything to the contrary in this Section
8.29, the successor master servicer must assume all of the obligations of the
terminated Master Servicer under the Primary Servicing Agreements as a condition
precedent to its becoming Master Servicer hereunder.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) For and on behalf of the Certificateholders and the
Trustee, the Special Servicer shall service the Specially Serviced Mortgage
Loans and manage the related REO Properties in accordance with the provisions of
this Agreement and the Servicing Standard.
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(b) The Special Servicer shall cooperate with the Master
Servicer and provide the Master Servicer with the information reasonably
requested by the Master Servicer, in writing, to the extent required to allow
the Master Servicer to perform its servicing obligations with respect to the
Specially Serviced Mortgage Loans hereunder; provided, however, that (i) the
Special Servicer shall not be required to produce any ad hoc reports or incur
any unusual expense or effort in connection therewith and (ii) if the Special
Servicer elects to provide such ad hoc reports, the Special Servicer may require
the Master Servicer to pay a reasonable fee to cover the costs of the
preparation thereof. The Special Servicer's obligations with respect to the
servicing of any Specially Serviced Mortgage Loan and any related REO Properties
shall terminate when such Specially Serviced Mortgage Loan has become a
Rehabilitated Mortgage Loan, unless and until another Servicing Transfer Event
with respect to such Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the
Master Servicer within two Business Days (or sooner, if required by the
Servicing Standard) after becoming aware that a Mortgage Loan has become a
Rehabilitated Mortgage Loan, which notice shall identify the applicable Mortgage
Loan. Upon the receipt of such notice by the Master Servicer and the Trustee,
such Mortgage Loan shall become a Rehabilitated Mortgage Loan and will be
serviced by the Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with
respect to a Mortgage Loan and upon the reasonable request of the Special
Servicer, the Master Servicer shall mark its records for such Mortgage Loan to
cause any monthly statements for amounts due on such Mortgage Loan to be sent
thereafter to the Special Servicer rather than the related Mortgagor. Upon
receipt of any such monthly statement, the Special Servicer shall, within two
Business Days, advise the Master Servicer of any changes to be made, and return
the monthly statement to the Master Servicer. The Master Servicer shall
thereafter promptly send the corrected monthly statement to the Mortgagor. If a
Mortgage Loan becomes a Rehabilitated Mortgage Loan, the Master Servicer shall
send the monthly statement to the Mortgagor as it did before such Mortgage Loan
became a Specially Serviced Mortgage Loan.
(e) All amounts collected by the Master Servicer with respect
to a Specially Serviced Mortgage Loan (other than a Mortgage Loan that has
become an REO Property) shall be deposited in the Certificate Account. The
Master Servicer shall within three Business Days after receipt of any such
payment, notify the Special Servicer of the receipt of such payment and the
amount thereof. The Special Servicer shall, within one Business Day thereafter,
instruct the Master Servicer in writing how to apply such payment.
(f) The Special Servicer covenants that by August 31, 1999,
any custom-made software or hardware designed or purchased or licensed by the
Special Servicer and used by the Special Servicer in the course of operation or
management of, or the compiling, reporting or generation of date required by
this Agreement will not contain any deficiency (x) in the ability of such
software or hardware to identify correctly or perform calculations or other
processing with respect to dates after December 31, 1999 or (y) that would cause
such software to be fit no longer for the purpose for which it was intended by
reason of the changing of the date from 1999 to 2000.
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SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY OF SPECIAL SERVICER. The Special Servicer, at its expense, shall maintain
in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance
Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity
Bond shall be issued by a Qualified Insurer (unless the Special Servicer self
insures as provided below) and be in form and amount consistent with the
Servicing Standard. In the event that any such Servicer Errors and Omissions
Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the Special
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long-term rating of the Special Servicer is not less
than two rating categories (ignoring pluses or minuses) lower than the highest
rating of the Certificates, but in any event not less than "A" as rated by Fitch
and "BBB" as rated by S&P, the Special Servicer may self-insure for the Servicer
Fidelity Bond and the Servicer Error and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the
right to use a Sub-Servicer on the same terms and conditions as those set forth
in Section 8.4 for a Sub-Servicer of the Master Servicer. The Special Servicer
shall notify the Master Servicer and Trustee of the appointment of any
Sub-Servicer of the Special Servicer.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this
Agreement, the Special Servicer is hereby authorized and empowered when the
Special Servicer believes it appropriate in accordance with the Servicing
Standard, to take any and all the actions with respect to Specially Serviced
Mortgage Loans which the Master Servicer may perform as set forth in Section
8.3(a), including (i) to execute and deliver, on behalf of itself or the Trust,
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge and all other comparable instruments, with respect to the
Specially Serviced Mortgage Loans and with respect to the related REO Properties
and (ii) to effectuate foreclosure or other conversion of the ownership of any
REO Property securing a Mortgage Loan. The Trustee shall execute on the Closing
Date a Power of Attorney in the form of Exhibit S-2 hereto and shall furnish the
Special Servicer from time to time, upon request, with any additional powers of
attorney of the Trust, empowering the Special Servicer to take such actions as
it determines to be reasonably necessary to comply with its servicing,
administrative and management duties hereunder, and the Trustee shall execute
and deliver or cause to be executed and delivered such other documents as a
Special Servicing Officer may request, that are necessary or appropriate to
enable the Special Servicer to service, administer and manage the Specially
Serviced Mortgage Loans and carry out its duties hereunder, in each case as the
Special Servicer determines is in accordance with the Servicing Standard and the
terms of this Agreement; provided, that, prior to initiating any proceedings in
any court of law or equity (but not defending any proceedings in any court of
law or equity) or instituting any proceeding to foreclose on any Mortgaged
Property in the name of the Trust in any state, the Special Servicer shall
notify the Trustee in writing and not institute or initiate any such proceedings
for a period of five Business Days from the date of its delivery of such notice
to the Trustee, unless the Special Servicer reasonably believes that such action
should be taken in less than five Business days to preserve the property of the
Trust for the benefit of Certificateholders, and the Trustee may within five
Business Days of its receipt of
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such notice advise the Special Servicer that it has received an Opinion of
Counsel (the cost of which shall be an expense of the Trust) from an attorney
duly licensed to practice law in the state where the related Mortgaged Property
or REO Property is located, that it is likely that the laws of the state in
which said action is to be taken either prohibit such action if taken in the
name of the Trust or that the Trust would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name;
provided, further, that the Special Servicer shall not be liable to the extent
that it relies on the advice provided in such Opinion of Counsel. Upon receipt
of any such advice from the Trustee, the Special Servicer shall take such action
in the name of such Person or Persons, in trust for the Trust, as shall be
consistent with the Opinion of Counsel obtained by the Trustee. Such Person or
Persons shall acknowledge in writing that such action is being taken by the
Special Servicer in the name of the Trust. In the performance of its duties
hereunder, the Special Servicer shall be an independent contractor and shall
not, except in those instances where it is, after notice to the Trustee as
provided above, taking action in the name of the Trust, be deemed to be the
agent of the Trust. The Special Servicer shall indemnify the Trustee for any
loss, liability or reasonable expense (including attorneys' fees) incurred by
the Trustee or any director, officer, employee, agent or Controlling Person of
it or its affiliates in connection with any negligent or intentional misuse of
the foregoing powers of attorney furnished to the Special Servicer by the
Trustee. Such indemnification shall survive the resignation or termination of
the Special Servicer hereunder, the resignation or termination of the Trustee
and the termination of this Agreement. The Special Servicer shall not have any
responsibility or liability for any act or omission of the Trustee, the Master
Servicer or the Depositor that is not attributable to the failure of the Special
Servicer to perform its obligations hereunder. The Special Servicer may
conclusively rely on any advice of counsel rendered in a Nondisqualification
Opinion.
(b) In servicing and administering the Specially Serviced
Mortgage Loans and managing any related REO Properties, the Special Servicer
shall employ procedures consistent with the Servicing Standard. The Special
Servicer shall conduct, or cause to be conducted, inspections, at its own
expense, of the Mortgaged Properties relating to Specially Serviced Mortgage
Loans at such times and in such manner as shall be consistent with the Servicing
Standard; provided, that the Special Servicer shall conduct, or cause to be
conducted, inspections of the Mortgaged Properties relating to Specially
Serviced Mortgage Loans at least once during each twelve-month period that ends
on June 30 of any calendar year (commencing with the twelve-month period ending
June 30, 2000); provided further that the Special Servicer shall, at the expense
of the Trust, inspect or cause to be inspected each Mortgaged Property related
to a Mortgage Loan that is delinquent for sixty (60) days in the payment of any
amounts due under such Mortgage Loan. The Special Servicer shall provide to the
Master Servicer and the Operating Adviser copies of the Inspection Reports
relating to such inspections as soon as practicable after the completion of any
inspection.
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS;
DUE-ON-ENCUMBRANCE CLAUSES.
Subject to the limitations of Section 12.3, the Special
Servicer shall have the following duties and rights:
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(a) If any Specially Serviced Mortgage Loan contains a
provision in the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan shall
(or may at the Mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property, or
(ii) provides that such Specially Serviced Mortgage Loan may
not be assumed without the consent of the related mortgagee in connection with
any such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after consultation
with the Operating Adviser and in accordance with the REMIC Provisions, take
such actions as it deems to be in the best economic interest of the Trust in
accordance with the Servicing Standard, and may waive or enforce any due-on-sale
clause contained in the related Mortgage Note or Mortgage; provided, however,
that if the Principal Balance of such Mortgage Loan at such time equals or
exceeds the greater of 5% of the Aggregate Certificate Balance and $20 million
(the "Review Threshold"), then prior to waiving the effect of such provision,
the Special Servicer shall obtain Rating Agency Confirmation regarding such
waiver. In connection with the request for such consent, the Special Servicer
shall prepare and deliver to Fitch and S&P a memorandum outlining its analysis
and recommendation in accordance with the Servicing Standard, together with
copies of all relevant documentation. The Special Servicer shall also prepare
and provide Fitch and S&P with such memorandum and documentation for all
transfer, assumption and encumbrance consents granted for Mortgage Loans below
the Review Threshold, but for which the Special Servicer's decision will be
sufficient and a Rating Agency Confirmation is not required. As to any Mortgage
Loan that is not a Specially Serviced Mortgage Loan and contains a provision in
the nature of a "due-on-sale" clause, the Special Servicer shall have the rights
and duties set forth in Section 8.7(b).
After notice to the Operating Adviser, the Special Servicer
is also authorized to take or enter into an assignment and assumption agreement
from or with the Person to whom such property has been or is about to be
conveyed, and/or to release the original Mortgagor from liability upon the
Specially Serviced Mortgage Loan and substitute the new Mortgagor as obligor
thereon; provided, that except as otherwise permitted by Section 9.5(c), any
such assignment and assumption or substitution agreement shall contain no terms
that could result in an Adverse REMIC Event. To the extent permitted by law, the
Special Servicer shall enter into an assumption or substitution agreement that
is required under the related Mortgage Loan documents (either as a matter of
right or upon satisfaction of specified conditions) and shall otherwise enter
into any assumption or substitution agreement only if the credit status of the
prospective new mortgagor and the underwriting of the new mortgagor is in
compliance with the Special Servicer's regular commercial mortgage origination
or servicing standards and criteria. The Special Servicer shall notify the
Master Servicer of any such assignment and assumption or substitution agreement
and the Special Servicer shall forward to the Trustee the original of such
agreement, which original shall be added by the Trustee to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File to
the same extent as all other documents and instruments constituting a part
thereof.
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(b) In connection with any assignment and assumption of a
Specially Serviced Mortgage Loan, in no event shall the Special Servicer consent
to the creation of any lien on a Mortgaged Property that is senior to, or on a
parity with, the lien of the related Mortgage. Nothing in this Section 9.5 shall
constitute a waiver of the Trustee's right, as the mortgagee of record, to
receive notice of any assignment and assumption of a Specially Serviced Mortgage
Loan, any sale or other transfer of the related Mortgaged Property or the
creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(c) Subject to the Servicing Standard and Section 9.34, and
the rights and duties of the Master Servicer under Section 8.18, the Special
Servicer may enter into any modification, waiver or amendment (including,
without limitation, the substitution or release of collateral or the pledge of
additional collateral) of the terms of any Specially Serviced Mortgage Loan,
including any modification, waiver or amendment to (i) reduce the amounts owing
under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest and/or any Prepayment Premium, (ii) reduce the amount of the Scheduled
Payment on any Specially Serviced Mortgage Loan, including by way of a reduction
in the related Mortgage Rate, (iii) forbear in the enforcement of any right
granted under any Mortgage Note or Mortgage relating to a Specially Serviced
Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced Mortgage
Loan and/or (v) accept a principal prepayment on any Specially Serviced Mortgage
Loan during any period during which voluntary Principal Prepayments are
prohibited, provided, in the case of any such modification, waiver or amendment,
that (A) the related Mortgagor is in default with respect to the Specially
Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer,
such default is reasonably foreseeable, (B) in the reasonable judgment of the
Special Servicer, such modification, waiver or amendment would increase the
recovery on the Specially Serviced Mortgage Loan to Certificateholders on a net
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at related Mortgage Rate),
(C) such modification, waiver or amendment would not cause an Adverse REMIC
Event to occur, and (D) if notice to the Operating Adviser of such modification,
waiver or amendment is required pursuant to Section 9.39, the Special Servicer
has made such notice.
In no event, however, shall the Special Servicer (i) extend
the Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is
two years prior to the Final Rated Distribution Date or (ii) if the Specially
Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of
such Specially Serviced Mortgage beyond a date that is ten (10) years prior to
the expiration of the term of such ground lease.
The determination of the Special Servicer contemplated by
clause (B) of the proviso to the first paragraph of this Section 9.5(c) shall be
evidenced by an Officer's Certificate certifying the information in the proviso
to the first paragraph under this subsection (c).
(d) In the event the Special Servicer intends to permit a
Mortgagor to substitute collateral for all or any portion of a Mortgaged
Property pursuant to Section 9.5(c) or pledge additional collateral for the
Mortgage Loan pursuant to Section 9.5(c), if the security interest of the Trust
in such collateral would be perfected by possession, or if such collateral
requires special care or protection, then prior to agreeing to such substitution
or addition of collateral, the Special Servicer shall make arrangements for such
possession, care or protection,
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and prior to agreeing to such substitution or addition of collateral (or such
arrangement for possession, care or protection) shall obtain the prior written
consent of the Trustee with respect thereto (which consent shall not be
unreasonably withheld, delayed or conditioned); provided, however, that the
Trustee shall not be required (but has the option) to consent to any
substitution or addition of collateral or to hold any such collateral which will
require the Trustee to undertake any additional duties or obligations or incur
any additional expense.
(e) The Special Servicer will promptly deliver to the Master
Servicer, the Operating Adviser, the Trustee and the Rating Agencies a notice,
specifying any such assignments and assumptions, modifications, waivers or
amendments, such notice identifying the affected Specially Serviced Mortgage
Loan. Such notice shall be delivered to the Trustee and shall set forth the
reasons for such waiver, modification, or amendment (including, but not limited
to, information such as related income and expense statements, rent rolls,
occupancy status, property inspections, and an internal or external appraisal
performed in accordance with MAI standards and methodologies (and, if done
externally, the cost of such appraisal shall be recoverable as a Servicing
Advance subject to the provisions of Section 4.4 hereof)). The Special Servicer
shall also deliver to the Trustee (or the Custodian), for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment promptly following the execution thereof.
(f) No fee described in this Section shall be collected by the
Special Servicer from the Mortgagor (or on behalf of the Mortgagor) in
conjunction with any consent or any modification, waiver or amendment of the
Mortgage Loan if the collection of such fee would cause such consent,
modification, waiver or amendment to be a "significant modification" of the
Mortgage Note within the meaning of Treasury Regulation ss. 1.860G-2(b). Subject
to the foregoing, the Special Servicer shall use its reasonable efforts, in
accordance with the Servicing Standard, to collect any modification fees and
other expenses connected with a permitted modification of a Mortgage Loan from
the Mortgagor. The inability of the Mortgagor to pay any costs and expenses of a
proposed modification shall not impair the right of the Special Servicer, the
Master Servicer or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel referred
to in this Section).
(g) The Special Servicer shall cooperate with the Master
Servicer (as provided in Section 8.7) in connection with assignments and
assumptions of Mortgage Loans that are not Specially Serviced Mortgage Loans,
and shall be entitled to receive 50% of any assumption fee paid by the related
Mortgagor in connection with an assignment and assumption executed pursuant to
Section 8.7(a) and 100% of any assumption fee paid by the related Mortgagor in
connection with an assignment and assumption executed pursuant to Section
8.7(b).
(h) Notwithstanding anything herein to the contrary, the
Special Servicer shall not be permitted to take or refrain from taking any
action pursuant to instructions from the Operating Adviser that would cause it
to violate any term or provision of this Agreement, including the REMIC
Provisions and the Servicing Standard.
(i) If any Specially Serviced Mortgage Loan which contains a
provision in the nature of a "due-on-encumbrance" clause, which by its terms:
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(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property;
or
(ii) requires the consent of the mortgagee to the creation of
any such additional lien or other encumbrance on the related Mortgaged
Property,
then, for so long as such Mortgage Loan is included in the Trust, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall exercise
(or, subject to Section 9.5, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard. Prior to
waiving the effect of such provision, the Special Servicer shall obtain Rating
Agency Confirmation regarding such waiver (other than with respect to Loan #22
(Plaza Madison), as to which the Rating Agencies shall only be provided with
notice thereof).
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any
Specially Serviced Mortgage Loan, or the receipt by the Special Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, or the complete defeasance of a Mortgage Loan, the Special
Servicer will immediately notify the Master Servicer. The Special Servicer shall
determine, in accordance with the Servicing Standard, whether an instrument of
satisfaction shall be delivered and, if the Special Servicer determines that
such instrument should be delivered, the Special Servicer shall deliver written
approval of such delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee or Custodian of a request for release signed by a Special Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File to the Special Servicer. After the transfer of servicing with respect to
any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with
the Servicing Standard, the Master Servicer shall notify, in writing, the
Mortgagor under each Specially Serviced Mortgage Loan transferred to the Special
Servicer, of such transfer.
(c) The Special Servicer shall send notification in writing,
to the Master Servicer to request any documents and instruments in the
possession of the Master Servicer related to any Specially Serviced Mortgage
Loan.
(d) The Special Servicer shall, with respect to any
Rehabilitated Mortgage Loan, release to the Master Servicer all documents and
instruments in the possession of the Special Servicer related to such
Rehabilitated Mortgage Loan. Prior to the transfer of servicing with respect to
any Rehabilitated Mortgage Loan to the Master Servicer in accordance with the
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Servicing Standard, the Special Servicer shall notify, in writing, each
Mortgagor under each Rehabilitated Mortgage Loan of such transfer.
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
SPECIAL SERVICER TO BE HELD FOR THE TRUSTEE.
(a) The Special Servicer shall transmit to the Trustee or
Custodian such documents and instruments coming into the possession of the
Special Servicer as from time to time are required by the terms hereof to be
delivered to the Trustee. Any funds received by the Special Servicer in respect
of any Specially Serviced Mortgage Loan or any REO Property or which otherwise
are collected by the Special Servicer as Liquidation Proceeds, Condemnation
Proceeds or Insurance Proceeds in respect of any Specially Serviced Mortgage
Loan or any REO Property shall be transmitted to the Master Servicer within one
Business Day of receipt to the Certificate Account, except that if such amounts
relate to REO Income, they shall be deposited in the REO Account. The Special
Servicer shall provide access to information and documentation regarding the
Specially Serviced Mortgage Loans to the Trustee, the Master Servicer, the
Fiscal Agent, the Operating Adviser and their respective agents and accountants
at any time upon reasonable written request and during normal business hours,
provided that the Special Servicer shall not be required to take any action or
provide any information that the Special Servicer determines will result in any
material cost or expense to which it is not entitled to reimbursement hereunder
or will result in any material liability for which it is not indemnified
hereunder; provided further that the Trustee shall be entitled to receive from
the Special Servicer all such information as the Trustee shall reasonably
require to perform their respective duties hereunder. In fulfilling such a
request, the Special Servicer shall not be responsible for determining whether
such information is sufficient for the Trustee's, the Master Servicer's, the
Fiscal Agent's or the Operating Adviser's purposes.
(b) The Special Servicer hereby acknowledges that the Trust
owns the Specially Serviced Mortgage Loans and all Mortgage Files representing
such Specially Serviced Mortgage Loans and all funds now or hereafter held by,
or under the control of, the Special Servicer that are collected by the Special
Servicer in connection with the Specially Serviced Mortgage Loans (but excluding
any Special Servicer Compensation and all other amounts to which the Special
Servicer is entitled hereunder); and the Special Servicer agrees that all
documents or instruments constituting part of the Mortgage Files, and such funds
relating to the Specially Serviced Mortgage Loans which come into the possession
or custody of, or which are subject to the control of, the Special Servicer,
shall be held by the Special Servicer for and on behalf of the Trust.
(c) The Special Servicer also agrees that it shall not create,
incur or subject any Specially Serviced Mortgage Loans, or any funds that are
required to be deposited in any REO Account to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, nor assert by
legal action or otherwise any claim or right of setoff against any Specially
Serviced Mortgage Loan or any funds, collected on, or in connection with, a
Specially Serviced Mortgage Loan.
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SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SPECIAL SERVICER.
(a) Special Servicer hereby represents, warrants to and
covenants with the Trustee (in its capacity as Trustee of the Trust) that as of
the date hereof:
(i) the Special Servicer is duly organized, validly existing
and in good standing as a national banking association under the laws of the
United States and shall be and thereafter remain in compliance with the laws of
each state in which any Mortgaged Property (including any REO Property) which
is, or is related to, a Specially Serviced Mortgage Loan is located to the
extent necessary to perform its obligations under this Agreement, except where
the failure to so qualify or comply would not adversely affect the Special
Servicer's ability to perform its obligations hereunder in accordance with the
terms of this Agreement;
(ii) the Special Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Special Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement;
and this Agreement, assuming the due authorization, execution and delivery
thereof by the Depositor, the Trustee, the Master Servicer and the Fiscal Agent,
evidences the valid and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with its terms subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
receivership, moratorium and other similar laws affecting creditors' rights
generally as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement.
(iv) no litigation is pending or, to the Special Servicer's
knowledge, threatened, against it, that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by it, or compliance by it with, this Agreement, or the consummation
of the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, it has obtained the same or will obtain the
same prior to the time necessary to perform its obligations under this
Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or
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licensed in one or more states is not necessary for the performance by it of its
obligations hereunder; and
(vi) the performance of the services by the Special Servicer
contemplated by this Agreement are in the ordinary course of business of the
Special Servicer and the Special Servicer possesses all licenses, permits and
other authorizations necessary to perform its duties hereunder.
(b) It is understood that the representations and warranties
set forth in this Section 9.8 shall survive the execution and delivery of this
Agreement.
(c) Any cause of action against the Special Servicer arising
out of the breach of any representations and warranties made in this Section
shall accrue upon discovery of such breach by any of the Trustee, the Master
Servicer, the Fiscal Agent, or the Special Servicer. The Special Servicer shall
give prompt notice to the Trustee, the Fiscal Agent, the Depositor, the
Operating Adviser and the Master Servicer of the occurrence, or the failure to
occur, of any event that, with notice, or the passage of time or both, would
cause any representation or warranty in this Section to be untrue or inaccurate
in any respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL
LIABILITY INSURANCE POLICIES.
(a) For all REO Property, to the extent consistent with the
Servicing Standard, the Special Servicer shall use efforts, consistent with the
Servicing Standard, to maintain with a Qualified Insurer a Standard Hazard
Insurance Policy which does not provide for reduction due to depreciation in an
amount which is not less than the full replacement cost of the improvements of
such REO Property or in an amount not less than the unpaid principal balance
plus all unpaid interest and the cumulative amount of Servicing Advances (plus
Advance Interest) made with respect to such Mortgage Loan of such Mortgage Loan,
whichever is less, but, in any event, in an amount sufficient to avoid the
application of any co-insurance clause. If the improvements to the Mortgaged
Property are in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards (and such flood
insurance has been made available), the Special Servicer shall maintain a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration in an amount representing coverage equal to the
lesser of the then outstanding Principal Balance of the Specially Serviced
Mortgage Loan and unpaid Advances (plus Advance Interest) and the maximum
insurance coverage required under such current guidelines. It is understood and
agreed that the Special Servicer has no obligation to obtain earthquake or other
additional insurance on REO Property, except as required by law and,
nevertheless, at its sole option and at the Trust's expense, it (if required at
origination and is available at commercially reasonable rates) may obtain such
earthquake insurance. The Special Servicer shall use its reasonable efforts,
consistent with the Servicing Standard, to obtain a comprehensive general
liability insurance policy for all REO Properties. The Special Servicer shall,
to the extent available at commercially reasonable rates (as determined by the
Special Servicer in accordance with the Servicing Standard) and to the extent
consistent with the Servicing Standard, use its reasonable efforts to maintain a
Rent Loss Policy covering revenues for a period of at least twelve months and a
comprehensive general liability policy with coverage comparable to prudent
lending requirements in an amount not less
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than $1 million per occurrence. All applicable policies required to be
maintained by the Special Servicer pursuant to this Section 9.9(a) shall name
the Trustee as loss payee and be endorsed with a standard mortgagee clause. The
costs of such insurance shall be a Servicing Advance, subject to the provisions
of Section 4.4 hereof.
(b) Any amounts collected by the Special Servicer under any
insurance policies maintained pursuant to this Section 9.9 (other than amounts
to be applied to the restoration or repair of the REO Property) shall be
deposited into the applicable REO Account. Any cost incurred in maintaining the
insurance required hereby for any REO Property shall be a Servicing Advance,
subject to the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, (i) the Special Servicer shall
have no obligation beyond using its reasonable efforts consistent with the
Servicing Standard to enforce such insurance requirements and (ii) the Special
Servicer shall not be required in any event to maintain or obtain insurance
coverage beyond what is reasonably available at a cost customarily acceptable
and consistent with the Servicing Standard. The Special Servicer shall notify
the Trustee of any such determination
The Special Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 9.9 either (i) if the
Special Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans serviced by it, it being understood and agreed that such policy
may contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by comparable servicers consistent with
the Servicing Standard, and provided that such policy is issued by a Qualified
Insurer with a minimum claims paying ability rating of at least "AA" by Fitch
and "A" by S&P or otherwise approved by the Rating Agencies or (ii) if the
Special Servicer, provided that the rating of such Person's long-term debt is
not less than "AA" by Fitch and "A" by S&P self-insures for its obligations as
set forth in the first paragraph of this Section 9.9. In the event that the
Special Servicer shall cause any Mortgage Loan to be covered by such a master
force placed or blanket insurance policy, the incremental cost of such insurance
allocable to such Mortgage Loan (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgage Loan is then covered
thereby), if not borne by the related Mortgagor, shall be paid by the Special
Servicer as a Servicing Advance, subject to the provisions of Section 4.4
hereof. If such policy contains a deductible clause, the Special Servicer shall,
if there shall not have been maintained on the related Mortgaged Property a
policy complying with this Section 9.9 and there shall have been a loss that
would have been covered by such policy, deposit in the Certificate Account the
amount not otherwise payable under such master force placed or blanket insurance
policy because of such deductible clause to the extent that such deductible
exceeds (i) the deductible under the related Mortgage Loan or (ii) if there is
no deductible limitation required under the Mortgage Loan, the deductible amount
with respect to insurance policies generally available on properties similar to
the related Mortgaged Property which is consistent with the Servicing Standard,
and deliver to the Trustee an Officer's Certificate describing the calculation
of such amount. In connection with its activities as administrator and servicer
of the Mortgage Loans, the Special Servicer agrees to present, on its behalf and
on behalf of the Trustee, claims under any such master force placed or blanket
insurance policy.
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SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
The Special Servicer will prepare and present or cause to be prepared and
presented on behalf of the Trustee all claims under the Insurance Policies with
respect to REO Property, and take such actions (including the negotiation,
settlement, compromise or enforcement of the insured's claim) as shall be
necessary to recover under such policies. Any proceeds disbursed to the Special
Servicer in respect of such policies shall be promptly remitted to the
Certificate Account, upon receipt, except for any amounts realized that are to
be applied to the repair or restoration of the applicable REO Property in
accordance with the Servicing Standard. Any extraordinary expenses (but not
ordinary and routine or anticipated expenses) incurred by the Special Servicer
in fulfilling its obligations under this Section 9.10 shall be paid by the
Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the Special
Servicer shall be entitled to (i) the Special Servicing Fee, (ii) the
Liquidation Fee and (iii) the Work-Out Fee. Such amounts, if any, collected by
the Special Servicer from the related Mortgagor shall be transferred by the
Special Servicer to the Master Servicer within one Business Day of receipt
thereof, and deposited by the Master Servicer in the Certificate Account. The
Special Servicer shall be entitled to receive a Liquidation Fee from the
Liquidation Proceeds received in connection with a Final Disposition of a
Specially Serviced Mortgage Loan or REO Property. Notwithstanding any other
provision herein, the Special Servicing Fee for each monthly period relating to
each Determination Date shall be reduced by an amount equal to the Compensating
Interest, if any, relating to Specially Serviced Mortgage Loans which have
received voluntary Principal Prepayments not from Liquidation Proceeds or from
modifications of Specially Serviced Mortgage Loans for such Determination Date.
The Special Servicer shall also be entitled to additional servicing compensation
of an amount equal to the excess, if any, of the aggregate Prepayment Interest
Excess relating to Mortgage Loans which are Specially Serviced Mortgage Loans
which have received voluntary Principal Prepayments not from Liquidation
Proceeds or from modifications of Specially Serviced Mortgage Loans for each
Distribution Date over the aggregate Prepayment Interest Shortfalls for such
Mortgage Loans for such Distribution Date. If the Special Servicer resigns or is
terminated for any reason, it shall retain the right to receive any Work-Out
Fees payable on Mortgage Loans that became Rehabilitated Mortgage Loans while it
acted as Special Servicer and remained Rehabilitated Mortgage Loans at the time
of such resignation or termination for so long as such Mortgage Loan remains a
Rehabilitated Mortgage Loan.
(b) The Special Servicer shall be entitled to cause the Master
Servicer to withdraw from the Certificate Account the Special Servicer
Compensation in respect of each such Mortgage Loan in the time and manner set
forth in Section 5.2 of this Agreement. The Special Servicer shall be required
to pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
(c) Additional Special Servicer compensation in the form of
net interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, Late Fees (net of Advance
Interest) or other usual and customary charges and fees actually received from
the Mortgagor in connection with any Specially Serviced Mortgage
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Loan shall be retained by the Special Servicer, to the extent not required to be
deposited in the Certificate Account pursuant to the terms of this Agreement.
The Special Servicer shall also be permitted to receive 50% of all assumption
fees collected with respect to Mortgage Loans that are not Specially Serviced
Mortgage Loans as provided in Section 8.7(a) and 100% of all assumption fees
collected with respect to Mortgage Loans that are not Specially Serviced
Mortgage Loans as provided in Section 8.7(b). To the extent any component of
Special Servicer Compensation is in respect of amounts usually and customarily
paid by Mortgagors, the Special Servicer shall use reasonable good faith efforts
to collect such amounts from the related Mortgagor, and to the extent so
collected, in full or in part, the Special Servicer shall not be entitled to
compensation for the portion so collected therefor hereunder out of the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing
Standard and subject to Section 9.4(a), shall use its reasonable efforts to
foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Specially Serviced Mortgage Loans as
come into and continue in default and as to which no satisfactory arrangements
can be made for collection of delinquent payments of such Mortgage Loan, the
sale such Mortgage Loan in accordance with this Agreement or the modification of
such Mortgage Loan in accordance with this Agreement. In connection with such
foreclosure or other conversion of ownership, the Special Servicer shall follow
the Servicing Standard. The foregoing is subject to the proviso that the Special
Servicer shall not request that the Master Servicer make a Servicing Advance for
Liquidation Expenses unless the Special Servicer shall in its sole discretion
determine, consistent with the Servicing Standard, (i) that such foreclosure or
restoration will increase on a net present value basis the Liquidation Proceeds
of the Specially Serviced Mortgage Loan to the Trust and (ii) that such
Liquidation Expenses will be recoverable from Liquidation Proceeds, and any such
Servicing Advance by the Master Servicer or the Trustee or the Fiscal Agent
shall be subject to the determination(s) of recoverability contemplated by
Section 4.4.
(b) The Special Servicer shall not acquire any personal
property relating to any Specially Serviced Mortgage Loan pursuant hereto unless
either:
(i) such personal property is incidental to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust)
to the effect that the holding of such personal property by any REMIC will not
cause the imposition of a tax on any REMIC Pool under the Code or cause any
REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this
Agreement, the Special Servicer shall not, on behalf of the Trust, obtain title
to a Mortgaged Property as a result of or in lieu of foreclosure or otherwise,
and shall not otherwise acquire possession of, or take any other action with
respect to, any Mortgaged Property, if, as a result of any such action the Trust
would be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of such Mortgaged Property within the meaning of
CERCLA, or any applicable
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comparable federal, state or local law, or a "discharger" or "responsible party"
thereunder, unless the Special Servicer has also previously determined in
accordance with the Servicing Standard, based on a Phase I Environmental Report
prepared by a Person (who may be an employee or affiliate of the Master Servicer
or the Special Servicer) who regularly conducts environmental site assessments
in accordance with the standards of FNMA in the case of multi-family mortgage
loans and customary servicing practices in the case of commercial loans for
environmental assessments, which report shall be delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental expert
that taking such actions as are necessary to bring the Mortgaged Property in
compliance therewith is reasonably likely to produce a greater recovery on a net
present value basis than not taking such actions; and
(ii) there are no circumstances or conditions present or
threatened at such Mortgaged Property relating to the use, management, disposal
or release of any hazardous substances, hazardous materials, hazardous wastes,
or petroleum-based materials for which investigation, testing, monitoring,
removal, clean-up or remediation could be required under any federal, state or
local law or regulation, or that, if any such materials are present for which
such action could be required, after consultation with an environmental expert
taking such actions with respect to the affected Mortgaged Property is
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions (after taking into account the projected costs of
such actions);
provided, however, that such compliance pursuant to clause (i) above or the
taking of such action pursuant to this clause (ii) shall only be required to the
extent that the cost thereof is a Servicing Advance of the Master Servicer
pursuant to this Agreement, subject to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated
by Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan, the Master Servicer shall treat such cost as a Servicing Advance subject
to the provisions of Section 4.4 hereof; provided that, in the latter event, the
Special Servicer shall use its good faith reasonable business efforts to recover
such cost from the Mortgagor in connection with the curing of the default under
the Specially Serviced Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section
9.12(c), that taking such actions as are necessary to bring any Mortgaged
Property into compliance with applicable Environmental Laws, or taking such
actions with respect to the containment, removal, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, is not reasonably likely to
produce a greater recovery on a net present value basis than not taking such
actions (after taking into account the projected costs of such actions), then
the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust, including, without limitation, releasing the
lien of the related Mortgage. If the Special Servicer determines that a material
possibility exists that Liquidation Expenses with respect to Mortgaged Property
(taking into account the cost of
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bringing it into compliance with applicable Environmental Laws) would exceed the
principal balance of the related Mortgage Loan, the Special Servicer shall not
attempt to bring such Mortgaged Property into compliance and shall not acquire
title to such Mortgaged Property unless it has received the written consent of
the Trustee to such action.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including, without
limitation, any action to obtain a deficiency judgment with respect to any
Specially Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains,
through foreclosure on a Mortgage or otherwise, the right to receive title to a
Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine
when an Acquisition Date shall be deemed to occur under the REMIC Provisions
with respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust,
shall sell the REO Property expeditiously, but in any event within the time
period, and subject to the conditions, set forth in Section 9.15. Subject to
Section 9.15, the Special Servicer shall manage, conserve, protect and operate
the REO Property for the holders of beneficial interests in the Trust solely for
the purpose of its prompt disposition and sale.
SECTION 9.14 OPERATION OF REO PROPERTY.
(a) The Special Servicer shall segregate and hold all funds
collected and received in connection with the operation of each REO Property
separate and apart from its own funds and general assets and shall establish and
maintain with respect to each REO Property one or more accounts held in trust
for the benefit of the Certificateholders in the name of "LaSalle Bank National
Association, as Trustee for the Holders of Morgan Stanley Capital I Inc.
Commercial Mortgage Pass-Through Certificates Series 1999-LIFE1 [name of
Property Account]" (each, an "REO Account"), which shall be an Eligible Account.
Amounts in any REO Account shall be invested in Eligible Investments. The
Special Servicer shall deposit all funds received with respect to an REO
Property in the applicable REO Account within two days of receipt. The Special
Servicer shall account separately for funds received or expended with respect to
each REO Property. All funds in each REO Account may be invested only in
Eligible Investments. The Special Servicer shall notify the Trustee and the
Master Servicer in writing of the location and account number of each REO
Account and shall notify the Trustee prior to any subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the
Special Servicer shall withdraw from each REO Account and deposit in the
Certificate Account, the REO Income received or collected during the Collection
Period immediately preceding such Special Servicer Remittance Date on or with
respect to the related REO Properties and reinvestment income thereon; provided,
however, that the Special Servicer may retain in such REO Account such portion
of such proceeds and collections as may be necessary to maintain in the REO
Account
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sufficient funds for the proper operation, management and maintenance of the
related REO Property, including, without limitation, the creation of reasonable
reserves for repairs, replacements, and necessary capital improvements and other
related expenses. The Special Servicer shall notify the Master Servicer of all
such deposits (and the REO Properties to which the deposits relate) made into
the Certificate Account.
(c) If the Trust acquires the Mortgaged Property, the Special
Servicer shall have full power and authority, in consultation with the Operating
Adviser, and subject to the specific requirements and prohibitions of this
Agreement, to do any and all things in connection therewith as are consistent
with the Servicing Standard, subject to the REMIC Provisions, and in such manner
as the Special Servicer deems to be in the best interest of the Trust, and,
consistent therewith, may advance from its own funds to pay for the following
items (which amounts shall be reimbursed by the Trust), to the extent such
amounts cannot be paid from REO Income:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that could result or have resulted in the imposition of a lien
thereon; and
(iii) all costs and expenses necessary to maintain, operate,
lease and sell such REO Property (other than capital expenditures);
(iv) Notwithstanding the above, the Special Servicer shall pay
for such items if, but only if, in the Special Servicer's good faith reasonable
business judgment, such amounts will be recoverable from (i) proceeds received
in respect of such REO Property prior to the final liquidation of such REO
Property or (ii) Liquidation Proceeds, subject to the provisions of Section 4.4
hereof.
(d) The Special Servicer may, and to the extent necessary to
(i) preserve the status of the REO Property as "foreclosure property" under the
REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall use its
best efforts to contract with any Independent Contractor for the operation and
management of the REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) the terms of such contract shall be consistent with the
provisions of Section 856 of the Code and Treasury Regulations Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any such
contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in connection
with the operation and management of such Mortgaged Property underlying the REO
Property and (B) deposit on a daily basis all amounts payable to the Trust in
accordance with the contract between the Trust and the Independent Contractor in
an Eligible Account;
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(iv) none of the provisions of this Section 9.14 relating to
any such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations to the Trustee with respect to the operation and management of any
such REO Property;
(v) if the Independent Contractor is an Affiliate of the
Special Servicer, the consent of the Operating Adviser and a Nondisqualification
Opinion must be obtained; and
(vi) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for the Trust
pursuant to this subsection (d) for indemnification of the Special Servicer by
such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification. All fees of the Independent Contractor
(other than fees paid for performing services within the ordinary duties of a
Special Servicer which shall be paid by the Special Servicer) shall be paid from
the income derived from the REO Property. To the extent that the income from the
REO Property is insufficient, such fees shall be advanced as a Servicing
Advance, subject to the provisions of Section 4.4 hereof.
(e) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not rent, lease, or otherwise earn income on behalf of
the Trust or the beneficial owners thereof with respect to REO Property which
might cause the REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code (without giving effect to the
final sentence thereof) or result in the receipt by any REMIC of any "income
from nonpermitted assets" within the meaning of Section 860F(a)(2) of the Code
or any "net income from foreclosure property" which is subject to tax under the
REMIC Provisions unless (i) the Trustee and the Special Servicer have received
an Opinion of Counsel (at the Trust's sole expense) to the effect that, under
the REMIC Provisions and any relevant proposed legislation, any income generated
for REMIC I by the REO Property would not result in the imposition of a tax upon
REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer
determines the income or earnings with respect to such REO Property will offset
any tax under the REMIC Provisions relating to such income or earnings and will
maximize the net recovery from the REO Property to the Certificateholders. The
Special Servicer shall notify the Trustee and the Master Servicer of any
election by it to incur such tax, and the Special Servicer (i) shall hold in
escrow in an Eligible Account an amount equal to the tax payable thereby from
revenues collected from the related REO Property, (ii) provide the Trustee with
all information for the Trustee to file the necessary tax returns in connection
therewith and (iii) upon request by the Trustee, pay from such account to the
Trustee the amount of the applicable tax. The Trustee shall file the applicable
tax returns based on the information supplied by the Special Servicer and pay
the applicable tax from the amounts collected by the Special Servicer.
(i) Subject to, and without limiting the generality of the
foregoing, the Special Servicer, on behalf of the Trust, shall not:
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(ii) permit the Trust to enter into, renew or extend any New
Lease with respect to the REO Property, if the New Lease by its terms will give
rise to any income that does not constitute Rents from Real Property;
(iii) permit any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real Property;
(iv) authorize or permit any construction on the REO Property,
other than the completion of a building or other improvement thereon, and then
only if more than thirty percent of the construction of such building or other
improvement was completed before default on the Mortgage Loan became imminent,
all within the meaning of Section 856(e)(4)(B) of the Code; or
(v) operate, other than through an Independent Contractor, or
allow any other Person to operate, other than through an Independent Contractor,
the REO Property on any date more than 90 days after the Acquisition Date;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel at the Trust's sole expense to the effect that such action
will not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (without giving effect to
the final sentence thereof) at any time that it is held by the applicable REMIC
Pool, in which case the Special Servicer may take such actions as are specified
in such Opinion of Counsel.
SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired by
the Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser, shall use
its reasonable best efforts to sell any REO Property in accordance with the
Servicing Standard, but prior to the end of the third calendar year following
the end of the year of its acquisition, but in any event prior to the Final
Rated Distribution Date, unless (i) the Trustee, on behalf of the applicable
REMIC Pool, has been granted an extension of time (an "Extension") (which
extension shall be applied for at least 60 days prior to the expiration of the
period specified above) by the Internal Revenue Service to sell such REO
Property, in which case the Special Servicer shall continue to attempt to sell
the REO Property for its fair market value for such period longer than the
period specified above as such Extension permits or (ii) the Special Servicer
seeks and subsequently receives, at the expense of the Trust, a
Nondisqualification Opinion, addressed to the Trustee and the Special Servicer,
to the effect that the holding by the Trust of such REO Property subsequent to
the period specified above after its acquisition will not result in the
imposition of taxes on "prohibited transactions" of a REMIC, as defined in
Section 860F(a)(2) of the Code, or cause any REMIC to fail to qualify as a REMIC
at any time that any Certificates are outstanding. If the Trustee has not
received an Extension or such Opinion of Counsel and the Special Servicer is not
able to sell such REO Property within the period specified above, or if an
Extension has been granted and the Special Servicer is unable to sell such REO
Property within the extended time period, the Special Servicer shall, after
consultation with the Operating Adviser, before the end of such period or
extended period, as the case may be, auction the REO Property to the highest
bidder (which may be the Special Servicer) in accordance with the Servicing
Standard; provided, however, that no Interested Person shall be
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permitted to purchase the REO Property at a price less than the Purchase Price
except as provided in Section 9.36; and provided, further that if the Special
Servicer intends to bid on any REO Property, (i) the Special Servicer shall
notify the Trustee of such intent, (ii) the Trustee shall promptly obtain, at
the expense of the Trust an Appraisal of such REO Property (or internal
valuation in accordance with the procedures specified in Section 6.8) and (iii)
the Special Servicer shall not bid less than the fair market value set forth in
such Appraisal. Neither any Seller nor the Depositor may purchase REO Property
at a price in excess of the fair market value thereof.
(b) Within 30 days of the sale of the REO Property, the
Special Servicer shall provide to the Trustee and the Master Servicer a
statement of accounting for such REO Property, including without limitation, (i)
the Acquisition Date for the REO Property, (ii) the date of disposition of the
REO Property, (iii) the sale price and related selling and other expenses, (iv)
accrued interest (including interest deemed to have accrued) on the Specially
Serviced Mortgage Loan to which the REO Property related, calculated from the
Acquisition Date to the disposition date, (v) final property operating
statements, and (vi) such other information as the Trustee may reasonably
request in writing.
(c) The Liquidation Proceeds from the final disposition of the
REO Property shall be deposited in the Certificate Account within one Business
Day of receipt.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In connection
with the enforcement of the rights of the Trust to any property securing any
Specially Serviced Mortgage Loan other than the related Mortgaged Property, the
Special Servicer shall consult with counsel to determine how best to enforce
such rights in a manner consistent with the REMIC Provisions and shall not,
based on a Nondisqualification Opinion addressed to the Special Servicer and the
Trustee (the cost of which shall be an expense of the Trust) take any action
that could result in the failure of any REMIC Pool to qualify as a REMIC while
any Certificates are outstanding, unless such action has been approved by a vote
of 100% of each Class of Certificateholders (including the Class R-I, Class R-II
and Class R-III Certificateholders).
SECTION 9.17 SALE OF DEFAULTED MORTGAGE LOANS. In lieu of
exercising remedies pursuant to the terms of any Mortgage Loan and Mortgage, the
Special Servicer may sell a Specially Serviced Mortgage Loan that is a Defaulted
Mortgage Loan for cash in accordance with Section 9.36 hereof.
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
The Special Servicer shall deliver to the Depositor, the Master Servicer and the
Trustee on or before the Report Date occurring in March of each year, commencing
in March 2000, an Officer's Certificate stating, as to the signer thereof, that
(A) a review of the activities of the Special Servicer during the preceding
calendar year or portion thereof and of the performance of the Special Servicer
under this Agreement has been made under such officer's supervision and (B) to
the best of such officer's knowledge, based on such review, the Special Servicer
has fulfilled all its obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to
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such officer and the nature and status thereof. The Special Servicer shall
forward a copy of each such statement to the Rating Agencies.
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT.
On or before April 1 of each year, commencing in April 2000, the Special
Servicer, at its expense, shall cause a firm of nationally recognized
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Depositor, the Master
Servicer, the Operating Adviser and the Trustee to the effect that such firm has
examined certain documents and records relating to the servicing of the Mortgage
Loans and that, on the basis of such examination conducted substantially in
compliance with the USAP or the FHLMC Audit Program, such servicing for the
preceding calendar year has been conducted in compliance with such agreements
except for such significant exceptions or errors in records that, in the opinion
of such firm, the USAP or FHLMC Audit Program require it to report. The Special
Servicer shall forward a copy of each such report to the Rating Agencies.
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which
the Special Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Special Servicer shall be a party, or any Person succeeding to the business of
the Special Servicer, shall be the successor of the Special Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that each of the Rating Agencies
provides written confirmation that its rating of the Certificates in effect
immediately prior to such merger, consolidation, or succession will not be
qualified or reduced as a result of such merger, consolidation or succession. If
the conditions to the proviso in the foregoing sentence are not met, the Trustee
may terminate the Special Servicer's servicing of the Specially Serviced
Mortgage Loans pursuant hereto, such termination to be effected in the manner
set forth in Section 9.31.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21, the
Special Servicer shall not resign from the obligations and duties hereby imposed
on it unless it determines that the Special Servicer's duties hereunder are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer, the Operating Adviser, and the Trustee. No such resignation shall
become effective until a successor servicer designated by the Operating Adviser
and the Trustee shall have (i) satisfied the requirements that would apply
pursuant to Section 9.20 hereof if a merger of the Special Servicer had
occurred, (ii) assumed the Special Servicer's responsibilities and obligations
under this Agreement and (iii) Rating Agency Confirmation shall have been
obtained. Notice of such resignation shall be given promptly by the Special
Servicer to the Master Servicer and the Trustee.
(b) The Special Servicer may resign from the obligations and
duties hereby imposed on it, upon reasonable notice to the Trustee, provided
that (i) a successor Special Servicer is (x) available, (y) reasonably
acceptable to the Operating Adviser, the Depositor, and
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the Trustee, and (z) willing to assume the obligations, responsibilities and
covenants to be performed hereunder by the Special Servicer on substantially the
same terms and conditions, and for not more than equivalent compensation as that
herein provided, (ii) the successor Special Servicer has assets of at least
$15,000,000 and (iii) Rating Agency Confirmation is obtained with respect to
such resignation, as evidenced by a letter from each Rating Agency delivered to
the Trustee. Any costs of such resignation and of obtaining a replacement
Special Servicer shall be borne by the Special Servicer and shall not be an
expense of the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the Special Servicer hereunder in form and substance
reasonably satisfactory to the Trustee.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL
SERVICER. The Special Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of the Special Servicer or Sub-Servicers
(as provided in Section 9.3) to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Special Servicer hereunder or
(B) assign and delegate all of its duties hereunder. In the case of any such
assignment and delegation in accordance with the requirements of clause (A) of
this Section, the Special Servicer shall not be released from its obligations
under this Agreement. In the case of any such assignment and delegation in
accordance with the requirements of clause (B) of this Section, the Special
Servicer shall be released from its obligations under this Agreement, except
that the Special Servicer shall remain liable for all liabilities and
obligations incurred by it as the Special Servicer hereunder prior to the
satisfaction of the following conditions: (i) the Special Servicer gives the
Depositor, the Master Servicer, the Primary Servicers and the Trustee notice of
such assignment and delegation; (ii) such purchaser or transferee accepting such
assignment and delegation executes and delivers to the Depositor and the Trustee
an agreement accepting such assignment, which contains an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Special Servicer, with like effect as if originally named as
a party to this Agreement; (iii) the purchaser or transferee has assets in
excess of $15,000,000; (iv) such assignment and delegation is the subject of a
Rating Agency Confirmation; and (v) the Depositor consents to such assignment
and delegation, such consent not be unreasonably withheld. Notwithstanding the
above, the Special Servicer may appoint Sub-Servicers in accordance with Section
9.3 hereof.
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER
AND OTHERS.
(a) Neither the Special Servicer nor any of the directors,
officers, employees or agents of the Special Servicer shall be under any
liability to the Certificateholders or the Trustee for any action taken or for
refraining from the taking of any action in good faith and using reasonable
business judgment; provided that this provision shall not protect the Special
Servicer or any such person against any breach of a representation or warranty
contained herein or any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer and any director, officer, employee or
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agent of the Special Servicer may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person (including, without
limitation, the information and reports delivered by or at the direction of the
Master Servicer or any director, officer, employee or agent of the Master
Servicer) respecting any matters arising hereunder. The Special Servicer shall
not be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties to service the Specially Serviced Mortgage
Loans in accordance with this Agreement; provided that the Special Servicer may
in its sole discretion undertake any such action which it may reasonably deem
necessary or desirable in order to protect the interests of the
Certificateholders and the Trustee in the Specially Serviced Mortgage Loans, or
shall undertake any such action if instructed to do so by the Trustee. In such
event, all legal expenses and costs of such action (other than those that are
connected with the routine performance by the Special Servicer of its duties
hereunder) shall be expenses and costs of the Trust, and the Special Servicer
shall be entitled to be reimbursed therefor as provided by Section 5.2 hereof.
Notwithstanding any term in this Agreement, the Special Servicer shall not be
relieved from liability to, or entitled to indemnification from, the Trust for
any action taken by it at the direction of the Operating Adviser which is in
conflict with the Servicing Standard.
(b) In addition, the Special Servicer shall have no liability
with respect to, and shall be entitled to conclusively rely on as to the truth
of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Special Servicer and conforming to the
requirements of this Agreement. Neither the Special Servicer, nor any director,
officer, employee, agent or Affiliate, shall be personally liable for any error
of judgement made in good faith by any officer, unless it shall be proved that
the Special Servicer or such officer was negligent in ascertaining the pertinent
facts. Neither the Special Servicer, nor any director, officer, employee, agent
or Affiliate, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement. The Special
Servicer shall be entitled to rely on reports and information supplied to it by
the Master Servicer and the related Mortgagors and shall have no duty to
investigate or confirm the accuracy of any such report or information.
(c) The Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Master Servicer, the Fiscal Agent or Trustee in this Agreement.
The Trust shall indemnify and hold harmless the Special Servicer from any and
all claims, liabilities, costs, charges, fees or other expenses which relate to
or arise from any such breach of representation, warranty or covenant to the
extent such amounts are not recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed or in good faith believed by it to be genuine and to have
been signed or presented by the proper party or parties;
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(ii) the Special Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Special Servicer shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers conferred upon it by
this Agreement; and
(iv) the Special Servicer, in preparing any reports hereunder,
may rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed or in good faith
believed by it to be genuine and provided by any Mortgagor or manager of a
Mortgaged Property.
The Special Servicer and any director, officer, employee or
agent of the Special Servicer shall be indemnified by the Trustee and the Fiscal
Agent, as the case may be, and held harmless against any loss, liability or
expense including reasonable attorneys' fees incurred in connection with any
legal action relating to the Trustee's or the Fiscal Agent's, as the case may
be, respective willful misfeasance, bad faith or negligence in the performance
of its respective duties hereunder or by reason of negligent disregard by such
Person of its respective duties hereunder, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of any of the Special Servicer's duties hereunder or by reason
of negligent disregard of the Special Servicer's obligations and duties
hereunder. The Special Servicer shall promptly notify the Trustee and the Fiscal
Agent if a claim is made by a third party entitling the Special Servicer to
indemnification hereunder, whereupon the Trustee shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Special Servicer). Any
failure to so notify the Trustee shall not affect any rights the Special
Servicer may have to indemnification hereunder or otherwise, unless the interest
of the Trustee is materially prejudiced thereby. The indemnification provided
herein shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Special
Servicer hereunder. Any payment hereunder made by the Trustee or the Fiscal
Agent, as the case may be, pursuant to this paragraph to the Special Servicer
shall be paid from the Trustee's or Fiscal Agent's, as the case may be, own
funds, without reimbursement from the Trust therefor, except achieved through
subrogation as provided in this Agreement.
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any director, officer, employee
or agent of the Special Servicer shall be indemnified by the Trust, and held
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action relating to (i) this
Agreement, and (ii) any action taken by the Special Servicer in accordance with
the instruction delivered in writing to the Special Servicer by the Trustee or
the Master Servicer pursuant to any provision of this Agreement in each case and
the Special Servicer and each of its directors, officers, employees and agents
shall be entitled to indemnification from the Trust for any loss,
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liability or expense (including attorney's fees) incurred in connection with the
provision by the Special Servicer of any information included by the Special
Servicer in the report required to be provided by the Special Servicer pursuant
to this Agreement, other than any loss, liability or expense incurred by reason
of willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer shall promptly notify the Trustee if a claim is
made by a third party with respect hereto or the Specially Serviced Mortgage
Loans entitling the Special Servicer to indemnification hereunder, whereupon the
Trustee shall assume the defense of any such claim (with counsel reasonably
satisfactory to the Special Servicer) and the Trust shall pay, from amounts on
deposit in the Certificate Account pursuant to Section 5.2, all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee shall not affect any
rights the Special Servicer may have to indemnification hereunder or otherwise,
unless the interest of the Trust is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the termination or resignation of the Special Servicer. Any expenses
incurred or indemnification payments made by the Special Servicer shall be
reimbursed by the party responsible, or if not recovered by the Special Servicer
from such Person, then by the Trust, if a court of competent jurisdiction makes
a final, non-appealable judgment that the conduct of the Special Servicer was
not culpable.
(b) The Special Servicer agrees to indemnify the Trust, and
the Trustee, the Fiscal Agent, the Depositor, the Master Servicer and any
director, officer, employee or agent or Controlling Person of the Trustee, the
Fiscal Agent, the Depositor and the Master Servicer, and hold them harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Trust or the Trustee, the Fiscal Agent, the Depositor or the
Master Servicer may sustain arising from or as a result of the willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of negligent disregard of obligations and duties hereunder by the
Special Servicer. The Trustee, the Fiscal Agent, the Depositor or the Master
Servicer shall immediately notify the Special Servicer if a claim is made by a
third party with respect to this Agreement or the Specially Serviced Mortgage
Loans entitling the Trust or the Trustee, the Fiscal Agent, the Depositor or the
Master Servicer, as the case may be, to indemnification hereunder, whereupon the
Special Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Trustee, the Fiscal Agent, the Depositor or the
Master Servicer, as the case may be) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Special Servicer shall not affect any rights
the Trust or the Trustee, the Fiscal Agent, the Depositor or the Master Servicer
may have to indemnification under this Agreement or otherwise, unless the
Special Servicer's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the termination or resignation of the Special Servicer or the Trustee or
Fiscal Agent. Any expenses incurred or indemnification payments made by the
Special Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final, non-appealable judgment that the conduct
of the Special Servicer was not culpable or found to have acted with willful
misfeasance, bad faith or negligence.
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(c) The Special Servicer shall indemnify and hold harmless the
Trust, the Trustee and the Fiscal Agent, and each of their respective directors,
each of its officers, employees, agents and any Controlling Person of the Fiscal
Agent or the Trustee from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Trust, the
Trustee or Fiscal Agent, or any such director, officer, employees, agents or
such Controlling Person may become subject, under the 1933 Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement of a material fact contained in the Preliminary
Prospectus Supplement or Final Prospectus Supplement or in the Private Placement
Memorandum, or arises out of, or is based upon the omission to state therein a
material fact necessary to make the statements therein not misleading, and shall
reimburse the Trust, Trustee or Fiscal Agent or any such director, officer,
employee, agent or Controlling Person for any legal and other expenses
reasonably incurred by the Trust, the Trustee, the Fiscal Agent or any such
director, officer, employee, agent or Controlling Person in investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action, but in each case only to the extent that the untrue statement or
omission was made in reliance upon and in conformity with written information
concerning the Special Servicer furnished to the Depositor by or on behalf of
the Special Servicer specifically for inclusion therein. The Trustee or the
Fiscal Agent, as applicable, shall immediately notify the Special Servicer if a
claim is made by a third party with respect to this Section 9.24(c) entitling
the Trust or the Trustee or the Fiscal Agent, as the case may be, or any of its
directors, officers, employees, agents or Controlling Persons, as the case may
be, to indemnification hereunder, whereupon the Special Servicer shall assume
the defense of any such claim (with counsel reasonably satisfactory to the
Fiscal Agent or the Trustee, as the case may be) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Special Servicer shall not
affect any rights the Trust, the Fiscal Agent and the Trustee may have to
indemnification under this Section 9.24(c), unless the Special Servicer's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or termination of the Special Servicer, the Fiscal Agent and the
Trustee.
(d) The initial Special Servicer and the Depositor expressly
agree that the only information furnished by or on behalf of the Special
Servicer for inclusion in the Prospectus Supplement is the information set forth
in the paragraphs under the caption "SERVICING OF THE MORTGAGE LOANS - The
Master Servicer and Special Servicer" of the Preliminary Prospectus Supplement
and Final Prospectus Supplement.
SECTION 9.25 [RESERVED.]
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The
Special Servicer or any agent of the Special Servicer in its individual capacity
or in any other capacity may become the owner or pledgee of Certificates with
the same rights as it would have if they were not the Special Servicer or such
agent. Any such interest of the Special Servicer or such agent in the
Certificates shall not be taken into account when evaluating whether actions of
the Special Servicer are consistent with its obligations in accordance with the
Servicing Standard regardless of whether such actions may have the effect of
benefiting the Class or Classes of Certificates owned by the Special Servicer.
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SECTION 9.27 TAX REPORTING. From and after the Closing Date,
the Special Servicer shall provide the necessary information to the Master
Servicer to allow the Master Servicer to comply with the Mortgagor tax reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code with respect
to any Specially Serviced Mortgage Loan. The Special Servicer shall provide to
the Master Servicer copies of any such reports. The Master Servicer shall
forward such reports to the Trustee.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated
that the Master Servicer will be collecting all payments with respect to the
Mortgage Loans (other than payments with respect to REO Income). If, however,
the Special Servicer should receive any payments with respect to any Mortgage
Loan (other than REO Income) it shall, within one Business Day of receipt from
the Mortgagor or otherwise of any amounts attributable to payments with respect
to or the sale of any Mortgage Loan or any Specially Serviced Mortgage Loan, if
any, (but not including REO Income, which shall be deposited in the applicable
REO Account as provided in Section 9.14 hereof), either, (i) forward such
payment (endorsed, if applicable, to the order of the Master Servicer), to the
Master Servicer, or (ii) deposit such amounts, or cause such amounts to be
deposited, in the Certificate Account. The Special Servicer shall notify the
Master Servicer of each such amount received on or before the date required for
the making of such deposit or transfer, as the case may be, indicating the
Mortgage Loan or Specially Serviced Mortgage Loan to which the amount is to be
applied and the type of payment made by or on behalf of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS. The Special
Servicer shall act in accordance with this Agreement and the provisions of the
Code relating to REMICs in order to create or maintain the status of any REMIC
Pool as a REMIC under the Code or, as appropriate, adopt a plan of complete
liquidation. The Special Servicer shall not take any action or cause any REMIC
to take any action that would (i) endanger the status of any REMIC as a REMIC
under the Code or (ii) subject to Section 9.14(e), result in the imposition of a
tax upon any REMIC (including, but not limited to, the tax on prohibited
transactions as defined in Code Section 860F(a)(2) or on prohibited
contributions pursuant to Section 860G(d)) unless the Master Servicer and the
Trustee have received a Nondisqualification Opinion (at the expense of the party
seeking to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such tax. The Special
Servicer shall comply with the provisions of Article XII hereof.
SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special
Servicer created hereby (other than the obligation of the Special Servicer to
make payments to the Master Servicer as set forth in Section 9.28 and the
obligations of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof)
shall terminate on the date which is the earliest of (i) the later of (A) the
final payment or other liquidation of the last Mortgage Loan remaining
outstanding (and final distribution to the Certificateholders) or, (B) the
disposition of all REO Property in respect of any Specially Serviced Mortgage
Loan (and final distribution to the Certificateholders) (ii) 60 days following
the date on which the Trustee or the Operating Adviser has given written notice
to the Special Servicer that this Agreement is terminated pursuant to Section
9.30(b) or 9.30(c), respectively,
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and (iii) the effective date of any resignation of the Special Servicer effected
pursuant to and in accordance with Section 9.21.
(b) The Trustee may terminate the Special Servicer in the
event that (i) the Special Servicer has failed to remit any amount when due that
is required to be remitted to the Trustee, the Master Servicer, the Fiscal Agent
or the Depositor under the terms of this Agreement, (ii) the Special Servicer
has failed to deposit into any account any amount required to be so deposited or
remitted under the terms of this Agreement which failure continues unremedied
for one Business Day following the date on which such deposit or remittance was
first required to be made; (iii) the Special Servicer has failed to duly observe
or perform in any material respect any of the other covenants or agreements of
the Special Servicer set forth in this Agreement, and the Special Servicer has
failed to remedy such failure within thirty (30) days after written notice of
such failure, requiring the same to be remedied, shall have been given to the
Special Servicer by the Depositor or the Trustee, provided, however, that if the
Special Servicer certifies to the Trustee and the Depositor that the Special
Servicer is in good faith attempting to remedy such failure, and the
Certificateholders would not be affected thereby, such cure period will be
extended to the extent necessary to permit the Special Servicer to cure such
failure; provided, however, that such cure period may not exceed 90 days; (iv)
the Special Servicer has made one or more false or misleading representations or
warranties herein that materially and adversely affects the interest of any
Class of Certificates, and has failed to cure such breach within thirty (30)
days after notice of such breach, requiring the same to be remedied, shall have
been given to the Special Servicer by the Depositor or the Trustee, provided,
however, that if the Special Servicer certifies to the Trustee and the Depositor
that the Special Servicer is in good faith attempting to remedy such failure,
such cure period may be extended to the extent necessary to permit the Special
Servicer to cure such failure; provided, however, that such cure period may not
exceed 90 days; (v) the Trustee shall receive notice from Fitch to the effect
that the continuation of the Special Servicer in such capacity would result in
the downgrade, qualification or withdrawal of any rating then assigned by Fitch
to any Class of Certificates; (vi) the Special Servicer has been downgraded to a
servicer rating level below CSS3 (or its then equivalent) by Fitch; (vii) the
Special Servicer is no longer on the approved list of commercial mortgage loan
special servicers maintained by S&P; (viii) a decree or order of a court or
agency or supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state bankruptcy,
insolvency or similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; (ix) the
Special Servicer shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings relating to the Special Servicer or of or relating to all or
substantially all of its property; or (x) the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its creditors,
voluntarily suspend payment of its obligations, or take any corporate action in
furtherance of the foregoing. Such termination shall be effective on the date
after the date of any of the above events that the Trustee specifies in a
written notice to the Special Servicer specifying the reason for such
termination.
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(c) The Operating Adviser shall have the right to direct the
Trustee to terminate the Special Servicer, provided that the Operating Adviser
shall appoint a successor Special Servicer who will (i) be reasonably
satisfactory to the Trustee and to the Depositor, and (ii) execute and deliver
to the Trustee an agreement, in form and substance reasonably satisfactory to
the Trustee, whereby the successor Special Servicer agrees to assume and perform
punctually the duties of the Special Servicer specified in this Agreement; and
provided, further, that the Trustee shall have received Rating Agency
Confirmation from each Rating Agency prior to the termination of the Special
Servicer. The Special Servicer shall not be terminated pursuant to this
subsection (c) until a successor Special Servicer shall have been appointed.
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of
Section 9.30(a), specifying the Distribution Date upon which the final
distribution shall be made, shall be given promptly by the Special Servicer to
the Trustee no later than the later of (i) five Business Days after the final
payment or other liquidation of the last Mortgage Loan or (ii) the sixth day of
the month in which the final Distribution Date will occur. Upon any such
termination, the duties of the Special Servicer (other than the obligations of
the Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall terminate
and the Special Servicer shall transfer to the Master Servicer the amounts
remaining in each REO Account and shall thereafter terminate each REO Account
and any other account or fund maintained with respect to the Specially Serviced
Mortgage Loans.
(b) On the date specified in a written notice of termination
given to the Special Servicer pursuant to clause (ii) of Section 9.30(a), all
authority, power and rights of the Special Servicer under this Agreement,
whether with respect to the Specially Serviced Mortgage Loans or otherwise,
shall terminate; provided, that in no event shall the termination of the Special
Servicer be effective until the Trustee or other successor Special Servicer
shall have succeeded the Special Servicer as successor Special Servicer,
notified the Special Servicer of such designation, and such successor Special
Servicer shall have assumed the Special Servicer's obligations and
responsibilities, as set forth in an agreement substantially in the form hereof,
with respect to the Specially Serviced Mortgage Loans. The Trustee or other
successor Special Servicer may not succeed the Special Servicer as Special
Servicer until and unless it has satisfied the provisions that would apply to a
Person succeeding to the business of the Special Servicer pursuant to Section
9.20 hereof. The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Special Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination. The Special Servicer agrees to cooperate with the Trustee and the
Fiscal Agent in effecting the termination of the Special Servicer's
responsibilities and rights hereunder as Special Servicer including, without
limitation, providing the Trustee all documents and records in electronic or
other form reasonably requested by it to enable the successor Special Servicer
designated by the Trustee to assume the Special Servicer's functions hereunder
and to effect the transfer to such successor for administration by it of all
amounts which shall at the time be or should have been deposited by the Special
Servicer in any REO Account and any other account or fund maintained or
thereafter received with respect to the Specially Serviced Mortgage Loans.
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(c) If the Special Servicer receives a written notice of
termination pursuant to clause (ii) of Section 9.30(a) relating solely to an
event set forth in Section 9.30(b)(v), (vi) or (vii), and if the Special
Servicer provides the Trustee with the appropriate "request for proposal"
materials within five Business Days after receipt of such written notice of
termination, then the Trustee shall promptly thereafter (using such "request for
proposal" materials provided by the Special Servicer) solicit good faith bids
for the rights to be appointed as Special Servicer under this Agreement from at
least three Qualified Bidders or, if three Qualified Bidders cannot be located,
then from as many persons as the Trustee can determine are Qualified Bidders. At
the Trustee's request, the Special Servicer shall supply the Trustee with the
names of Persons from whom to solicit such bids. In no event shall the Trustee
be responsible if less than three Qualified Bidders submit bids for the right to
service the Mortgage Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as
a condition of its bid, to enter into this Agreement as successor Special
Servicer, and to agree to be bound by the terms hereof, not later than 30 days
after termination of the Special Servicer hereunder. The Trustee shall select
the Qualified Bidder with the highest cash bid (or such other Qualified Bidder
as the Master Servicer may direct) that is also acceptable to the Operating
Adviser (the "Successful Bidder") to act as successor Special Servicer
hereunder. If no bidder is acceptable to the Operating Adviser, the Operating
Adviser shall appoint the successor Special Servicer after consultation with the
Controlling Class, provided that the successor Special Servicer so appointed
must be bound by the terms of this Agreement. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Special Servicer
pursuant to the terms hereof not later than 30 days after the termination of the
Special Servicer hereunder, and in connection therewith to deliver the amount of
the Successful Bidder's cash bid to the Trustee by wire transfer of immediately
available funds to an account specified by the Trustee no later than 10:00 a.m.
New York City time on the date specified for the assignment and assumption of
the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing right
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Special Servicer
the amount of such cash bid received from the Successful Bidder (net of
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Special Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this
Agreement as successor Special within 30 days after the termination of the
Special Servicer hereunder or no Successful Bidder was identified within such
30-day period, the Trustee shall have no further obligations under Section
9.31(c) and may act or may select another successor to act as Special Servicer
hereunder in accordance with Section 9.31(b).
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced Mortgage
Loan, shall provide to the Master Servicer and the Trustee on or prior to the
Determination Date for each month, a Special Servicer Monthly Report
substantially in the form of Exhibit O or in such
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electronic format as is mutually acceptable to the Master Servicer and the
Special Servicer. The Master Servicer, and the Trustee may use such reports or
information contained therein to prepare its reports and the Master Servicer
may, at its option, forward such Special Servicer Monthly Reports directly to
the Depositor and the Rating Agencies. The Special Servicer Monthly Report shall
be substantially in the form of Exhibit O and shall contain a narrative
description for each Specially Serviced Mortgage Loan of the current status of
such Loan including the status of any workout or foreclosure, the change in such
status since the prior Special Servicer Monthly Report, and other information
described in Exhibit O.
(b) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination with
respect to any Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than the ten Business Day
following such Final Recovery Determination.
(c) The Special Servicer shall provide to the Master Servicer
or the Trustee at the reasonable request in writing of the Master Servicer or
Trustee, any information in its possession with respect to the Specially
Serviced Mortgage Loans which the Master Servicer or Trustee, as the case may
be, shall require in order for the Master Servicer or Trustee to comply with its
obligations under this Agreement; provided that the Special Servicer shall not
be required to take any action or provide any information that the Special
Servicer determines will result in any material cost or expense to which it is
not entitled to reimbursement hereunder or will result in any material liability
for which it is not indemnified hereunder. The Master Servicer will provide the
Special Servicer at the request of the Special Servicer any information in its
possession with respect to the Mortgage Loans which the Master Servicer shall
require in order for the Special Servicer to comply with its obligations under
this Agreement.
(d) Not later than 20 days after each Special Servicer
Remittance Date, the Special Servicer shall forward to the Master Servicer a
statement setting forth the status of each REO Account as of the close of
business on such Special Servicer Remittance Date, stating that all remittances
required to be made by it as required by this Agreement to be made by the
Special Servicer have been made (or, if any required distribution has not been
made by the Special Servicer, specifying the nature and status thereof) and
showing, for the period from the day following the preceding Special Servicer
Remittance Date to such Special Servicer Remittance Date, the aggregate of
deposits into and withdrawals from each REO Account for each category of deposit
specified in Section 5.1 of this Agreement and each category of withdrawal
specified in Section 5.2 of this Agreement.
(e) The Special Servicer shall use reasonable efforts to
obtain and, to the extent obtained, to deliver to the Master Servicer, the
Trustee, the Rating Agencies and the Operating Adviser, on or before April 15 of
each year, commencing with April 15, 2000, (i) copies of the prior year
operating statements and quarterly statements, if available, for each Mortgaged
Property underlying a Specially Serviced Mortgage Loan or REO Property as of its
fiscal year end, provided that either the related Mortgage Note or Mortgage
requires the Mortgagor to provide such information, or if the related Mortgage
Loan has become an REO Property, (ii) a copy of the most recent rent roll
available for each Mortgaged Property, and (iii)
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a table, setting forth the Debt Service Coverage Ratio and occupancy with
respect to each Mortgaged Property covered by the operating statements delivered
above.
(f) The Special Servicer shall deliver to the Master Servicer,
the Depositor and the Trustee all such other information with respect to the
Specially Serviced Mortgage Loans at such times and to such extent as the Master
Servicer, the Trustee or Depositor may from time to time reasonably request;
provided, however, that the Special Servicer shall not be required to produce
any ad hoc non-standard written reports with respect to such Mortgage Loans
except if any Person (other than the Trustee) requesting such report pays a
reasonable fee to be determined by the Special Servicer.
(g) The Special Servicer shall deliver a written Inspection
Report of each Specially Serviced Mortgage Loan in accordance with Section
9.4(b).
(h) The Special Servicer shall provide as soon as practicable
after a Mortgage Loan becomes a Specially Serviced Mortgage Loan, to the Master
Servicer its estimate of the net recoverable amount to the Certificateholders
and anticipated expenses in connection therewith (and a general description of
the plan to achieve such recovery) of such Specially Serviced Mortgage Loan and
other information reasonably requested by the Master Servicer. The Special
Servicer shall update such information on a quarterly basis.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER
SERVICER.
(a) The Special Servicer shall furnish on a timely basis such
reports, certifications, and information as are reasonably requested by the
Master Servicer, the Primary Servicers or Trustee to enable it to perform its
duties under this Agreement or the Primary Servicing Agreements, as applicable;
provided that no such request shall (i) require or cause the Special Servicer to
violate the Code, any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the servicing standards set
forth in this Agreement and to maintain the REMIC status of any REMIC Pool or
(ii) expose the Special Servicer, the Trust, the Fiscal Agent or the Trustee to
liability or materially expand the scope of the Special Servicer's
responsibilities under this Agreement. In addition, the Special Servicer shall
notify the Master Servicer of all expenditures incurred by it with respect to
the Specially Serviced Mortgage Loans which are required to be made by the
Master Servicer as Servicing Advances as provided herein, subject to the
provisions of Section 4.4 hereof. The Special Servicer shall also remit all
invoices relating to Servicing Advances promptly upon receipt of such invoices.
(b) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters, the expense of which shall be charged to the Operating
Adviser, but in no event shall such costs be an expense of the Trust:
(i) whether the foreclosure of a Mortgaged Property relating
to a Specially Serviced Mortgage Loan would be in the best economic interest of
the Trust;
(ii) if the Special Servicer elects to proceed with a
foreclosure, whether a deficiency judgment should or should not be sought
because the likely recovery will or will not be sufficient to warrant the cost,
time and exposure of pursuing such judgment;
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(iii) whether the waiver or enforcement of any "due-on-sale"
clause or "due-on-encumbrance" clause contained in a Mortgage Loan or a
Specially Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption agreement
from or with a person to whom a Mortgaged Property securing a Specially Serviced
Mortgage Loan has been or is about to be conveyed, or to release the original
Mortgagor from liability upon a Specially Serviced Mortgage Loan and substitute
a new Mortgagor, and whether the credit status of the prospective new Mortgagor
is in compliance with the Special Servicer's regular commercial mortgage
origination or servicing standard;
(v) in connection with the foreclosure on a Specially Serviced
Mortgage Loan secured by a Mortgaged Property which is not in compliance with
CERCLA, or any comparable environmental law, whether it is in the best economic
interest of the Trust to bring the Mortgaged Property into compliance therewith
and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which shall
include any proposed release, substitution or addition of collateral),
extension, waiver, amendment, discounted payoff or sale of a Mortgage Loan,
prepare a summary of such proposed action and an analysis of whether or not such
action is reasonably likely to produce a greater recovery on a present value
basis than liquidation of such Mortgage Loan; such analysis shall specify the
basis on which the Special Servicer made such determination, including the
status of any existing material default or the grounds for concluding that a
payment default is imminent.
SECTION 9.34 CERTAIN REMIC LIMITATIONS ON MODIFICATION OF
SPECIALLY SERVICED MORTGAGE LOANS. Notwithstanding anything to the contrary in
this Agreement, the Special Servicer shall not permit any modification of any
Money Term of a Specially Serviced Mortgage Loan unless (i) the Special Servicer
shall have received a Nondisqualification Opinion or a ruling from the Internal
Revenue Service to the effect that such modification would not
be treated as an
exchange pursuant to Section 1001 of the Code (or, if it would be so treated,
would not be treated as a "significant modification" for purposes of Treasury
Regulations Section 1.860G-2(b) of the Code), the reasonable cost of which
opinion shall be an expense of the Trust or (ii) such modification meets the
requirements set forth in Section 9.5.
SECTION 9.35 [RESERVED.]
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS AND REO
PROPERTIES.
(a) Any of (i) the Master Servicer, (ii) the Special Servicer,
(iii) any holder of Certificates evidencing a majority interest in the
Controlling Class and (iv) each of the Sellers with respect to the Mortgage
Loans it originated, in that order, has the right to purchase from the Trust, at
the applicable Purchase Price, those defaulted Mortgage Loans that are at least
sixty (60) days delinquent and which the Special Servicer has determined, in its
reasonable good faith judgment, in accordance with the Servicing Standard, will
become the subject of foreclosure proceedings (other than any such Mortgage Loan
that it determines, in its reasonable good faith judgment, in accordance with
the Servicing Standard, is in default to avoid a prepayment restriction).
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The Special Servicer may, after providing notice to the
Operating Adviser and the Trustee, subject to the limitations in paragraph (d)
below, offer to sell for cash to any Person, for an amount equal to the Purchase
Price therefor, any REO Property or Defaulted Mortgage Loan not otherwise
purchased pursuant to the prior paragraph (other than any such Mortgage Loan
that it determines, in its reasonable good faith judgment, in accordance with
the Servicing Standard, is in default to avoid a prepayment restriction), if and
when the Special Servicer determines, consistent with the Servicing Standard,
that such a sale would be in the best economic interests of the Trust. In the
case of REO Property, the Special Servicer shall offer to sell such REO Property
no later than the time determined by the Special Servicer to be sufficient to
result in the sale of such REO Property on or prior to the date specified in
Section 9.15 and in any event prior to the Final Rated Distribution Date. The
Special Servicer shall give the Operating Adviser, the Master Servicer and the
Trustee not less than five days' prior written notice of its intention to sell
any such Defaulted Mortgage Loan or REO Property, and in respect of such sale,
the Special Servicer shall offer such Defaulted Mortgage Loan or REO Property in
a commercially reasonable manner for a period of not less than thirty days.
Unless the Special Servicer determines that acceptance, in
accordance with the Servicing Standard, of any offer would not be in the best
economic interests of the Trust, the Special Servicer shall accept the highest
cash offer received from any Person that constitutes a fair price (which may be
less than the Purchase Price) for such Defaulted Mortgage Loan or REO Property.
Notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Mortgage Loan or any REO Property. In addition, the Special Servicer
may accept a lower bid (including a bid lower than the Purchase Price) of a
Person other than an Interested Person or the Operating Adviser, if any, if it
determines, in accordance with the Servicing Standard, that acceptance of such
bid would be in the best interests of the Certificateholders (for example, if
the prospective buyer making the lower bid is more likely to perform its
obligations, or the terms offered by the prospective buyer making the lower bid
are more favorable), provided, that if any Defaulted Mortgage Loan or REO
Property as to which an Appraisal Reduction has occurred is to be sold by the
Special Servicer, the Special Servicer shall not, without the approval of the
Operating Adviser, if any, accept any bid for such loan or property that is less
than 90% of the appraised value of the related Mortgaged Property (based on the
appraisal used in determining the related Appraisal Reduction). The Special
Servicer, after notice to the Operating Adviser, if any, shall determine no
later than six months prior to the end of the three-year period referred in
Section 9.15 with respect to any REO Property whether a sale of such REO
Property pursuant to any bids being made with respect thereto is in the best
economic interests of the Certificateholders as a whole. If the Special Servicer
so determines in accordance with the Servicing Standard after notice to the
Operating Adviser, if any, that such a sale would not be in the best interests
of the Certificateholders, the Special Servicer shall seek an extension of such
period in the manner described in Section 9.15.
In determining whether any bid received from an Interested
Person or whether the price to be paid by the Special Servicer or any Affiliate
thereof represents a fair price or market value for any Defaulted Mortgage Loan
or any REO Property, the Special Servicer is required to request that the
Trustee make a determination as to whether such bid constitutes a fair price.
Upon request of the Special Servicer to make such a determination, the Trustee
will, within a reasonable period of time (but in no event more than 10 Business
Days), make such a
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determination based solely and conclusively upon an Appraisal of such REO
Property by an Independent MAI-designated appraiser selected by the Trustee at
the expense of the Trust. In determining whether any bid constitutes a fair
price or market value for any Defaulted Mortgage Loan or any REO Property, the
Special Servicer shall take into account, among other factors, the period and
amount of any delinquency on the affected Defaulted Mortgage Loan, the physical
condition of the related Mortgaged Property or such REO Property, the state of
the local economy and the Trust's obligation to dispose of any REO Property
within the three-year period specified in Section 9.15.
(b) Subject to the REMIC Provisions, the Special Servicer
shall act on behalf of the Trust in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Defaulted Mortgage
Loan or REO Property, including the collection of all amounts payable in
connection therewith. Any sale of a Defaulted Mortgage Loan or REO Property
shall be without recourse to, or representation or warranty by, the Trustee, the
Fiscal Agent, the Depositor, the Special Servicer, the Master Servicer, or the
Trust. Notwithstanding the foregoing, nothing herein shall limit the liability
of the Master Servicer, the Special Servicer or the Trustee to the Trust and the
Certificateholders for failure to perform its duties in accordance herewith.
None of the Special Servicer, the Master Servicer, the Depositor, the Fiscal
Agent or the Trustee shall have any liability to the Trust or any
Certificateholder with respect to the price at which a Defaulted Mortgage Loan
is sold if the sale is consummated in accordance with the terms of this
Agreement.
(c) The proceeds of any sale after deduction of the expenses
of such sale incurred in connection therewith shall be deposited within one
Business Day in the Certificate Account.
(d) Notwithstanding anything herein to the contrary, the
Special Servicer shall not be required to take or refrain from taking any action
pursuant to instructions from the Operating Adviser that would cause it to
violate any term or provision of this Agreement, including the REMIC Provisions
and the Servicing Standard.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class may elect the operating adviser (the "Operating
Adviser"). The Operating Adviser shall be elected for the purpose of receiving
reports and information from the Special Servicer in respect of the Specially
Serviced Mortgage Loans.
(b) An election of an Operating Adviser also shall be held
upon the resignation or removal of the Person acting as Operating Adviser.
Notice of the meeting of the Holders of the Controlling Class shall be mailed or
delivered to each Holder by the Trustee, at the direction of the Trustee not
less than 10 nor more than 60 days prior to the meeting. The notice shall state
the place and the time of the meeting, which may be held by telephone. A
majority of Certificate Balance of the Certificates of the then Controlling
Class, present in person or represented by proxy, shall constitute a quorum for
the nomination of an Operating Adviser. At the meeting, each Holder shall be
entitled to nominate one Person to act as Operating Adviser.
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The Trustee shall cause the election of the Operating Adviser to be held as soon
thereafter as is reasonably practicable.
(c) Each Holder of the Certificates of the Controlling Class
shall be entitled to vote in each election of the Operating Adviser. The voting
in each election of the Operating Adviser shall be in writing mailed,
telecopied, delivered or sent by courier and actually received by the Trustee on
or prior to the date of such election. Immediately upon receipt by the Trustee
of votes (which have not been rescinded) from the Holders of Certificates
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class which are cast for a single Person, such Person shall be,
upon such Person's acceptance, the Operating Adviser. Until an Operating Advisor
is elected or in the event that an Operating Adviser shall have resigned or been
removed and a successor Operating Adviser shall not have been elected, there
shall be no Operating Adviser.
(d) The Operating Adviser may be removed at any time by the
written vote, copies of which must be delivered to the Trustee, of more than 50%
of the Certificate Balance of the Holders of the Certificates of the then
Controlling Class.
(e) The Trustee shall act as judge of each election and,
absent manifest error, the determination of the results of any election by the
Trustee shall be conclusive. Notwithstanding any other provisions of this
Section 9.37, the Trustee may make such reasonable regulations as it may deem
advisable for any election.
(f) Notwithstanding any provision of this Section 9.37 or any
other provision of this Agreement to the contrary, at any time that the Special
Servicer has been elected as Operating Adviser or no Operating Adviser has been
elected, (i) the Special Servicer shall not be required to deliver notices or
information to, or obtain the consent or approval of, the Operating Adviser and
(ii) to the extent any Person other than the Special Servicer is otherwise
required hereunder to provide notices or information to, or obtain the consent
or approval of, the Operating Adviser, such Person shall be required to provide
such notices or information to, or obtain the consent or approval of, the
Special Servicer.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The
Operating Adviser shall have no liability to the Trust or the Certificateholders
for any action taken, or for refraining from the taking of any action, in good
faith and using reasonable business judgment pursuant to this Agreement, or
using reasonable business judgment. By its acceptance of a Certificate, each
Certificateholder (and Certificate Owner) confirms its understanding that the
Operating Adviser may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that the
Operating Adviser may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates and each
Certificateholder (and Certificate Owner) agrees to take no action against the
Operating Adviser based upon such special relationship or conflict.
Notwithstanding any term in this Agreement, the Special Servicer shall not be
entitled to indemnification from the Trust for any action taken by it at the
direction of the Operating Adviser which is in conflict with the Servicing
Standard.
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SECTION 9.39 DUTIES OF OPERATING ADVISER. The Operating
Adviser may advise, and receive notice from, the Special Servicer, but is not
required to do so on any of the following actions:
(i) any foreclosure upon or comparable conversion (which may
include acquisition of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification of a Money Term of a Mortgage Loan other
than a modification consisting of the extension of the original Maturity Date of
a Mortgage Loan for two years or less;
(iii) any proposed sale of a Defaulted Mortgage Loan (other
than upon termination of the Trust pursuant to Article X);
(iv) any determination to bring an REO Property into
compliance with Environmental Laws; and
(v) any acceptance of substitute or additional collateral for
a Mortgage Loan.
In addition, the Operating Adviser may direct the Trustee to
remove the Special Servicer at any time upon the appointment and acceptance of
such appointment by a successor to the Special Servicer; provided that, prior to
the effectiveness of any such appointment, the Trustee shall have received (A)
Rating Agency Confirmation from each Rating Agency and (B) a Nondisqualification
Opinion (which shall not be an expense of the Trustee or the Trust).
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 10.1 TERMINATION OF TRUST UPON REPURCHASE OR
LIQUIDATION OF ALL MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee
created hereby (other than the obligation of the Trustee, to make payments to
the Class R-I Certificateholders, the Class R-II Certificateholders and REMIC
III Certificateholders as set forth in Section 10.2 and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders) or (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) or (iii) the termination of the
Trust pursuant to Section 10.1(c) below; provided that in no event shall the
Trust created hereby continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof.
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(b) The Master Servicer shall give the Trustee notice of the
date when the Aggregate Certificate Balance of the Certificates, after giving
effect to distributions of principal made on the next Distribution Date, is less
than or equal to one percent (1%) of the initial Aggregate Certificate Balance
of the Certificates as of the Cut-Off Date. The Trustee shall promptly forward
such notice to the Depositor, the Master Servicer, the Special Servicer and the
Holders of the Class R-I Certificates, who in such priority (and in the case of
the Class R-I Certificateholders, a majority of the Class R-I
Certificateholders), may purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust. If any party desires to exercise
such option, it will notify the Trustee who will notify any party with a prior
right to exercise such option. If any party that has been provided notice by the
Trustee notifies the Trustee within ten Business Days after receiving notice of
the proposed purchase that it wishes to purchase the assets of the Trust, then
such party (or, in the event that more than one of such parties notifies the
Trustee that it wishes to purchase the assets of the Trust, the party with the
first right to purchase the assets of the Trust) may purchase the assets of the
Trust in accordance with this Agreement. Upon the Trustee's receipt of the
Termination Price set forth below, the Trustee shall promptly release or cause
to be released to the Master Servicer for the benefit of the Depositor, the
Holder of the majority of the Class R-I Certificates, the Special Servicer or
the Master Servicer, as the case may be, the Mortgage Files pertaining to the
Mortgage Loans. The "Termination Price" shall equal 100% of the aggregate
Principal Balances of the Mortgage Loans (other than Mortgage Loans as to which
a Final Recovery Determination has been made) on the day of such purchase plus
accrued and unpaid interest thereon at the applicable Mortgage Rates (or
Mortgage Rates less the Master Servicing Fee Rate if the Master Servicer is the
Purchaser), with respect to the Mortgage Loans to the Due Date for each Mortgage
Loan ending in the Collection Period with respect to which such purchase occurs,
plus unreimbursed Advances and interest on such unreimbursed Advances at the
Advance Rate, and the fair market value of any other property remaining in REMIC
I. The Trustee shall consult with the Placement Agents and the Underwriters or
their respective successors, as advisers, in order for the Trustee to determine
whether the fair market value of the property constituting the Trust has been
offered; provided that, if either Placement Agent or Underwriter or an Affiliate
of the Placement Agents or Underwriters is exercising its right to purchase the
Trust assets, the Trustee shall consult with the Operating Adviser in order for
the Trustee to determine the fair market value, provided that the Operating
Adviser is not an Affiliate of the Depositor, the Class R-I Holder, the Special
Servicer or the Master Servicer, or a third party chosen by the Depositor unless
the Depositor is bidding for such property, or the Trustee (the fees and
expenses of which shall be paid for by buyer of the property). As a condition to
the purchase of the Trust pursuant to this Section 10.1(b), the Depositor, the
Holder of the majority of the Class R-I Certificates, the Special Servicer or
the Master Servicer, as the case may be, must deliver to the Trustee an Opinion
of Counsel, which shall be at the expense of the Depositor, such Holders, the
Special Servicer or the Master Servicer, as the case may be, stating that such
termination will be a "qualified liquidation" under section 860F(a)(4) of the
Code. Such purchase shall be made in accordance with Section 10.3.
(c) If at any time the Holders of the Class R-I Certificates
own 100% of the REMIC III Interests such Holders may terminate REMIC I (which
will in turn result in the termination of REMIC II and REMIC III) upon (i) the
delivery to the Trustee and the Depositor of an Opinion of Counsel (which
opinion shall be at the expense of such Holders) stating that such termination
will be a "qualified liquidation" of each REMIC under Section 860F of the
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Code, and (ii) the payment of any and all costs associated with such
termination. Such termination shall be made in accordance with Section 10.3.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of
Section 10.1, specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Trustee by first class mail to the
Rating Agencies, the Class R-I, Class R-II and REMIC III Certificateholders
mailed no later than ten days prior to the date of such termination. Such notice
shall specify (A) the Distribution Date upon which final distribution on the
Class R-I, Class R-II and REMIC III Certificates will be made, and upon
presentation and surrender of the Class R-I, Class R-II and REMIC III
Certificates at the office or agency of the Certificate Registrar therein
specified, and (B) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distribution being made only upon
presentation and surrender of the Class R-I, Class R-II, and REMIC III
Certificates at the office or agency of the Certificate Registrar therein
specified. The Trustee shall give such notice to the Depositor and the
Certificate Registrar at the time such notice is given to Holders of the Class
R-I, Class R-II and REMIC III Certificates. Upon any such termination, the
duties of the Certificate Registrar with respect to the Class R-I, Class R-II
and REMIC III Certificates shall terminate and the Trustee shall terminate, or
request the Master Servicer to terminate, the Certificate Account and the
Distribution Account and any other account or fund maintained with respect to
the Certificates, subject to the Trustee's obligation hereunder to hold all
amounts payable to the Class R-I, Class R-II and REMIC III Certificateholders in
trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender
their certificates evidencing the Class R-I, Class R-II and REMIC III
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Certificate Registrar shall give a
second written notice to the remaining Class R-I, Class R-II and REMIC III
Certificateholders to surrender their certificates evidencing the Class R-I,
Class R-II and REMIC III Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
any Class R-I, Class R-II and REMIC III Certificates shall not have been
surrendered for cancellation, the Certificate Registrar may take appropriate
steps to contact the remaining Class R-I, Class R-II and REMIC III
Certificateholders concerning surrender of such certificates, and the cost
thereof shall be paid out of the amounts distributable to such Holders. If
within two years after the second notice any such Class R-I, Class R-II and
REMIC III Certificates shall not have been surrendered for cancellation, the
Trustee shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed to a
Class R-I, Class R-II and REMIC III Certificateholders due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section. Any money held by
the Trustee pending distribution under this Section 10.2 after 90 days after the
adoption of a plan of complete liquidation shall be deemed for tax purposes to
have been distributed from the REMICs and shall be beneficially owned by the
related Holder.
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SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC shall be terminated in accordance
with the following additional requirements, unless at the request of the Master
Servicer or the Class R-I Certificateholders, as the case may be, the Trustee
seeks, and the Trustee subsequently receives an Opinion of Counsel (at the
expense of the Master Servicer or the Class R-I Certificateholders, as the case
may be), addressed to the Depositor, the Trustee to the effect that the failure
of the Trust to comply with the requirements of this Section 10.3 will not (i)
result in the imposition of taxes on "prohibited transactions" on any REMIC
under the REMIC Provisions or (ii) cause any REMIC Pool to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the
final payment on the REMIC III Certificates the Master Servicer shall prepare
and the Trustee on behalf of the REMIC I Interests, REMIC II or REMIC III shall
adopt a plan of complete liquidation of the REMIC I Pool, meeting the
requirements of a qualified liquidation under the REMIC Provisions, which plan
shall be signed by the Trustee; provided that the Trustee shall have no
obligation to determine the accuracy or adequacy of such plan of liquidation
other than that such plan of liquidation meets the requirements outlined in
Sections 10.1, 10.2 and 10.3;
(ii) At or after the time of adoption of such a plan of
complete liquidation and at or prior to the time of making of the final payment
on the REMIC III Certificates, the Trustee shall sell all of the assets of the
Trust for cash at the Termination Price; provided that if the Holders of the
Class R-I Certificates are purchasing the assets of the Trust, the amount to be
paid by such Holders may be paid net of the amount to be paid to such Holders as
final distributions on any Certificates held by such Holders;
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be distributed
or credited, (A) to the Holders of the Class R-I Certificates all assets of
REMIC I remaining after such final payment of the REMIC Interests, (B) to the
Holders of the Class R-II Certificates all remaining assets of REMIC II and (C)
to the Holders of the Class R-III Certificates all remaining assets of REMIC III
(in each case other than cash retained to meet claims), and the Trust shall
terminate at that time; and
(iv) In no event may the final payment on the REMIC I Regular
Interests, REMIC II Regular Interests or REMIC Regular Certificates or the final
distribution or credit to the Holders of the Residual Certificates,
respectively, be made after the 89th day from the date on which the plan of
complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II or Class
R-III Certificates, respectively, the Holders thereof hereby (i) authorize the
Trustee to take such action as may be necessary to adopt a plan of complete
liquidation of the REMIC Pool and (ii) agree to take such other action as may be
necessary to adopt a plan of complete liquidation of the Trust upon the written
request of the Depositor, which authorization shall be binding upon all
successor Class R-I, Class R-II and Class R-III Certificateholders,
respectively.
(c) On the final federal income tax return for each REMIC
Pool, the Trustee shall attach a statement specifying the date of the adoption
of the plan of liquidation.
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ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
The provisions of this Article XI shall apply to each of the
REMIC I Regular Interests, REMIC II Regular Interests, REMIC Regular
Certificateholders and Residual Certificateholders to the extent appropriate.
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer or
operation and management of the Trust, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
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SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within fifteen days after receipt by the Certificate Registrar of a request by
the Trustee in writing, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Certificateholders of each Class as
of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special Servicer, the
Master Servicer, or three or more Holders (hereinafter referred to as
"applicants," with a single Person which (together with its Affiliates) is the
Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Trustee, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, send, at such Person's expense, the written communication
proffered by the applicants to all Certificateholders at their addresses as they
appear in the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate, agrees with
the Depositor, the Certificate Registrar, the Master Servicer and the Trustee
that neither the Depositor, the Certificate Registrar, the Master Servicer nor
the Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Certificateholders hereunder,
regardless of the source from which such information was derived.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor.
Such instrument or instruments (as the action embodies therein and evidenced
thereby) are herein sometimes referred to as an "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agents shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee and the Depositor, if made in
the manner provided in this Section. The Trustee agrees to promptly notify the
Depositor of any such instrument or instruments received by it, and to promptly
forward copies of the same.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or other officer
the execution thereof. Whenever such execution is by an officer of a corporation
or
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a member of a partnership on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of such
officer's or member's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Trustee) shall
be proved by the Certificate Register, and neither the Trustee nor the Depositor
shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee or
the Depositor in reliance thereon, whether or not notation of such action is
made upon such Certificate.
ARTICLE XII
REMIC ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool.
SECTION 12.1 REMIC ADMINISTRATION.
(a) An election will be made by the Trustee to treat the segregated
pool of assets consisting of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and the Distribution Account, the
Insurance Policies and any REO Properties as a REMIC under the Code. Such
election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the REMIC I Interests are issued.
For purposes of such election, the REMIC I Regular Interests shall each be
designated as a separate class of "regular interests" in the REMIC I and the
Class R-I Certificates shall be designated as the sole class of "residual
interests" in the REMIC I. The Trustee shall not permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in any of the
REMICs other than the REMIC I, REMIC II and REMIC III Regular Interests and the
Residual Certificates.
An election will be made by the Trustee to treat the segregated pool of
assets consisting of the REMIC I Regular Interests as a REMIC under the Code.
Such election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the REMIC II Interest is issued.
For the purposes of such election, the REMIC II Regular Interests shall be
designated as the "regular interests" in REMIC II and the Class R-II
Certificates shall be designated as the sole class of the "residual interests"
in REMIC II.
An election will be made by the Trustee to treat the segregated pool of
assets consisting of the REMIC II Regular Interests as a REMIC under the Code.
Such election will be
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made on Form 1066 or other appropriate federal tax or information return or
any appropriate state return for the taxable year ending on the last day of the
calendar year in which the REMIC III Certificates are issued. For purposes of
such election, the Class A-1, Class A-2, Class X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O and Class P Certificates shall be designated as the "regular interests"
in REMIC III and the Class R-III Certificates shall be designated as the sole
class of "residual interests" in REMIC III.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall pay all routine tax related expenses (not
including any taxes, however denominated, including any additions to tax,
penalties and interest) of each REMIC Pool, excluding any professional fees or
extraordinary expenses related to audits or any administrative or judicial
proceedings with respect to each REMIC Pool that involve the Internal Revenue
Service or state tax authorities.
(d) The Trustee shall cause to be prepared, signed, and timely filed
with the Internal Revenue Service, on behalf of each REMIC Pool, an application
for a taxpayer identification number for such REMIC Pool on Internal Revenue
Service Form SS-4. The Trustee, upon receipt from the Internal Revenue Service
of the Notice of Taxpayer Identification Number Assigned, shall promptly forward
a copy of such notice to the Depositor and the Master Servicer. The Trustee
shall prepare and file Form 8811 on behalf of each REMIC Pool and shall
designate an appropriate Person to respond to inquiries by or on behalf of
Certificateholders for original issue discount and related information in
accordance with applicable provisions of the Code.
(e) The Trustee shall prepare and file all of each REMIC Pool's federal
and state income or franchise tax and information returns as such REMIC Pool
direct representative; the expenses of preparing such returns shall be borne by
the Trustee and the cost of filing such returns shall be borne by the applicable
REMIC Pool, except that if additional state tax returns are required to be filed
in more than three states, the Trustee shall be entitled, with respect to any
such additional filings, to (i) be paid a reasonable fee and (ii) receive its
reasonable costs and expenses, both as amounts reimbursable pursuant to Section
5.2(a)(vi) hereof. The Depositor, the Master Servicer and the Special Servicer
shall provide on a timely basis to the Trustee or its designee such information
with respect to the Trust or any REMIC Pool as is in its possession, which the
Depositor or the Master Servicer and the Special Servicer has received or
prepared by virtue of its role as Depositor or Master Servicer and the Special
Servicer hereunder and reasonably requested by the Trustee to enable it to
perform its obligations under this subsection, and the Trustee shall be entitled
to conclusively rely on such information in the performance of its obligations
hereunder. The Depositor shall indemnify the Trust and the Trustee and the
Fiscal Agent for any liability or assessment against any of them or cost or
expense (including attorneys' fees) incurred by them resulting from any error
resulting from bad faith, negligence, or willful malfeasance of the Depositor in
providing any information for which the Depositor is responsible for preparing.
The Master Servicer and the Special Servicer shall indemnify the Trustee, the
Fiscal Agent and the Depositor for any liability or assessment against the
Trustee, the Fiscal Agent, the Depositor or any REMIC Pool and any expenses
incurred in connection
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with such liability or assessment (including attorney's fees) resulting from any
error in any of such tax or information returns resulting from errors in the
information provided by the Master Servicer or the Special Servicer, as the case
may, be or caused by the negligence, willful misconduct or bad faith of the
Master Servicer or the Special Servicer, as the case may be. The Trustee shall
indemnify the Master Servicer, the Depositor or any REMIC Pool for any expense
incurred by the Master Servicer, the Depositor and any REMIC Pool resulting from
any error in any of such tax or information returns resulting from errors in the
preparation of such returns caused by the negligence, willful misconduct or bad
faith of the Trustee. Each indemnified party shall immediately notify the
indemnifying party or parties of the existence of a claim for indemnification
under this Section 12.1(e), and provide the indemnifying party or parties, at
the expense of such indemnifying party or parties, an opportunity to contest the
tax or assessment or expense giving rise to such claim, provided that the
failure to give such notification rights shall not affect the indemnification
rights in favor of any REMIC Pool under this Section 12.1(e). Any such
indemnification shall survive the resignation or termination of the Master
Servicer or the Special Servicer, or the termination of this Agreement.
(f) The Trustee shall perform on behalf of each REMIC all reporting and
other tax compliance duties that are the responsibility of such REMIC Pool under
the Code, REMIC Provisions, or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority. Among its other duties,
the Trustee shall provide (i) to the Internal Revenue Service or other Persons
(including, but not limited to, the Transferor of a Residual Certificate, to a
Disqualified Organization or to an agent that has acquired a Residual
Certificate on behalf of a Disqualified Organization) such information as is
necessary for the application of any tax relating to the transfer of a Residual
Certificate to any Disqualified Organization and (ii) to the Certificateholders
such information or reports as are required by the Code or REMIC Provisions.
(g) The Trustee shall forward to the Depositor copies of quarterly and
annual REMIC tax returns and Form 1099 information returns and such other
information within the control of the Trustee as the Depositor may reasonably
request in writing. Moreover, the Trustee shall forward to each
Certificateholder such forms and furnish such information within its control as
are required by the Code to be furnished to them, shall prepare and file with
the appropriate state authorities as may to the actual knowledge of a
Responsible Officer of the Trustee be required by applicable law and shall
prepare and disseminate to Certificateholders Forms 1099 (or otherwise furnish
information within the control of the Trustee) to the extent required by
applicable law. The Trustee will make available to any Certificateholder any tax
related information required to be made available to Certificateholders pursuant
to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in Class
R-I, Class R-II and Class R-III Certificates, respectively (or of the greatest
percentage of such Class R-I, Class R-II and Class R-III Certificates if no
Holder holds more than 50% thereof), shall be the applicable REMIC's Tax Matters
Person. The duties of the Tax Matters Person for each of the REMIC Pools are
hereby delegated to the Trustee and each Residual Certificateholder, by
acceptance of its Residual Certificate, agrees, on behalf of itself and all
successor holders of such Residual Certificate, to such delegation to the
Trustee as their agent and attorney in fact. If the Code or applicable
regulations prohibits the Trustee from signing any applicable Internal
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Revenue Service, court or other administrative documents or from acting as Tax
Matters Person (as an agent or otherwise), the Trustee shall take whatever
action is necessary for the signing of such documents and designation of a Tax
Matters Person, including the designation of such Residual Certificateholder.
The Trustee shall not be required to expend or risk its own funds or otherwise
incur any other financial liability in the performance of its duties hereunder
or in the exercise of any of its rights or powers (except to the extent of the
ordinary expenses of performing its duties under this Agreement), if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(i) The Trustee, the Holders of the Residual Certificates, the Master
Servicer and the Special Servicer shall each exercise reasonable care, to the
extent within its control, and with respect to each of the Trustee, the Master
Servicer and the Special Servicer, within the scope of its express duties, and
shall each act in accordance with this Agreement and the REMIC Provisions in
order to create and maintain the status of each REMIC Pool as a REMIC or, as
appropriate, adopt a plan of complete liquidation.
(j) The Trustee, the Master Servicer, the Special Servicer, the Fiscal
Agent and the Holders of Residual Certificates shall not take any action or fail
to take any action or cause any REMIC Pool to take any action or fail to take
any action if any of such persons knows or could, upon the exercise of
reasonable diligence, know, that, under the REMIC Provisions such action or
failure, as the case may be, could (i) endanger the status of any REMIC Pool as
a REMIC or (ii) result in the imposition of a tax upon any REMIC Pool (including
but not limited to the tax on prohibited transactions as defined in Code Section
860F(a)(2)) unless the Trustee have received an Opinion of Counsel (at the
expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition of
such a tax. Any action required under this section which would result in an
unusual or unexpected expense shall be undertaken at the expense of the party
seeking the Trustee or the Holders of the Residual Certificates to undertake
such action.
(k) In the event that any tax is imposed on REMIC I, REMIC II or REMIC
III, including, without limitation, "prohibited transactions" taxes as defined
in Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I, REMIC II or REMIC III after the Startup Day pursuant to Section
860G(d) of the Code, and any other tax imposed by the Code or any applicable
provisions of state or local tax laws (other than any tax permitted to be
incurred by the Special Servicer pursuant to Section 9.14(e)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the Trustee, if such tax arises out of or results from a breach of any of its
obligations under this Agreement; (ii) the Special Servicer, if such tax arises
out of or results from a breach by the Special Servicer of any of its
obligations under this Agreement; (iii) the Master Servicer, if such tax arises
out of or results from a breach by the Master Servicer of any of its obligations
under this Agreement; (iv) the Fiscal Agent, if such tax arises out of or
results from a breach by the Fiscal Agent of any of its obligations under this
Agreement; and (v) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 9.14(e) shall be charged to
and paid by the Trust from the net income generated on the
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related REO Property. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Trustee out of amounts on deposit in the Distribution
Account.
(l) The Trustee and, to the extent that records are maintained by the
Master Servicer or the Special Servicer in the normal course of its business,
the Master Servicer and the Special Servicer shall, for federal income tax
purposes, maintain books and records with respect to each REMIC Pool on a
calendar year and on an accrual basis. Notwithstanding anything to the contrary
contained herein, except to the extent provided otherwise in the Mortgage Loans
or in the Mortgages, all amounts collected on the Mortgage Loans shall, for
federal income tax purposes, be allocated first to interest due and payable on
the Mortgage Loans (including interest on overdue interest, other than
additional interest at a penalty rate payable following a default). The books
and records must be sufficient concerning the nature and amount of each REMIC
Pool's investments to show that such REMIC Pool has complied with the REMIC
Provisions.
(m) Neither the Trustee, the Master Servicer nor the Special Servicer
shall enter into any arrangement by which any REMIC Pool will receive a fee or
other compensation for services.
(n) In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee reasonably determines to be relevant for tax purposes on the valuations
and offering prices of the Certificates, including, without limitation, the
yield, prepayment assumption, issue prices and projected cash flows of the
Senior Certificates, Subordinate Certificates and Residual Certificates, as
applicable, and the projected cash flows of the Mortgage Loans. Thereafter, the
Depositor shall provide to the Trustee or its designee, promptly upon request
therefor, any such additional information or data within the Depositor's
possession or knowledge that the Trustee may, from time to time, reasonably
request in order to enable the Trustee to perform its duties as set forth
herein. The Trustee is hereby directed to use any and all such information or
data provided by the Depositor in the preparation of all federal and state
income or franchise tax and information returns and reports for each REMIC Pool
to Certificateholders as required herein. The Depositor hereby indemnifies the
Trustee, the Fiscal Agent, and each REMIC Pool for any losses, liabilities,
damages, claims, expenses (including attorneys' fees) or assessments against the
Trustee, the Fiscal Agent and each REMIC Pool arising from any errors or
miscalculations of the Trustee pursuant to this Section that result from any
failure of the Depositor to provide, or to cause to be provided, accurate
information or data to the Trustee (but not resulting from the methodology
employed by the Trustee) on a timely basis and such indemnification shall
survive the termination of this Agreement and the termination or resignation of
the Trustee and the Fiscal Agent.
The Trustee agrees that all such information or data so obtained by it
are to be regarded as confidential information and agrees that it shall use its
best reasonable efforts to retain in confidence, and shall ensure that its
officers, employees and representatives retain in confidence, and shall not
disclose, without the prior written consent of the Depositor, any or all of such
information or data, or make any use whatsoever (other than for the purposes
contemplated by this Agreement) of any such information or data without the
prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to
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be disclosed or is disclosed (i) to independent auditors and accountants,
counsel and other professional advisers of the Trustee and its parent, or (ii)
in connection with its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Master Servicer
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of REMIC
I as "qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(p) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" for each Class of Certificates
representing a regular interest in REMIC III, for each Class of REMIC I Regular
Interests and for each Class of REMIC II Regular Interests is the Final Rated
Distribution Date.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither the
Trustee the Master Servicer nor the Special Servicer shall permit the sale,
disposition or substitution of any of the Mortgage Loans (except in a
disposition pursuant to (i) the foreclosure or default of a Mortgage Loan, (ii)
the bankruptcy or insolvency of any REMIC Pool, (iii) the termination of any
REMIC Pool in a "qualified liquidation" as defined in Section 860F(a)(4) of the
Code, or (iv) a substitution pursuant to Article II hereof), nor acquire any
assets for the Trust, except as provided in Article II hereof, nor sell or
dispose of any investments in the Certificate Account or Distribution Account
for gain, nor accept any contributions to any REMIC Pool (other than a cash
contribution during the 3-month period beginning on the Startup Day), unless it
has received an Opinion of Counsel (at the expense of the Person requesting such
action) to the effect that such disposition, acquisition, substitution, or
acceptance will not (A) affect adversely the status of any REMIC Pool as a REMIC
or of the REMIC Certificates, other than the Residual Certificates, as the
regular interests therein, (B) affect the distribution of interest or principal
on the Certificates, (C) result in the encumbrance of the assets transferred or
assigned to any REMIC Pool (except pursuant to the provisions of this Agreement)
or (D) cause any REMIC Pool to be subject to a tax on "prohibited transactions"
or "prohibited contributions" or other tax pursuant to the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding anything
to the contrary in this Agreement, neither the Trustee, the Master Servicer nor
the Special Servicer shall permit any modification of any Money Term of a
Mortgage Loan or a Specially Serviced Mortgage Loan unless (i) the Trustee and
the Master Servicer have received a Nondisqualification Opinion or a ruling from
the Internal Revenue Service (at the expense of the party making the request
that the Master Servicer or the Special Servicer modify the Mortgage Loan or a
Specially Serviced Mortgage Loan) to the effect that such modification would not
be treated as an exchange pursuant to Section 1001 of the Code (or, if it would
be so treated, would not be treated as a "significant modification" for purposes
of Treas. Reg. Sec. 1.860G-2(B) of the Code) or (ii) such modification meets the
requirements set forth in Sections 8.18 or 9.5.
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS OF REMIC
STATUS. In the event that any REMIC Pool fails to qualify as a REMIC, loses its
status as a
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REMIC, or incurs state or local taxes, or tax as a result of a prohibited
transaction or prohibited contribution subject to taxation under the REMIC
Provisions due to the negligent performance by either the Trustee of its
respective duties and obligations set forth herein, the Trustee shall be liable
to the REMIC Pools and the Holders of the Residual Certificates for any and all
losses, claims, damages, liabilities or expenses ("Losses") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee shall not be liable for any such Losses attributable to the action
or inaction of the Master Servicer, the Special Servicer, the Depositor or the
Holders of such Residual Certificates nor for any such Losses resulting from any
actions or failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by the Master Servicer, the Special Servicer, the
Depositor or such Holders of the Residual Certificates on which the Trustee has
relied. The foregoing shall not be deemed to limit or restrict the rights and
remedies of the Holders of the Residual Certificates now or hereafter existing
at law or in equity. The Trustee shall be entitled to intervene in any
litigation in connection with the foregoing and to maintain control over its
defense.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof.
SECTION 13.3 AMENDMENT.
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust or this Agreement in the Private Placement Memorandum and in the
Preliminary Prospectus Supplement and Final Prospectus Supplement, or to correct
or supplement any provision herein which may be inconsistent with any other
provisions herein, (iii) to amend any provision hereof to the extent necessary
or desirable to maintain the status of each REMIC Pool as a REMIC for the
purposes of federal income tax law (or comparable provisions of state income tax
law), (iv) to make any other provisions with respect to matters or questions
arising under or with respect to this Agreement not inconsistent with the
provisions hereof, (v) to modify, add to or eliminate the provisions of Article
III relating to transfers of Residual Certificates or (vi) any other amendment
which does not adversely affect in any material respect the interests of any
Certificateholder (unless such Certificateholder
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consents). No such amendment effected pursuant to clause (i), (ii) or (iv) of
the preceding sentence shall (A) adversely affect in any material respect the
interests of any Holder not consenting thereto, and no amendment shall adversely
affect the status of any REMIC Pool as a REMIC without the consent of 100% of
the Certificateholders or (B) adversely affect the status of any REMIC Pool as a
REMIC. Prior to entering into any amendment without the consent of Holders
pursuant to this paragraph, the Trustee may require an Opinion of Counsel and a
Nondisqualification Opinion (in the case of clauses (i), (ii) and (iii), at the
expense of the Depositor, and otherwise at the expense of the party requesting
such amendment, except that if the Trustee requests such amendment, such
amendment shall be at the expense of the Depositor, if the Depositor consents),
to the effect that such amendment is permitted under this paragraph. Any such
amendment shall be deemed not to adversely affect in any material economic
respect any Holder if the Trustee receives written confirmation from each Rating
Agency that such amendment will not cause such Rating Agency to reduce, qualify
or withdraw the then current rating assigned to any of the rated Certificates
that were currently being rated by the Rating Agencies (and any Opinion of
Counsel requested by the Trustee in connection with any such amendment may rely
expressly on such confirmation as the basis therefor). The placement of an
"original issue discount" legend on, or any change required to correct any such
legend previously placed on, a Certificate shall not be deemed an amendment to
this Agreement.
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto (without the consent of the Certificateholders)
and with the written confirmation of the Rating Agencies that such amendment
would not cause the ratings on any Class of Certificates to be qualified,
withdrawn or downgraded; provided, however, that such amendment may not effect
any of the items set forth in clauses (i) through (iv) of the proviso in
paragraph (c) of this Section 13.3. The Trustee may request, at its option, to
receive a Nondisqualification Opinion and an Opinion of Counsel that any
amendment pursuant to this Section 13.3(b) is permitted by this Agreement at the
expense of the party requesting the amendment.
(c) This Agreement may also be amended from time to time by the parties
with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance of the Certificates then outstanding, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided that no such amendment may (i) reduce in any manner the amount
of, or delay the timing of the distributions required to be made on any
Certificate without the consent of the Holder of such Certificate, (ii) reduce
the aforesaid percentages of Aggregate Certificate Percentage or Certificate
Balance, the Holders of which are required to consent to any such amendment
without the consent of all the Holders of each Class of Certificates affected
thereby, (iii) no such amendment shall eliminate the Master Servicer's, the
Special Servicer's, the Trustee's or the Fiscal Agent's obligation to Advance or
alter the Servicing Standard except as may be necessary or desirable to comply
with the REMIC Provisions or (iv) adversely affect the status of any REMIC Pool
as a REMIC for federal income tax purposes (as evidenced by a
Nondisqualification Opinion) without the consent of 100% of the
Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders); provided that no such amendment may modify Section 8.18 of
this Agreement without the approval of the Rating Agencies. The Trustee may
request, at its option, to receive a Nondisqualification Opinion and an Opinion
of
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Counsel that any amendment pursuant to this Section 13.3(c) is permitted by this
Agreement at the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment shall be
borne by the Depositor in the case the Trustee is the party requesting such
amendment or if pursuant to clauses (i), (ii) and (iii) of Section 13.3(a). In
all other cases, the costs and expenses shall be borne by the party requesting
the amendment.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under this
Section 13.3 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Notwithstanding anything to the contrary contained in this Section
13.3, the parties hereto agree that this Agreement may not be amended in any
manner that is reasonably likely to have an adverse effect on any Primary
Servicer without first obtaining the written consent of such Primary Servicer.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
SECTION 13.5 NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given when received by
(A) in the case of the Depositor, Morgan Stanley Capital I Inc., 1585 Broadway,
New York, New York 10036, Attention: Russell Rahbany, with a copy to: Morgan
Stanley Capital I Inc., 1585 Broadway, New York, New York 10036, Attention:
General Counsel; (B) in the case of the Trustee and the Fiscal Agent at the
Corporate Trust Office; (C) in the case of the Master Servicer, Wells Fargo
Bank, National Association, 417 Montgomery Street, 5th Floor, San Francisco,
California 94111, Attention: Commercial Mortgage Servicing, with a copy to
Robert F. Darling, Esq., Wells Fargo Bank, National Association, 633 Folsom
Street, 7th Floor, San Francisco, California 94111; (D) in the case of the
Special Servicer, Wells Fargo Bank, National Association, 417 Montgomery Street,
5th Floor, San Francisco, California 94111, Attention: Commercial Mortgage
Servicing, with a copy to Robert F. Darling, Esq., Wells Fargo Bank, National
Association, 633 Folsom Street, 7th Floor, San Francisco, California 94111;(E)
in the case of the Principal Capital Management, LLC, 801 Grand Avenue, Des
Moines Iowa 50392, Attention: Patrick Halter, with a copy to Karen Pearston,
Esq.; and (F) in the case of JHREF, John Hancock Real Estate Finance, Inc., 200
Clarendon Street, Boston, Massachusetts 02117, Attention: M.W. Sam Davis, Senior
Vice President, with copies to the attention of Michael M. Epstein, Esq. and
Nathaniel I.
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<PAGE>
Margolis, Esq.;or as to each party such other address as may hereafter be
furnished by such party to the other parties in writing. Any notice required or
permitted to be mailed to a Holder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice.
SECTION 13.6 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 13.7 INDULGENCES; NO WAIVERS. Neither the failure nor any delay
on the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION. The headings
contained in this Agreement are for convenience of reference only, and shall not
be used in the interpretation hereof.
SECTION 13.9 BENEFITS OF AGREEMENT. Nothing in this Agreement or in the
Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder and the Holders of the
Certificates, any benefit or any legal or equitable right, power, remedy or
claim under this Agreement; provided, however, that each of the Primary
Servicers is an intended third-party beneficiary of the indemnities of the Trust
set forth in Section 8.25 of this Agreement. It is acknowledged that such
indemnities may be enforced by each of the Primary Servicers against the Trust
to the same extent as if they were parties hereto.
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Trustee shall give prompt notice to the Rating Agencies,
Special Servicer and the Operating Adviser of the occurrence of any of the
following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 13.3 hereof;
(ii) the Interim Certification and the Final Certification required
pursuant to Section 2.2 hereof;
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<PAGE>
(iii) notice of the repurchase of any Mortgage Loan pursuant to Section
2.3(a) hereof;
(iv) any resignation of the Master Servicer, Special Servicer or the
Trustee pursuant to this Agreement;
(v) the appointment of any successor to the Master Servicer, the Fiscal
Agent, the Trustee or the Special Servicer pursuant to Section 7.7 or 7.14
hereof;
(vi) waiver of a due-on-sale clause as provided in Section 8.7;
(vii) waiver of a prohibition on subordinate liens on the Mortgaged
Properties;
(viii) the making of a final payment pursuant to Section 10.3 hereof;
and
(ix) a Servicing Transfer Event.
(b) All notices to the Rating Agencies shall be in writing and sent by
first class mail, telecopy or overnight courier, as follows:
If to S&P, to:
Standard & Poor's Ratings Services
55 Water Street
New York, NY 10041
Attention: Commercial Mortgage Surveillance Manager
If to Fitch, to:
Fitch IBCA, Inc.
One State Street Plaza
New York, NY 10004
Attention: Commercial Mortgage Surveillance
If to any other Rating Agency, at such address as shall be provided in
writing to the Depositor by such Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii), the successor
trustee shall give prompt notice to the Rating Agencies of the occurrence of any
of the following events:
(i) the resignation or removal of the Trustee pursuant to Section 7.6;
or
(ii) the appointment of a successor trustee pursuant to Section 7.7; or
(iii) the appointment of a successor Operating Adviser pursuant to
Section 9.37.
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<PAGE>
(d) The Master Servicer shall deliver to the Rating Agencies, the
Depositor, the Primary Servicers and the Special Servicer reports prepared
pursuant to this Agreement (including the reports described in Sections 8.12,
8.13 and 8.14 and the Special Servicer Reports in its possession prepared
pursuant to Section 9.32) and any other information as reasonably requested by
the Rating Agencies and the Depositor. The Trustee and the Special Servicer
shall deliver to the Rating Agencies and the Depositor any information as
reasonably requested by the Rating Agencies and Depositor, as the case may be.
(e) Any notice or other document required to be delivered or mailed by
the Depositor, Master Servicer or Trustee shall be given by such parties,
respectively, on a best efforts basis and only as a matter of courtesy and
accommodation to the Rating Agencies, unless otherwise specifically required
herein, and such parties, respectively, shall have no liability for failure to
deliver any such notice or document to the Rating Agencies.
SECTION 13.11 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
SECTION 13.12 INTENTION OF PARTIES. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans and related rights and
property to the Trustee, for the benefit of the Certificateholders, by the
Depositor as provided in Section 2.1 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans or any related property is held to be
the property of the Depositor, or if for any other reason this Agreement is held
or deemed to create a security interest in the Mortgage Loans or any related
property, then this Agreement shall be deemed to be a security agreement; and
the conveyance provided for in Section 2.1 shall be deemed to be a grant by the
Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the Depositor's right, title, and interest, whether
now owned or hereafter acquired, in and to:
(i) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit and investment property consisting of, arising from or
relating to any of the property described in clauses (1)-(4) below: (1) the
Mortgage Loans, including the related Mortgage Notes, Mortgages, security
agreements, and title, hazard and other insurance policies identified on the
Mortgage Loan Schedule, including all Qualified Substitute Mortgage Loans, all
distributions with respect thereto payable on and after the Cut-Off Date, and
the Mortgage Files; (2) the Distribution Account, all REO Accounts, and the
Certificate Account, including all property therein and all income from the
investment of funds therein (including any accrued discount realized on
liquidation of any investment purchased at a discount); (3) the REMIC I Regular
Interests and the REMIC II Regular Interests; and (4) the Mortgage Loan Purchase
Agreements;
(ii) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit,
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<PAGE>
investment property, and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance proceeds payable
with respect to, or claims against other Persons with respect to, all or any
part of the collateral described in clause (A) above (including any accrued
discount realized on liquidation of any investment purchased at a discount); and
All cash and non-cash proceeds of the collateral described in clauses
(i) and (ii) above.
The possession by the Trustee of the Mortgage Notes, the Mortgages and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-115 and 9-305 thereof) as in force in
the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or persons holding for, the
Trustee, as applicable, for the purpose of perfecting such security interest
under applicable law.
The Depositor and, at the Depositor's direction, the Master Servicer
and the Trustee, shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. The Master Servicer shall file, at the expense of the Trust as
an Additional Trust Expense, all filings necessary to maintain the effectiveness
of any original filings necessary under the Uniform Commercial Code as in effect
in any jurisdiction to perfect the Trustee's security interest in such property,
including without limitation (i) continuation statements, and (ii) such other
statements as may be occasioned by any transfer of any interest of the Master
Servicer or the Depositor in such property. In connection herewith, the Trustee
shall have all of the rights and remedies of a secured party and creditor under
the Uniform Commercial Code as in force in the relevant jurisdiction.
SECTION 13.13 RECORDATION OF AGREEMENT. This Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere. Such recordation, if any, shall be
effected by the Master Servicer at the expense of the Trust as an Additional
Trust Expense, but only upon direction of the Depositor accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders of the Trust.
SECTION 13.14 RATING AGENCY MONITORING FEES. The parties hereto
acknowledge that on the Closing Date the Sellers are paying the monitoring fees
of the Rating Agencies relating to the rating of the Certificates.
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<PAGE>
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar, the Authenticating Agent and
the Fiscal Agent have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
MORGAN STANLEY CAPITAL I INC.,
as Depositor
By:
----------------------------------
Name:
Title:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By:
----------------------------------
Name:
Title:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Special Servicer
By:
----------------------------------
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Name:
Title:
ABN AMRO BANK N.V., as Fiscal Agent
By:
----------------------------------
Name:
Title:
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<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___th day of _____________, 1999, before me, a notary public in
and for said State, personally appeared _____________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of Morgan Stanley
Capital I Inc., and acknowledged to me that such corporation executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------
Notary Public
-203-
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On this ___th day of _____________, 1999, before me, a notary public in
and for said State, personally appeared ____________--, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President of ___________________, and
acknowledged to me that such corporation executed the within instrument pursuant
to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------
Notary Public
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<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the ______ day of August, 1999, before me, a notary public in and
for said State, personally appeared ___________________ known to me to be a of
_______________, one of the entities that executed the within instrument, and
acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
----------------------------------
Notary Public
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<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of August, 1999, before me, a notary public in and for
said State, personally appeared __________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of ____________, and
acknowledged to me that such nationally chartered bank executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------
Notary Public
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<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of August, 1999, before me, a notary public in and for
said State, personally appeared __________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of _______________,
and acknowledged to me that such nationally chartered bank executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------
Notary Public
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<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of August, 1999, before me, a notary public in and for
said State, personally appeared __________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of ________________
and acknowledged to me that such nationally chartered bank executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------
Notary Public
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<PAGE>
- --------------------------------------------------------------------------------
MORGAN STANLEY CAPITAL I INC.,
AS DEPOSITOR,
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS MASTER SERVICER,
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS SPECIAL SERVICER,
AND
LASALLE NATIONAL BANK, AS TRUSTEE
AND
ABN AMRO BANK N.V.,
AS FISCAL AGENT
-------------------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF AUGUST 1, 1999
-------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
1999-LIFE1
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-LIFE1
<TABLE>
<CAPTION>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.97% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF AUGUST1, 1999 SPECIAL SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
CUT-OFF DATE: AUGUST1, 1999 (OR FOR
CERTAIN LOANS, AUGUST 5, 1999) PRIMARY SERVICERS: PRINCIPAL CAPITAL
MANAGEMENT, LLC AND JOHN HANCOCK
CLOSING DATE: AUGUST10, 1999 REAL ESTATE FINANCE INC.
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS A-1 CERTIFICATES AS OF THE CLOSING
DATE: $74,751,000
CERTIFICATE BALANCE OF THIS CLASS A-1 [CUSIP NO. 61745MNQ2]
CERTIFICATE AS OF THE CLOSING DATE: [CINS NO. ________________
$74,751,000 NO. 1
</TABLE>
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class A-1 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
A-1-2
<PAGE>
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class A-1 Certificates. The Certificates are
designated as the Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE1 and are issued in 20 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
A-1-3
<PAGE>
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
A-1-4
<PAGE>
charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer, the Certificate Registrar nor any such agents
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-1-5
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
-------------------------------
AUTHORIZED SIGNATORY
A-1-6
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..........................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ----------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- ------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-1-7
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-1-8
<PAGE>
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-1-9
<PAGE>
EXHIBIT A-2
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-LIFE1
INITIAL PASS-THROUGH
RATE: 7.11% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT:
AS OF AUGUST 1, 1999 SPECIAL SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
CUT-OFF DATE: AUGUST 1, 1999
(OR FOR CERTAIN LOANS,
AUGUST 5, 1999) PRIMARY SERVICERS: PRINCIPAL CAPITAL
MANAGEMENT, LLC AND JOHN HANCOCK
REAL ESTATE FINANCE INC.
CLOSING DATE: AUGUST 10, 1999
FIRST DISTRIBUTION DATE:
SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
AGGREGATE CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATES FISCAL AGENT: ABN AMRO BANK N.V.
AS OF THE CLOSING DATE: $399,000,000
CERTIFICATE BALANCE OF THIS
CLASS A-2 CERTIFICATE AS OF THE [CUSIP NO. 61745MNR0]
CLOSING DATE: $399,000,000 [CINS NO. ________________
NO. 1
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class A-2 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
A-2-2
3
<PAGE>
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class A-2 Certificates. The Certificates are
designated as the Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE1 and are issued in 20 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-2-3
<PAGE>
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
A-2-4
<PAGE>
charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, Trustee, the Fiscal Agent,
the Master Servicer, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PR INCIPLES APPLIED IN NEW YORK.
A-2-5
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-----------------------------------------
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
-----------------------------------------
AUTHORIZED SIGNATORY
A-2-6
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.......Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ------------------- IDENTIFYING NUMBER OF ASSIGNEE
- -------------------
- -------------------
------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- ------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:
------------------------ ---------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
- ------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
A-2-7
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of ___________________________
__________ account number ______________ if mailed by check, to _______________
_______________________. Statements should be mailed to ____________________.
This information is provided by assignee named above, or _____________________,
as its agent.
A-2-8
<PAGE>
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-2-9
<PAGE>
EXHIBIT A-3
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
A-3-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<CAPTION>
<S> <C>
INITIAL PASS-THROUGH RATE: 7.45% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999
SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
CUT-OFF DATE: AUGUST1, 1999 (OR FOR CERTAIN LOANS AUGUST 5, ASSOCIATION
1999)
PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT, LLC
CLOSING DATE: AUGUST10, 1999 AND JOHN HANCOCK REAL ESTATE FINANCE INC.
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS B CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $20,792,000
[CUSIP NO. 61745MNS8]
CERTIFICATE BALANCE OF THIS CLASS B CERTIFICATE AS OF THE [CINS NO. ___________]
CLOSING DATE: $20,792,000
NO. 1
</TABLE>
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class B Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Master Servicer and the Special Servicer, a summary of certain of
the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be
held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face thereof (herein
called the "Certificates") and
A-3-3
<PAGE>
representing an interest in the Class of Certificates specified on the face
hereof equal to the quotient expressed as a percentage obtained by dividing the
Certificate Balance of this Certificate specified on the face hereof by the
aggregate initial Certificate Balance of the Class B Certificates. The
Certificates are designated as the Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-LIFE1 and are issued in 20
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-3-4
<PAGE>
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
A-3-5
<PAGE>
charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-3-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: _____________________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
A-3-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above
list. FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- ---------------------------------------- --------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ---------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
-------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
A-3-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of
______________________________________________________ account number
______________ or, if mailed by check, to
_______-________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-3-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-3-10
<PAGE>
EXHIBIT A-4
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
A-4-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<CAPTION>
<S> <C>
INITIAL PASS-THROUGH RATE: 7.45% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999
SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
CUT-OFF DATE: AUGUST1, 1999 (OR FOR CERTAIN LOANS AUGUST 5, ASSOCIATION
1999)
PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT, LLC
CLOSING DATE: AUGUST10, 1999 AND JOHN HANCOCK REAL ESTATE FINANCE INC.
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS C CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $23,762,000
[CUSIP NO. 61745MNT6]
CERTIFICATE BALANCE OF THIS CLASS C CERTIFICATE AS OF THE [CINS NO. ___________]
CLOSING DATE: $23,762,000
NO. 1
</TABLE>
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class C Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Master Servicer and the Special Servicer, a summary of certain of
the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be
held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and
A-4-3
<PAGE>
representing an interest in the Class of Certificates specified on the face
hereof equal to the quotient expressed as a percentage obtained by dividing the
Certificate Balance of this Certificate specified on the face hereof by the
aggregate initial Certificate Balance of the Class C Certificates. The
Certificates are designated as the Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-LIFE1 and are issued in 20
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-4-4
<PAGE>
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
A-4-5
<PAGE>
charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-4-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: _________________________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: __________________________________________
AUTHORIZED SIGNATORY
A-4-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above
list. FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- ---------------------------------------- --------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------
- ---------------------------
--------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ ____________________________________________________________
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of this Certificate in every
particular without alteration or enlargement or any change
whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
</TABLE>
A-4-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of
______________________________________________________ account number
______________ or, if mailed by check, to
_______-________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-4-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-5
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
A5-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<CAPTION>
<S> <C> <C>
INITIAL PASS-THROUGH RATE: 7.45% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999
SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
CUT-OFF DATE: AUGUST1, 1999 (OR FOR CERTAIN LOANS AUGUST 5, ASSOCIATION
1999)
PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT, LLC
CLOSING DATE: AUGUST10, 1999 AND JOHN HANCOCK REAL ESTATE FINANCE INC.
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS D CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $8,910,000
[CUSIP NO. 61745MNU3]
CERTIFICATE BALANCE OF THIS CLASS D CERTIFICATE AS OF THE [CINS NO. ___________]
CLOSING DATE: $8,910,000
NO. 1
</TABLE>
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class D Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Master Servicer and the Special Servicer, a summary of certain of
the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be
held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and
A-5-3
<PAGE>
representing an interest in the Class of Certificates specified on the face
hereof equal to the quotient expressed as a percentage obtained by dividing the
Certificate Balance of this Certificate specified on the face hereof by the
aggregate initial Certificate Balance of the Class D Certificates. The
Certificates are designated as the Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-LIFE1 and are issued in 20
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-5-4
<PAGE>
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
A-5-5
<PAGE>
charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-5-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ____________________________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________________
AUTHORIZED SIGNATORY
A-5-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above
list. FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- ---------------------------------------- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ----------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
- ----------------------------------------
-------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:____________________ ___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
</TABLE>
A-5-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of
______________________________________________________ account number
______________ or, if mailed by check, to
_______-________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-5-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-5-10
<PAGE>
EXHIBIT A-6
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
A-6-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<CAPTION>
<S> <C>
INITIAL PASS-THROUGH RATE: 7.45% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999
SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
CUT-OFF DATE: AUGUST1, 1999 (OR FOR CERTAIN LOANS AUGUST 5, ASSOCIATION
1999)
PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT, LLC
CLOSING DATE: AUGUST10, 1999 AND JOHN HANCOCK REAL ESTATE FINANCE INC.
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS E CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $13,366,000
[CUSIP NO. 61745MNV1]
CERTIFICATE BALANCE OF THIS CLASS E CERTIFICATE AS OF THE [CINS NO. ___________]
CLOSING DATE: $13,366,000
NO. 1
</TABLE>
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class E Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Master Servicer and the Special Servicer, a summary of certain of
the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be
held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and
A-6-3
<PAGE>
representing an interest in the Class of Certificates specified on the face
hereof equal to the quotient expressed as a percentage obtained by dividing the
Certificate Balance of this Certificate specified on the face hereof by the
aggregate initial Certificate Balance of the Class E Certificates. The
Certificates are designated as the Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-LIFE1 and are issued in 20
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-6-4
<PAGE>
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
A-6-5
<PAGE>
charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-6-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ________________________________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________________
AUTHORIZED SIGNATORY
A-6-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- ---------------------------------------- --------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- -----------------------------
IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------------
- -----------------------------
--------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:___________________________ _________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed
by a commercial bank or trust company or by
a member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed signatures
are not acceptable.
A-6-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of
______________________________________________________ account number
______________ or, if mailed by check, to
_______-________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-6-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-6-10
<PAGE>
EXHIBIT A-7
[FORM OF CLASS F CERTIFICATE]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER,
THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS F CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE
<PAGE>
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS AUGUST 10, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$______ OF OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY
IS _______% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR
RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) AUGUST 10, 1999, THIS CERTIFICATE MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
A-7-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<CAPTION>
<S> <C>
INITIAL PASS-THROUGH RATE: 7.45% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST1, 1999
SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
CUT-OFF DATE: AUGUST1, 1999 (OR FOR CERTAIN LOANS, AUGUST 5, ASSOCIATION
1999)
PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT,
CLOSING DATE: AUGUST 10, 1999 LLC AND JOHN HANCOCK REAL ESTATE FINANCE INC.
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS F CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $7,426,000
[CUSIP NO. 61745MNX7]
CERTIFICATE BALANCE OF THIS CLASS F CERTIFICATE AS OF THE [CINS NO. ________]
CLOSING DATE: $7,426,000 NO. 1
</TABLE>
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class F Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be
held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
A-7-3
<PAGE>
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class F Certificates. The Certificates are
designated as the Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE1 and are issued in 20 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-7-4
<PAGE>
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
A-7-5
<PAGE>
charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, Trustee, the Fiscal Agent,
the Master Servicer, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-7-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: _______________________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _________________________________________
AUTHORIZED SIGNATORY
A-7-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above
list. FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- ---------------------------------------- --------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ---------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
---------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
A-7-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-7-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-7-10
<PAGE>
EXHIBIT A-8
[FORM OF CLASS G CERTIFICATE]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER,
THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS G CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE
<PAGE>
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS AUGUST 10, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$______ OF OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY
IS _______% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR
RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) AUGUST 10, 1999, THIS CERTIFICATE MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
A-8-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<CAPTION>
<S> <C>
INITIAL PASS-THROUGH RATE: 7.45% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST1, 1999
SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
CUT-OFF DATE: AUGUST1, 1999 (OR FOR CERTAIN LOANS, AUGUST 5, ASSOCIATION
1999)
PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT,
CLOSING DATE: AUGUST 10, 1999 LLC AND JOHN HANCOCK REAL ESTATE FINANCE INC.
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS G CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $1,485,000
[CUSIP NO. 61745MNY5]
CERTIFICATE BALANCE OF THIS CLASS G CERTIFICATE AS OF THE [CINS NO. ________]
CLOSING DATE: $1,485,000 NO. 1
</TABLE>
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class G Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be
held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
A-8-3
<PAGE>
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class G Certificates. The Certificates are
designated as the Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE1 and are issued in 20 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-8-4
<PAGE>
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
A-8-5
<PAGE>
charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, Trustee, the Fiscal Agent,
the Master Servicer, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-8-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ______________________________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________________
AUTHORIZED SIGNATORY
A-8-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
- ----------------------------------------
----------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:______________________ _______________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any change
whatever.
- -----------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
A-8-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-8-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-8-10
<PAGE>
EXHIBIT A-9
[FORM OF CLASS H CERTIFICATE]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE
<PAGE>
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS AUGUST 10, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _______% PER
ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) AUGUST 10, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
A-9-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.72% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999 SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: AUGUST 1, 1999 (OR FOR CERTAIN LOANS, AUGUST 5, PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT,
1999) LLC AND JOHN HANCOCK REAL ESTATE FINANCE INC.
CLOSING DATE: AUGUST 10, 1999
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS H CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $10,396,000
CERTIFICATE BALANCE OF THIS CLASS H CERTIFICATE AS OF THE [CUSIP NO. 61745MNZ2]
CLOSING DATE: $10,396,000 [CINS NO. ________]
NO. 1
</TABLE>
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class H Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and
A-9-3
<PAGE>
representing an interest in the Class of Certificates specified on the face
hereof equal to the quotient expressed as a percentage obtained by dividing the
Certificate Balance of this Certificate specified on the face hereof by the
aggregate initial Certificate Balance of the Class H Certificates. The
Certificates are designated as the Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-LIFE1 and are issued in 20
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-9-4
<PAGE>
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
A-9-5
<PAGE>
charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, Trustee, the Fiscal Agent,
the Master Servicer, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-9-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: _______________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________
AUTHORIZED SIGNATORY
A-9-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
OR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- ---------------------------------------- --------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ---------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------
- ---------------------
----------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written upon
the face of this Certificate in every
particular without alteration or enlargement
or any change whatever
- -----------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by amember firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-9-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-9-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-9-10
<PAGE>
EXHIBIT A-10
[FORM OF CLASS J CERTIFICATE]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE
<PAGE>
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS AUGUST 10, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _______% PER
ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) AUGUST 10, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
A-10-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.72% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999 SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: AUGUST 1, 1999 (OR FOR CERTAIN LOANS, AUGUST 5, PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT,
1999) LLC AND JOHN HANCOCK REAL ESTATE FINANCE INC.
CLOSING DATE: AUGUST 10, 1999
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS J CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $7,426,000
CERTIFICATE BALANCE OF THIS CLASS J CERTIFICATE AS OF THE [CUSIP NO. 61745 MNZ2]
CLOSING DATE: $7,426,000 [CINS NO._________]
NO. 1
</TABLE>
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class J Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be
held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
A-10-3
<PAGE>
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class J Certificates. The Certificates are
designated as the Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE1 and are issued in 20 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-10-4
<PAGE>
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
A-10-5
<PAGE>
charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, Trustee, the Fiscal Agent,
the Master Servicer, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-10-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: _______________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________
AUTHORIZED SIGNATORY
A-10-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- ---------------------------------------- --------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ----------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------
- ----------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-10-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-10-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-10-10
<PAGE>
EXHIBIT A-11
[FORM OF CLASS K CERTIFICATE]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER,
THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE
<PAGE>
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS AUGUST 10, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _______% PER
ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) AUGUST 10, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
A-11-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.72% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999 SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: AUGUST 1, 1999 (OR FOR CERTAIN LOANS, AUGUST 5, PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT,
1999) LLC AND JOHN HANCOCK REAL ESTATE FINANCE INC.
CLOSING DATE: AUGUST 10, 1999
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS F CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $4,455,000
CERTIFICATE BALANCE OF THIS CLASS K CERTIFICATE AS OF THE [CUSIP NO. 61745MPB3]
CLOSING DATE: $4,455,000 [CINS NO. _______]
NO. 1
</TABLE>
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class K Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be
held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
A-11-3
<PAGE>
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class K Certificates. The Certificates are
designated as the Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE1 and are issued in 20 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-11-4
<PAGE>
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
A-11-5
<PAGE>
charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, Trustee, the Fiscal Agent,
the Master Servicer, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-11-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ______________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________
AUTHORIZED SIGNATORY
A-11-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- ---------------------------------------- --------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ----------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------
- ----------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of
the New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-11-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-11-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-11-10
<PAGE>
EXHIBIT A-12
[FORM OF CLASS L CERTIFICATE]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER,
THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS L CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE
<PAGE>
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS AUGUST 10, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$______ OF OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY
IS _______% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR
RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) AUGUST 10, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
A-12-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.72% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999 SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: AUGUS T1, 1999 (OR FOR CERTAIN LOANS, AUGUST 5, PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT,
1999) LLC AND JOHN HANCOCK REAL ESTATE FINANCE INC.
CLOSING DATE: AUGUST 10, 1999
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS L CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $5,940,000
CERTIFICATE BALANCE OF THIS CLASS L CERTIFICATE AS OF THE [CUSIP NO. 61745MPC1]
CLOSING DATE: $5,940,000 [CINS NO. ________]
NO. 1
</TABLE>
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class L Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be
held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
A-12-3
<PAGE>
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class L Certificates. The Certificates are
designated as the Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE1 and are issued in 20 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-12-4
<PAGE>
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
A-12-5
<PAGE>
charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, Trustee, the Fiscal Agent,
the Master Servicer, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-12-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ______________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________
AUTHORIZED SIGNATORY
A-12-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ----------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------
- ----------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of this Certificate in every
particular without alteration or enlargement or any change
whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of
the New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
</TABLE>
A-12-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-12-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-12-10
<PAGE>
EXHIBIT A-13
[FORM OF CLASS M CERTIFICATE]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER,
THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE
<PAGE>
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS AUGUST 10, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$______ OF OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY
IS _______% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR
RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) AUGUST 10, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
A-13-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.72% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999 SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: AUGUST 1, 1999 (OR FOR CERTAIN LOANS, AUGUST 5, PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT,
1999) LLC AND JOHN HANCOCK REAL ESTATE FINANCE INC.
CLOSING DATE: AUGUST 10, 1999
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS M CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $4,455,000
CERTIFICATE BALANCE OF THIS CLASS M CERTIFICATE AS OF THE [CUSIP NO. 61745MPD9]
CLOSING DATE: $4,455,000 [CINS NO. ________]
NO. 1
</TABLE>
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class M Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be
held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of
the Class M
A-13-3
<PAGE>
Certificates. The Certificates are designated as the Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-LIFE1 and are
issued in 20 Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
A-13-4
<PAGE>
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-13-5
<PAGE>
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, Trustee, the Fiscal Agent,
the Master Servicer, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-13-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ______________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________
AUTHORIZED SIGNATORY
A-13-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- -----------------------
IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------
- -----------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-13-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-13-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-13-10
<PAGE>
EXHIBIT A-14
[FORM OF CLASS N CERTIFICATE]
THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER,
THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS N CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE
<PAGE>
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS AUGUST 10, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _______% PER
ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) AUGUST 10, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
A-14-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.72% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999 SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: AUGUST 1, 1999 (OR FOR CERTAIN LOANS, AUGUST 5,
1999)
CLOSING DATE: AUGUST 10, 1999 PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT,
LLC AND JOHN HANCOCK REAL ESTATE FINANCE INC.
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS N CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $5,346,000
CERTIFICATE BALANCE OF THIS CLASS N CERTIFICATE AS OF THE [CUSIP NO. 61745MPE7]
CLOSING DATE: $5,346,000 [CINS NO. ________]
NO. 1
</TABLE>
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class N Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be
held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of
the Class N
A-14-3
<PAGE>
Certificates. The Certificates are designated as the Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-LIFE1 and are
issued in 20 Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
A-14-4
<PAGE>
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-14-5
<PAGE>
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, Trustee, the Fiscal Agent,
the Master Servicer, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-14-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ______________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________
AUTHORIZED SIGNATORY
A-14-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- -----------------------
IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------
- -----------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of
the New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-14-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-14-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-14-10
<PAGE>
EXHIBIT A-15
[FORM OF CLASS O CERTIFICATE]
THIS CLASS O CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER,
THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS O CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE
<PAGE>
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS AUGUST 10, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$______ OF OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY
IS _______% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR
RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) AUGUST 10, 1999, THIS CERTIFICATE MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
A-15-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.72% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999 SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: AUGUST 1, 1999 (OR FOR CERTAIN LOANS, AUGUST 5, PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT,
1999) LLC AND JOHN HANCOCK REAL ESTATE FINANCE INC.
CLOSING DATE: AUGUST 10, 1999
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS O CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $2,079,000
[CUSIP NO. 61745MPF4]
CERTIFICATE BALANCE OF THIS CLASS O CERTIFICATE AS OF THE [CINS NO. ________]
CLOSING DATE: $2,079,000 NO. 1
</TABLE>
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class O Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of
the Class O
A-15-3
<PAGE>
Certificates. The Certificates are designated as the Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-LIFE1 and are
issued in 20 Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
A-15-4
<PAGE>
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-15-5
<PAGE>
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede& Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, Trustee, the Fiscal Agent,
the Master Servicer, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created
hereby (other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-15-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ______________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________
AUTHORIZED SIGNATORY
A-15-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- -----------------------
IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------
- -----------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-15-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-15-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-15-10
<PAGE>
EXHIBIT A-16
[FORM OF CLASS P CERTIFICATE]
THIS CLASS P CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER,
THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO
THIS CLASS P CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE
<PAGE>
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS AUGUST 10, 1999. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$______ OF OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY
IS _______% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR
RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) AUGUST 10, 1999, THIS CERTIFICATE MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
A-16-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<S> <C>
INITIAL PASS-THROUGH RATE: 6.72% MASTER SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999 SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: AUGUST 1, 1999 (OR FOR CERTAIN LOANS, AUGUST 5, PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT,
1999) LLC AND JOHN HANCOCK REAL ESTATE FINANCE INC.
CLOSING DATE: AUGUST 10, 1999
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS P CERTIFICATES AS FISCAL AGENT: ABN AMRO BANK N.V.
OF THE CLOSING DATE: $4,457,043
CERTIFICATE BALANCE OF THIS CLASS P CERTIFICATE AS OF THE [CUSIP NO. 61745MPG2]
CLOSING DATE: $4,457,043 [CINS NO. ________]
NO. 1
</TABLE>
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class P Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of
the Class P
A-16-3
<PAGE>
Certificates. The Certificates are designated as the Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-LIFE1 and are
issued in 20 Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
A-16-4
<PAGE>
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
A-16-5
<PAGE>
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede& Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, Trustee, the Fiscal Agent,
the Master Servicer, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-16-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ______________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________
AUTHORIZED SIGNATORY
A-16-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ----------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------
- ----------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of
the New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-16-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-16-9
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-16-10
<PAGE>
EXHIBIT A-17
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER,
THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH
<PAGE>
TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING
AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH
TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION
THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN
AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT
TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT
SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN
CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION
IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN
SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT OF THE UNITED
STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN, OR
UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, OR
AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES WITHOUT THE UNITED STATES IS
INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX PURPOSES
REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN THE
UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED
STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED
STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-I CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES
PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND
SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE
OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
A-17-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<S> <C>
PERCENTAGE INTEREST OF THIS CLASS R-I CERTIFICATE: 100% SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999 PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT, LLC
AND JOHN HANCOCK REAL ESTATE FINANCE INC.
CUT-OFF DATE: AUGUST 1, 1999 (OR FOR CERTAIN LOANS, AUGUST TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
5, 1999)
CLOSING DATE: AUGUST 10, 1999
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION CUSIP NO. __________
NO. ___
</TABLE>
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class R-I Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Master Servicer and the Special Servicer, a summary of certain of
the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be
held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the
Class R-I Certificates specified on the face hereof. The Certificates are
designated as the Morgan Stanley Capital I Inc. Commercial Mortgage Pass-
A-17-3
<PAGE>
Through Certificates, Series 1999-LIFE1 and are issued in 20 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
A-17-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of
10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the
A-17-5
<PAGE>
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-17-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ______________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________
AUTHORIZED SIGNATORY
A-17-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ----------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------
- ------------------ ---
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- ----------------------------------------------------------- -------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of
the New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-17-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-17-9
<PAGE>
EXHIBIT A-18
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER,
THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER
<PAGE>
AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE
AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL
RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE
UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS
A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR
FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH
GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE
TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME),
(C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE
CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS
NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP
OR OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED
STATES OR ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME
FROM SOURCES WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE
CONDUCT OF TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING
HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF
SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER
OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-18-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
<TABLE>
<S> <C>
PERCENTAGE INTEREST OF THIS CLASS R-II CERTIFICATE: 100% SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 1999 PRIMARY SERVICERS: PRINCIPAL CAPITAL MANAGEMENT, LLC
AND JOHN HANCOCK REAL ESTATE FINANCE INC.
CUT-OFF DATE: AUGUST 1, 1999 (OR FOR CERTAIN LOANS, AUGUST TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
5, 1999)
CLOSING DATE: AUGUST 10, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION CUSIP NO. __________
NO. ___
</TABLE>
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of
a pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class R-II Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Morgan Stanley
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the
Class R-II Certificates specified on the face hereof. The Certificates are
designated as the Morgan Stanley Capital I Inc. Commercial Mortgage
Pass-
A-18-3
<PAGE>
Through Certificates, Series 1999-LIFE1 and are issued in 20 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
A-18-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate.
The Pooling and Servicing Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee
or transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of
10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the
A-18-5
<PAGE>
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-18-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ______________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________
AUTHORIZED SIGNATORY
A-18-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ----------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------
- ----------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- -------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
- -------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of
the New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-18-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-18-9
<PAGE>
EXHIBIT A-19
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
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 SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
CERTIFICATE REGISTRAR TO
<PAGE>
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING
(OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES
ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS
IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN
CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION
IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN
SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"),
(D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A
CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE
LAWS OF, THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR
TRUST WHOSE INCOME FROM SOURCES WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS
INCOME FOR UNITED STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS
CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH
PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN
AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO
PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER
OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-19-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
PERCENTAGE INTEREST OF THIS CLASS R-III SPECIAL SERVICER: WELLS FARGO BANK,
CERTIFICATE: 100% NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: PRIMARY SERVICERS; PRINCIPAL CAPITAL
AS OF AUGUST 1, 1999 MANAGEMENT, LLC AND JOHN HANCOCK
REAL ESTATE FINANCE INC.
CUT-OFF DATE: AUGUST 1, 1999 (OR FOR
CERTAIN LOANS, AUGUST 5, 1999) TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: AUGUST 10, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: SEPTEMBER 15,
1999
CUSIP NO. __________
MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION NO. ___
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class R-III Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Morgan Stanley
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-III Certificates specified on the face hereof. The Certificates are designated
as the Morgan Stanley Capital I Inc. Commercial Mortgage Pass-
A-19-3
<PAGE>
Through Certificates, Series 1999-LIFE1 and are issued in 20 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only certain
amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-19-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered, certificated
form in minimum percentage interests of 10% and in multiples of 10% in excess
thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the
A-19-5
<PAGE>
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement or (iii) the
termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement; provided that in no event shall the Trust continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase the
Mortgage Loans and any other property remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the Pooling
and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-19-6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ______________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________
AUTHORIZED SIGNATORY
A-19-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...................Custodian
TEN ENT - as tenants by the (Cust.)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common. State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
____________________________| PLEASE INSERT SOCIAL SECURITY OR OTHER
____________________________| IDENTIFYING NUMBER OF ASSIGNEE
____________________________|___________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a mewmber firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-19-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
A-19-9
<PAGE>
EXHIBIT A-20
[FORM OF CLASS X CERTIFICATE]
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN 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 WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF
THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED
A-20-1
<PAGE>
SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS
CERTIFICATE IS AUGUST 10, 1999. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN
ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING THE OID
RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT ASSUMPTION"),
THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_____ OF OID PER $100,000 OF
INITIAL NOTIONAL AMOUNT, THE YIELD TO MATURITY IS _____% PER ANNUM AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____
PER $100,000 OF INITIAL NOTIONAL AMOUNT, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NO PREPAY OR THAT, IF THEY
DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) AUGUST 10, 1999, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
A-20-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1
INITIAL PASS-THROUGH RATE: 0.34% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
INITIAL NOTIONAL AMOUNT OF THIS CLASS X
CERTIFICATE: $594,046,043 SPECIAL SERVICER: WELL FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF AUGUST 1, 1999 PRIMARY SERVICERS: PRINCIPAL CAPITAL
MANAGEMENT, LLC AND JOHN HANCOCK
CUT-OFF DATE; AUGUST 1, 1999 (OR FOR REAL ESTATE FINANCE INC.
CERTAIN LOANS, AUGUST 5, 1999)
TRUSTEE: LASALLE BANK NATIONAL
CLOSING DATE: AUGUST 10, 1999 ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE NOTIONAL AMOUNT OF THE CLASS
X CERTIFICATES AS OF THE CLOSING DATE: [CUSIP NO. 61745MNW9]
$594,046,043 [CINS NO. __________]
NO. ___
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class X Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor," which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
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quotient expressed as a percentage obtained by dividing the Notional Amount
of this Certificate specified on the face hereof by the initial aggregate
Notional Amount of the Class X Certificates. The Certificates are designated as
the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1 and are issued in 20 Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
Distributions of interest on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 15th day of each month or,
if such 15th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
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The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Paying
Agent by wire transfer in immediately available funds to an account specified in
the request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring instructions
no more than five business days after the related Record Date or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in denominations of $100,000 initial Notional Amount
and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service
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charge will be made for any such registration of transfer or exchange but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement or (iii) the
termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement; provided that in no event shall the Trust continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase the
Mortgage Loans and any other property remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the Pooling
and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: __________________________________
AUTHORIZED OFFICER
Dated: August 10, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: __________________________________
AUTHORIZED SIGNATORY
A-20-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
_________________________| IDENTIFYING NUMBER OF ASSIGNEE
_________________________|
_________________________|_____________________________________________________
_______________________________________________________________________________
Please print or typewrite name and address of assignee
_______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
_______________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
A-20-8
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of ____________________________
account number ______________ or, if mailed by check, to _____________________.
Statements should be mailed to ____________________. This information is
provided by assignee named above, or _______________________, as its agent.
A-20-9
<PAGE>
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
August __, 1999
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Wells Fargo Bank, National Association
555 Montgomery Street, 17th Floor
San Francisco, California 94111
Morgan Stanley Mortgage Capital Inc.
1585 Broadway
New York, New York 10036
Principal Commercial Funding, LLC
801 Grand Avenue
Des Moines, Iowa 50392
John Hancock Real Estate Finance, Inc.
John Hancock Place
200 Clarendon Street, T-52
Post Office Box 111
Boston, Massachusetts 02117
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE1
___________________________________________________________________
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan and (c) each Mortgage Note has
been endorsed as provided in clause (i) of the definition of "Mortgage File" of
the Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
such documents contained in each Mortgage File or any of the Mortgage
B-1-1
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Loans identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has granted
to the Trustee for the benefit of the Certificateholders a security interest in
all of the Depositor's right, title and interest in and to the Mortgage Loans,
the REMIC I Regular Interests, and the REMIC II Regular Interests.
Capitalized words and phrases used herein and not otherwise defined herein
shall have the respective meanings assigned to them in the Pooling and Servicing
Agreement. This Certificate is subject in all respects to the terms of said
Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: _______________________________________
Name:
Title:
B-1-2
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SCHEDULE OF EXCEPTIONS
B-1-3
<PAGE>
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
__________, 1999
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Wells Fargo Bank, National Association
555 Montgomery Street, 17th Floor
San Francisco, California 94111
Morgan Stanley Mortgage Capital Inc.
1585 Broadway
New York, New York 10036
Principal Commercial Funding, LLC
801 Grand Avenue
Des Moines, Iowa 50392
John Hancock Real Estate Finance, Inc.
John Hancock Place
200 Clarendon Street, T-52
Post Office Box 111
Boston, Massachusetts 02117
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE1
___________________________________________________________________
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
required to be included in the Mortgage File pursuant to clauses (i), (ii),
(iv), (v) and (viii) of the definition of "Mortgage File," and any documents
required to be included in the Mortgage File pursuant to all other clauses of
the definition of "Mortgage File," to the extent known by a Responsible Officer
of the Trustee to be required pursuant to the Pooling and Servicing Agreement,
are in its possession, (b) such documents have been reviewed by it and have not
been materially mutilated, damaged, defaced, torn or otherwise
B-2-1
<PAGE>
physically altered, and such documents relate to such Mortgage Loan, (c) based
on its examination and only as to the Mortgage Note and the Mortgage, the street
address of the Mortgaged Property and the name of the Mortgagor set forth in the
Mortgage Loan Schedule accurately reflects the information contained in the
documents in the Mortgage File, and (d) each Mortgage Note has been endorsed and
each Assignment of Mortgage has been delivered as provided in clause (i) and
clause (iv), respectively, of the definition of "Mortgage File" contained in the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File or any of the Trustee Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has granted
to the Trustee for the benefit of the Certificateholders a security interest in
all of the Depositor's right, title and interest in and to the Mortgage Loans,
the REMIC I Regular Interests, and the REMIC II Regular Interests.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: ___________________________________
Name:
Title:
B-2-2
<PAGE>
SCHEDULE OF EXCEPTIONS
B-2-3
<PAGE>
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle Bank National Association, as Trustee
Corporate Trust Office
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60674
Attn: Asset-Backed Securities Trust Services Group
Re: Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-LIFE1
_____________________________________________________
DATE:__________
In connection with the administration of the Mortgage Loans held by you as
Trustee under the Pooling and Servicing Agreement dated as of August 1, 1999 by
and among Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank,
National Association, as Master Servicer and as Special Servicer, LaSalle Bank
National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent (the
"Pooling and Servicing Agreement"), the undersigned hereby requests a release of
the Trustee Mortgage File held by you as Trustee with respect to the following
described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all amounts
received in connection with the Mortgage Loan have been or will be,
following the [Master] [Special] Servicer's release of the Trustee
Mortgage File, credited to the Certificate Account or the
Distribution Account pursuant to the Pooling and Servicing
Agreement.)
_____ 2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the Purchase
Price has been credited to the Distribution Account pursuant to the
Pooling and Servicing Agreement.)
C-1
<PAGE>
_____ 3. Mortgage Loan Defeased.
4. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a Qualifying
Substitute Mortgage Loan has been assigned and delivered to you
along with the related Trustee Mortgage File pursuant to the Pooling
and Servicing Agreement.)
_____ 5. The Mortgage Loan is being foreclosed.
_____ 6. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage File will be
held by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned to you, except if the Mortgage Loan has
been paid in full, repurchased or substituted for by a Qualifying Substitute
Mortgage Loan (in which case the Trustee Mortgage File will be retained by us
permanently), when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them in
the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By: ____________________________________
Name:
Title:
C-2
<PAGE>
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1, Class__ (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class___ Certificates [having an initial Certificate Balance or Notional Amount
as of August 10, 1999 (the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred Certificates"). The
Transferred Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of August 1, 1999,
among Morgan Stanley Capital I Inc., as depositor (the "Depositor"), Wells Fargo
Bank, National Association, as master servicer, Wells Fargo Bank, National
Association, as special servicer, LaSalle Bank National Association, as trustee
and ABN AMRO Bank N.V., as fiscal agent. 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 Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited
any offer to buy or accept a transfer, pledge or other disposition of
any Transferred Certificate, any interest in any Transferred Certificate
or any other similar security from any person in any manner,
(c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in any Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or
(e) taken any other action, which (in the case of any of the acts
described in clauses (a) through (e) hereof) would constitute a
distribution of any Transferred Certificate under the Securities Act of
1933, as amended (the "Securities Act"), or would render the
disposition of any
D-1-1
<PAGE>
Transferred Certificate a violation of Section 5 of the Securities Act or
any state securities laws, or would require registration or qualification
of any Transferred Certificate pursuant to the Securities Act or any state
securities laws.
Very truly yours,
____________________________________
(Transferor)
By: ________________________________
Name: ______________________________
Title: _____________________________
D-1-2
<PAGE>
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[DATE]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class______ Certificates [having an initial Certificate Principal Balance or
Notional Amount as of August __, 1999 (the "Closing Date") of [$__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of August 1,
1999 (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc., as depositor (the "Depositor"), Wells Fargo Bank, National Association, as
master servicer, Wells Fargo Bank, National Association, as special servicer,
LaSalle Bank National Association, as trustee and ABN AMRO Bank N.V., as fiscal
agent. 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 Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing
D-2A-1
<PAGE>
Agreement, (e) any credit enhancement mechanism associated with the
Transferred Certificates and (f) all related matters that it has requested.
Very truly yours,
_________________________________________
(Transferee)
By: _____________________________________
Name: ___________________________________
Title: __________________________________
D-2A-2
<PAGE>
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the commercial mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or any organization described
in Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a U.S.
bank, and not more than 18 months preceding such date of sale for a
foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date
D-2A-3
<PAGE>
not more than 16 months preceding the date of sale of the Certificate
in the case of a U.S. savings and loan association, and not more than
18 months preceding such date of sale for a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule144A 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
D-2A-4
<PAGE>
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 Certificate
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
_________________________________________
Print Name of Transferee
By:______________________________________
Name:____________________________________
Title:___________________________________
Date:____________________________________
D-2A-5
<PAGE>
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificate being transferred (the
"Transferred Certificates") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in
Rule144A under the Securities Act of 1933, as amended ("Rule144A") 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
Rule144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule144A).
____ 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
Rule144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
D-2A-6
<PAGE>
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule144A 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 Rule144A.
___ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule144A, 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 Rule144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
________________________________________
Print Name of Transferee or Adviser
By:_____________________________________
Name:
Title:
IF AN ADVISER:
________________________________________
Print Name of Transferee
Date:___________________________________
D-2A-7
<PAGE>
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of Class___ Certificates [having an initial Certificate
Principal Balance as of August 10, 1999 (the "Closing Date") of
$__________][evidencing a ____% Percentage Interest in the related Class] (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of August 1, 1999 (the "Pooling and Servicing Agreement"), among Morgan
Stanley Capital I Inc., as depositor (the "Depositor"), Wells Fargo Bank,
National Association, as master servicer, Wells Fargo Bank, National
Association, as special servicer, LaSalle Bank National Association, as trustee
and ABN AMRO Bank N.V., as fiscal agent. All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to which
the Transferred Certificates belong has not been and will not be registered
under the Securities Act or registered or qualified under any applicable state
securities laws, (b) none of the Depositor, the Trustee or the Certificate
Registrar is obligated so to register or qualify the Classof Certificates to
which the Transferred Certificates belong, and (c) no Transferred Certificate
may be resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant any applicable state
securities laws or (ii) sold or transferred in transactions which are exempt
from such registration and qualification and the Certificate Registrar has
received either: (A) a certificate from the Certificateholder desiring to effect
such transfer substantially in the form attached as Exhibit D-1 to the Pooling
and Servicing Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached either as Exhibit D-
D-2B-1
<PAGE>
2A or as Exhibit D-2B to the Pooling and Servicing Agreement; or (C) an opinion
of counsel satisfactory to the Certificate Registrar with respect to the
availability of such exemption from registration under the Securities Act,
together with copies of the written certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which such
opinion is based.
3. The Transferee understands that it may not sell or otherwise transfer
any Transferred Certificate except in compliance with the provisions of Section
3.3 of the Pooling and Servicing Agreement, which provisions it has carefully
reviewed.
4. Transferee understands that each Transferred Certificate will bear the
following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, 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, 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 IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Transferred Certificate,
any interest in any Transferred 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 Transferred Certificate, any interest in
any Transferred Certificate or any other similar security from any person in any
D-2B-2
<PAGE>
manner, (c) otherwise approached or negotiated with respect to any Transferred
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 with respect
to any Transferred Certificate, any interest in any Transferred 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 Transferred Certificate, any
interest in any Transferred Certificate or any other similar security.
6. 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.
7. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
________________________________________
(Transferee)
By:_____________________________________
Name:___________________________________
Title:__________________________________
D-2B-3
<PAGE>
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1, Class__ (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 August __, 1999 (the "Closing Date")
of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of August
1, 1999, among Morgan Stanley Capital I Inc., as depositor (the "Depositor"),
Wells Fargo Bank, National Association, as master servicer, Wells Fargo Bank,
National Association, as special servicer, LaSalle Bank National Association, as
trustee and ABN AMRO Bank N.V., as fiscal agent. 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, the Certificate Registrar 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 so to register or qualify
the Certificates and (c) no interest in the Certificates may be sold or
transferred unless it is (i) registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities laws or (ii)
sold or transferred in 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 with respect to the availability of such exemption, together with copies
of the certification(s) from the transferor
D-3A-1
<PAGE>
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 the Transferred Certificate will bear
legends substantially to the following effect:
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 THEREIN 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 SECTION 4975 OF 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 IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) solicited any offer to buy or accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate, any interest in any Certificate or any similar
security.
D-3A-2
<PAGE>
6. 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.
7. The Transferee is an institutional "accredited investor" as defined in
Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of an investment in the Certificates; the Transferee has
sought such accounting, legal and tax advice as it has considered necessary to
make an informed investment decision; and the Transferee is able to bear the
economic risks of such an investment and can afford a complete loss of such
investment.
Very truly yours,
________________________________________
(Transferee)
By:_____________________________________
Name:___________________________________
Title:__________________________________
D-3A-3
<PAGE>
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1, Class__ (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 August__, 1999 (the "Closing Date")
of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of August
1, 1999, among Morgan Stanley Capital I Inc., as depositor (the "Depositor"),
Wells Fargo Bank, National Association, as master servicer, Wells Fargo Bank,
National Association, as special servicer, LaSalle Bank National Association, as
trustee and ABN AMRO Bank N.V., as fiscal agent. 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, the Certificate Registrar 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 Classof 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 it is (i)
registered pursuant to the Securities Act and registered or qualified pursuant
to any applicable state securities laws or (ii)
D-3B-1
<PAGE>
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 with respect to the availability of such exemption, together with
copies of the certificate(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 the Transferred Certificate will bear
legends substantially to the following effect:
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 THEREIN 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 SECTION 4975 OF 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 IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
D-3B-2
<PAGE>
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
Very truly yours,
________________________________________
(Transferee)
By:_____________________________________
Name:___________________________________
Title:__________________________________
D-3B-3
<PAGE>
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor"), and [name of Certificate Registrar] as Certificate Registrar,
with respect to the commercial mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or any organization described
in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a U.S.
bank, and not more than 18 months preceding such date of sale for a
foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a State or Federal authority having supervision over any
such institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest
D-3B-4
<PAGE>
annual financial statements, a copy of which is attached hereto, as of
a date not more than 16 months preceding the date of sale of the
Certificate in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale for a foreign
savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule144A 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.
D-3B-5
<PAGE>
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 Certificate
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
D-3B-6
<PAGE>
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor"), and for the benefit of the Depositor, the Certificate Registrar
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
Rule144A under the Securities Act of 1933, as amended ("Rule144A"), 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
Rule144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in accordance
with Rule144A).
____ 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 Rule144A).
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
D-3B-7
<PAGE>
or investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority
owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule144A 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 Rule144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule144A, 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 Rule144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
_______________________________________
Print Name of Transferee or Adviser
By:____________________________________
Name:__________________________________
Title:_________________________________
IF AN ADVISER:
_______________________________________
Print Name of Transferee
Date:__________________________________
D-3B-8
<PAGE>
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Morgan Stanley Capital I Inc.,
Mortgage Pass-Through Certificates, Series 1999-LIFE1, Class [R-I] [R-II]
[R-III], evidencing a ____% Percentage Interest in such Class (the "Residual
Certificates")), a ________________ duly organized and validly existing under
the laws of ____________________, on behalf of which he/she makes this
affidavit. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement
pursuant to which the Residual Certificates were issued (the "Pooling and
Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "disqualified organization" or a possession of the United States. (For
this purpose, a "disqualified organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor or, if such transfer is through an agent (which
Person includes a broker, nominee or middleman) for a non-Permitted Transferee,
on the agent; (iii) that the Person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such Person an
affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury regulation Section 1.860E-1(c) and that
the transferor of a "noneconomic residual interest" will remain liable for any
taxes due
E-1-1
<PAGE>
with respect to the income on such residual interest, unless no significant
purpose of the transfer is to enable the transferor to impede the assessment or
collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through entity"
holding the Residual Certificates if at any time during the taxable year of the
pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not register
any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Certificate will only be owned, directly
or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _________________.
8. The Transferee has reviewed the provisions of Section 3.3(e) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (ii)(F) of Section 3.3(e)
which authorizes the Paying Agent or the Trustee to deliver payments on the
Residual Certificate to a Person other than the Transferee and clause (ii)(G) of
Section 3.3(e) which authorizes the Trustee to negotiate a mandatory sale of the
Residual Certificates, in either case, in the event that the Transferee holds
such Residual Certificates in violation of Section 3.3(e)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of the
Residual Certificates is or will be to impede the assessment or collection of
any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
11. The Transferee will, in connection with any transfer that it makes of
the Residual Certificates, deliver to the Certificate Registrar a representation
letter substantially in the form of Exhibit E-2 to the Pooling and Servicing
Agreement in which it will represent and warrant, among other things, that it is
not transferring the Residual Certificates to impede the assessment or
collection of any tax and that it has at the time of such transfer conducted a
reasonable investigation of the financial condition of the proposed transferee
as contemplated by
E-1-2
<PAGE>
Treasury regulation Section 1.860E-1(c)(4)(i) and has satisfied the requirements
of such provision.
12. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
E-1-3
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached this day
of ___________, ____.
[NAME OF TRANSFEREE]
By:______________________________
[Name of Officer]
[Title of Officer]
E-1-4
<PAGE>
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ____________________________ before me, _______________________________
Date Name and Title of Officer (i.e.,
Your Name, Notary Public)
personally appeared ___________________________________________________________
Name(s) of Document Signer(s)
_______________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
____________________________
Signature of Notary
(Affix seal in the above blank space)
E-1-5
<PAGE>
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 19__
LaSalle Bank National Association,
as Certificate Registrar
Corporate Trust Office
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60674
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[ClassR-I] [ClassR-II] [ClassR-III] Certificates evidencing a ____% Percentage
Interest in such Class(the "Residual Certificates"). The Certificates, including
the Residual Certificates, were issued pursuant to the Pooling and Servicing
Agreement, dated as of August 1, 1999 (the "Pooling and Servicing Agreement"),
among Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National
Association, as Master Servicer and as Special Servicer, LaSalle Bank National
Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual
Certificates by the Transferor to the Transferee is or will be to impede the
assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a
Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a reasonable
investigation of the financial condition of the Transferee as contemplated by
Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for
E-2-1
<PAGE>
United States income taxes associated therewith) unless the Transferor has
conducted such an investigation.
Very truly yours,
________________________________________
(Transferor)
By:_____________________________________
Name:___________________________________
Title:__________________________________
E-2-2
<PAGE>
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1, CLASS (THE "CERTIFICATES")
TO: Morgan Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
or
CEDEL, S.A.
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Certificates held by you or on your behalf for our
account are beneficially owned by (a) non -U.S person(s) or (b) U.S. person(s)
who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the Certificates
held by you or on your behalf for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to $__________ of such
beneficial interest in the above Certificates in respect of which we are not
able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
F-1
<PAGE>
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, 199__
By: ____________________________________
As, or as agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
F-2
<PAGE>
EXHIBIT G
FORM OF PRIMARY SERVICING AGREEMENT
G-1
<PAGE>
______________________________
PRIMARY SERVICING AGREEMENT
DATED AS OF AUGUST 1, 1999
______________________________
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Master Servicer,
PRINCIPAL CAPITAL MANAGEMENT, LLC
as Primary Servicer,
TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
Dated as of August 1, 1999
among
MORGAN STANLEY CAPITAL I INC.
as Depositor,
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Master Servicer,
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION
as Trustee,
and
ABN AMRO BANK, N.V.
as Fiscal Agent
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-LIFE1
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I 1
DEFINITIONS 1
ARTICLE II 5
PRIMARY SERVICING 5
SECTION 2.1 PRIMARY SERVICING. FROM THE CLOSING DATE UNTIL THE PRIMARY
SERVICING TERMINATION DATE, MASTER SERVICER HEREBY AUTHORIZES AND DIRECTS
PRIMARY SERVICER TO SERVICE EACH MORTGAGE LOAN AS PRIMARY SERVICER ON BEHALF
OF AND AT THE DIRECTION OF THE MASTER SERVICER AS PROVIDED IN THIS AGREEMENT.
THE SERVICES SHALL CONSIST OF THE FOLLOWING: 5
SECTION 2.2 STANDARD OF CARE. THE PRIMARY SERVICER SHALL PERFORM ALL SERVICES
ON BEHALF OF THE MASTER SERVICER IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT AND WITH THE SERVICING STANDARD, AND IN A MANNER CONSISTENT WITH
THE APPLICABLE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT. 8
SECTION 2.3 COMPENSATION AND OTHER PAYMENTS TO THE PRIMARY SERVICER. AS
CONSIDERATION FOR THE PRIMARY SERVICER'S PERFORMANCE OF THE SERVICES
HEREUNDER, THE PRIMARY SERVICER SHALL BE ENTITLED TO DEDUCT THE AGGREGATE
SERVICING FEE IN ACCORDANCE WITH SECTION 2.1(C)(III) OF THIS AGREEMENT, WITH
RESPECT TO THE RELATED COLLECTION PERIOD FOR EACH MORTGAGE LOAN, AND WITH
RESPECT TO EACH SUCH MORTGAGE LOAN FOR WHICH A PAYMENT WAS RECEIVED BY THE
MASTER SERVICER OR FORWARDED TO THE MASTER SERVICER BY THE PRIMARY SERVICER.
NOTWITHSTANDING THE FOREGOING, PRIMARY SERVICER SHALL NOT BE ENTITLED TO A
PRIMARY SERVICING FEE WITH RESPECT TO ANY MORTGAGE LOAN FOR WHICH A
SERVICING TRANSFER EVENT HAS OCCURRED UNLESS SUCH MORTGAGE LOAN BECOMES
A REHABILITATED MORTGAGE LOAN OR WITH RESPECT TO WHICH THE PRIMARY SERVICER
HAS BEEN TERMINATED AS PRIMARY SERVICER UNDER THIS AGREEMENT AND THE POOLING
AND SERVICING AGREEMENT. 8
PRIMARY SERVICER SHALL RETAIN ALL RIGHTS TO THE EXCESS SERVICING FEE FOR ALL
MORTGAGE LOANS, EVEN IF (A) ANY MORTGAGE LOAN OR MORTGAGE LOANS BECOME
SPECIALLY SERVICED MORTGAGE LOANS; (B) PRIMARY SERVICER'S SERVICING IS
TERMINATED WITH RESPECT TO PARTICULAR MORTGAGE LOANS OR (C) PRIMARY SERVICER
IS IN DEFAULT, IS TERMINATED OR RESIGNS UNDER THIS AGREEMENT. IF PRIMARY
SERVICER IS UNABLE TO DEDUCT THE EXCESS SERVICING FEE IN ACCORDANCE WITH
SECTION 2.1(C)(III) BECAUSE IT NO LONGER SERVICES A MORTGAGE LOAN OR
MORTGAGE LOANS OR FOR ANY OTHER REASON (OTHER THAN TRANSFER OR ASSIGNMENT
OF THE RIGHTS TO THE EXCESS SERVICING FEE), THEN MASTER SERVICER (AND ANY
SUCCESSOR) SHALL CAUSE THE EXCESS SERVICING FEE TO BE PAID ON THE MORTGAGE
LOANS TO PRIMARY SERVICER MONTHLY IN ACCORDANCE WITH THE TERMS OF THE
POOLING AND SERVICING AGREEMENT. 8
PRIMARY SERVICER SHALL HAVE THE BENEFIT AND SHALL RETAIN ALL INTEREST AND
INCOME EARNED ON THE PRIMARY SERVICER COLLECTION ACCOUNT FOR THE MORTGAGE
LOANS. IF PRIMARY SERVICER IS TERMINATED UNDER THIS AGREEMENT, IT SHALL BE
ENTITLED TO COLLECT ALL SUCH INTEREST AND INCOME THAT ACCRUES THROUGH THE
DATE OF TERMINATION. IF A MORTGAGE LOAN BECOMES A SPECIALLY SERVICED MORTGAGE
LOAN, PRIMARY SERVICER SHALL BE ENTITLED TO COLLECT ALL SUCH INTEREST AND
INCOME THAT ACCRUES THROUGH THE DATE OF THE APPLICABLE SERVICING TRANSFER
EVENT. THE RIGHT TO RETAIN SUCH INTEREST AND INCOME SHALL RESUME IF SUCH
MORTGAGE LOAN BECOMES A REHABILITATED MORTGAGE LOAN. 8
THE PRIMARY SERVICER SHALL ALSO BE ENTITLED TO RETAIN THE FEES OR PORTIONS
OF FEES SET FORTH IN THE POST CLOSING MATTERS DESCRIPTION. EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE PRIMARY SERVICER SHALL NOT BE
ENTITLED TO RECEIVE ANY DEFAULT INTEREST OR LATE FEES COLLECTED FROM THE
BORROWER, AND THE PRIMARY SERVICER SHALL PROMPTLY, UPON COLLECTION OF SUCH
AMOUNTS, FORWARD SUCH INTEREST AND FEES TO THE MASTER SERVICER IN ACCORDANCE
WITH THE PAYMENT AND COLLECTION DESCRIPTION. PRIMARY SERVICER MAY WAIVE THE
RIGHT TO COLLECT A FEE OR PORTION OF A FEE TO WHICH IT IS
i
<PAGE>
ENTITLED UNDER THIS AGREEMENT BUT MAY NOT WAIVE OR OTHERWISE AFFECT THE
RIGHTS OF OTHER PARTIES TO ANY OTHER FEES OR PORTIONS OF FEES TO WHICH
PRIMARY SERVICER IS NOT ENTITLED. 9
THE PRIMARY SERVICER SHALL BE REQUIRED TO PAY OUT OF ITS OWN FUNDS, WITHOUT
REIMBURSEMENT, ALL OVERHEAD AND GENERAL AND ADMINISTRATIVE EXPENSES
INCURRED BY IT IN CONNECTION WITH ITS SERVICING ACTIVITIES HEREUNDER,
INCLUDING COSTS FOR OFFICE SPACE, OFFICE EQUIPMENT, SUPPLIES AND RELATED
EXPENSES, EMPLOYEE SALARIES AND RELATED EXPENSES AND SIMILAR INTERNAL COSTS
AND EXPENSES, AND PRIMARY SERVICER SHALL BE REQUIRED TO PAY ALL EXPENSES
THAT IT INCURS IN THE ADMINISTRATION OF THIS AGREEMENT (BUT NOT THOSE
INCURRED AT THE DIRECTION OR REQUEST OF MASTER SERVICER OR A THIRD PARTY
WHICH DIRECTION OR REQUEST REQUIRES THE PERFORMANCE OF A TASK OR OBLIGATION
NOT CONTEMPLATED OF PRIMARY SERVICER UNDER THIS AGREEMENT) AND SHALL NOT BE
ENTITLED TO REIMBURSEMENT OF SUCH COSTS AND EXPENSES, EXCEPT (1) AS MAY BE
SPECIFICALLY PROVIDED IN THIS AGREEMENT OR (2) TO THE EXTENT EXPENSES ARE
REIMBURSABLE BY A MORTGAGOR UNDER THE APPLICABLE LOAN DOCUMENTS. 9
SECTION 2.4 PRIMARY SERVICER REPRESENTATIONS AND WARRANTIES. THE PRIMARY
SERVICER HEREBY MAKES FOR THE BENEFIT OF THE MASTER SERVICER THE SAME
REPRESENTATIONS AND WARRANTIES AS ARE MADE BY THE MASTER SERVICER UNDER
SECTION 8.20 OF THE POOLING AND SERVICING AGREEMENT; PROVIDED, HOWEVER,
THAT (A) REFERENCES THEREIN TO THE MASTER SERVICER SHALL BE DEEMED
REFERENCES TO THE PRIMARY SERVICER AND REFERENCES TO THE TRUSTEE SHALL BE
DEEMED REFERENCES TO THE MASTER SERVICER, (B) THE PRIMARY SERVICER IS DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING AS A LIMITED LIABILITY
COMPANY UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION. PRIMARY
SERVICER FURTHER REPRESENTS THAT SINCE ORIGINATION OF THE EACH MORTGAGE
LOAN, PRIMARY SERVICER HAS SERVICED EACH OF THE MORTGAGE LOANS IN
ACCORDANCE WITH ITS TERMS. 9
ARTICLE III 9
DOCUMENTS AND OTHER MATTERS 9
SECTION 3.1 SEGREGATION OF MORTGAGE LOAN DOCUMENTS. THE PRIMARY SERVICER
SHALL SEGREGATE THE PRIMARY SERVICER SERVICING DOCUMENTS RELATED TO THE
MORTGAGE LOANS FROM ALL OTHER ASSETS OF THE PRIMARY SERVICER AND, UPON
REQUEST, FORWARD TO THE MASTER SERVICER COPIES OF SUCH DOCUMENTS OR ORIGINALS
OF SUCH DOCUMENTS IF IN THE POSSESSION OF PRIMARY SERVICER AND NOT PART OF
THE MORTGAGE FILE FORWARDED TO THE TRUSTEE. 9
SECTION 3.2 ACCESS TO DOCUMENTS; PROVISION OF CERTAIN INFORMATION. THE
PRIMARY SERVICER SHALL MAKE AVAILABLE TO THE MASTER SERVICER OR ANY
SUCCESSOR PRIMARY SERVICER, AT A REASONABLE TIME, SUCH INFORMATION AS
THE MASTER SERVICER OR SUCH SUCCESSOR PRIMARY SERVICER SHALL REASONABLY
REQUEST IN WRITING AND SHALL MAKE AVAILABLE TO THE MASTER SERVICER OR
ANY SUCCESSOR PRIMARY SERVICER OR PERSONS DESIGNATED BY THE MASTER 00000000
OR SUCH SUCCESSOR PRIMARY SERVICER SUCH DOCUMENTS AS THE MASTER SERVICER
SHALL REASONABLY REQUEST IN WRITING. THE MASTER SERVICER SHALL MAKE
AVAILABLE TO THE PRIMARY SERVICER, AT A REASONABLE TIME, SUCH INFORMATION
AS THE PRIMARY SERVICER SHALL REASONABLY REQUEST IN WRITING IN CONNECTION
WITH THE PERFORMANCE OF THE SERVICES AND, SUBJECT TO THE TERMS AND
CONDITIONS OF SECTION 8.15 OF THE POOLING AND SERVICING AGREEMENT, SHALL
MAKE AVAILABLE TO THE PRIMARY SERVICER OR PERSONS DESIGNATED BY THE PRIMARY
SERVICER SUCH DOCUMENTS RELATED TO THE MORTGAGE LOANS AND THE SERVICING OF
THE MORTGAGE LOANS AS THE PRIMARY SERVICER SHALL REASONABLY REQUEST IN
WRITING. 9
ARTICLE IV 10
MASTER SERVICER ASSISTANCE 10
SECTION 4.1 MASTER SERVICER ASSISTANCE. 10
SECTION 4.2 SPECIALLY SERVICED MORTGAGE LOANS. THE PRIMARY SERVICER SHALL
PROMPTLY NOTIFY THE MASTER SERVICER AND SPECIAL SERVICER WITH RESPECT TO
SPECIALLY SERVICED MORTGAGE LOANS OF ANY QUESTIONS, COMPLAINTS, LEGAL
NOTICES, OR OTHER COMMUNICATIONS RELATING TO THE FORECLOSURE OR DEFAULT OF A
MORTGAGE LOAN THAT ARE RECEIVED BY THE PRIMARY SERVICER AND WITH RESPECT TO
SUCH MORTGAGE LOAN SUCH OTHER MATTERS AS WOULD, CONSISTENT WITH THE SERVICING
STANDARD, REQUIRE NOTIFICATION TO THE OWNER OR THE SERVICER OF THE MORTGAGE
LOAN. THE MASTER SERVICER SHALL PROMPTLY NOTIFY THE PRIMARY SERVICER WITH
RESPECT TO ANY SPECIALLY SERVICED MORTGAGE LOAN THAT BECOMES A REHABILITATED
MORTGAGE LOAN AND SHALL
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PROVIDE PRIMARY SERVICER WITH ALL RELEVANT DOCUMENTS RECEIVED DURING THE
TIME THAT THE RELEVANT MORTGAGE LOAN WAS A SPECIALLY SERVICED MORTGAGE
LOAN. 10
ARTICLE V 10
ADDITIONAL PRIMARY SERVICER COVENANTS 10
SECTION 5.1 NOTICE OF LITIGATION. WITH RESPECT TO ANY MORTGAGE LOAN AS TO
WHICH LITIGATION IS INSTITUTED, THE PRIMARY SERVICER, IF AWARE OF SUCH
LITIGATION, SHALL NOTIFY THE MASTER SERVICER IMMEDIATELY AS TO THE STATUS OF
THE LITIGATION RELATED TO SUCH MORTGAGE LOAN AND SHALL, WHEN REASONABLY
REQUIRED OR REQUESTED BY THE MASTER SERVICER, PROVIDE TO THE MASTER SERVICER
COPIES OF ALL PERTINENT INFORMATION IN THE PRIMARY SERVICER'S POSSESSION
RELATED TO SUCH LITIGATION, INCLUDING, WITHOUT LIMITATION, COPIES OF RELATED
SERVICING DOCUMENTS. 10
SECTION 5.2 NO PERSONAL SOLICITATION. THE PRIMARY SERVICER HEREBY AGREES
THAT IT WILL NOT KNOWINGLY TAKE ANY ACTION OR CAUSE ANY ACTION TO BE TAKEN
BY ANY OF ITS AGENTS OR AFFILIATES, OR INDEPENDENT CONTRACTORS OR WORKING
ON ITS BEHALF, TO PERSONALLY, BY TELEPHONE OR MAIL, SOLICIT THE PREPAYMENT
OF ANY MORTGAGE LOAN BY ANY BORROWER. PRIMARY SERVICER AGREES NOT TO
FORWARD TO ANY MORTGAGOR OR OTHER OBLIGORS UNDER A MORTGAGE LOAN, ANY
CORRESPONDENCE OR DOCUMENTS BETWEEN MASTER SERVICER AND PRIMARY SERVICER
REGARDING A POST CLOSING REQUEST (EXCEPT THE REQUIREMENTS LIST (AS DEFINED
IN EXHIBIT B-2(C)) WITHOUT THE CONSENT OF THE MASTER SERVICER OR SPECIAL
SERVICER (ACTING IN ITS SOLE DISCRETION), UNLESS REQUIRED BY LAW. 11
SECTION 5.3 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE. THE PRIMARY
SERVICER SHALL DELIVER TO THE MASTER SERVICER ON OR BEFORE MARCH 15 OF EACH
YEAR, COMMENCING WITH MARCH 15, 2000, AN OFFICER'S CERTIFICATE CERTIFYING
THAT, WITH RESPECT TO THE PERIOD ENDING ON THE PRECEDING DECEMBER 31, (I)
SUCH SERVICING OFFICER HAS REVIEWED THE ACTIVITIES OF THE PRIMARY SERVICER
DURING THE PRECEDING CALENDAR YEAR OR PORTION THEREOF AND ITS PERFORMANCE
UNDER THIS AGREEMENT HAS BEEN MADE UNDER SUCH OFFICER'S SUPERVISION AND (II)
TO THE BEST OF SUCH SERVICING OFFICER'S KNOWLEDGE, BASED ON SUCH REVIEW, THE
PRIMARY SERVICER HAS PERFORMED AND FULFILLED ITS DUTIES, RESPONSIBILITIES AND
OBLIGATIONS UNDER THIS AGREEMENT IN ALL MATERIAL RESPECTS THROUGHOUT SUCH
YEAR, OR, IF THERE HAS BEEN A DEFAULT IN THE FULFILLMENT OF ANY SUCH DUTIES,
RESPONSIBILITIES OR OBLIGATIONS, SPECIFYING EACH SUCH DEFAULT KNOWN TO SUCH
SERVICING OFFICER AND THE NATURE AND STATUS THEREOF. 11
SECTION 5.4 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. ON OR BEFORE
APRIL 1 OF THE YEAR, COMMENCING WITH APRIL 1, 2000, THE PRIMARY SERVICER
AT ITS OWN EXPENSE SHALL CAUSE A FIRM OF INDEPENDENT PUBLIC ACCOUNTANTS
WHO MAY ALSO RENDER OTHER SERVICES TO THE PRIMARY SERVICER) WHICH IS A
MEMBER OF THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS TO FURNISH
A STATEMENT TO THE MASTER SERVICER TO THE EFFECT THAT SUCH FIRM HAS EXAMINED
CERTAIN RECORDS AND DOCUMENTS RELATING TO THE PRIMARY SERVICER'S PERFORMANCE
OF ITS SERVICING OBLIGATIONS UNDER THIS AGREEMENT IN ACCORDANCE WITH THE
REQUIREMENTS OF THE UNIFORM SINGLE ATTESTATION PROGRAM FOR MORTGAGE BANKERS,
AND IN EACH CASE STATING SUCH FIRM'S CONCLUSIONS RELATING THERETO. 11
SECTION 5.5 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY. 11
SECTION 5.6 PRIMARY SERVICER'S FINANCIAL STATEMENTS AND RELATED INFORMATION.
THE PRIMARY SERVICER SHALL DELIVER TO THE MASTER SERVICER, WITHIN 120 DAYS
AFTER THE END OF ITS FISCAL YEAR, A COPY OF ITS ANNUAL FINANCIAL STATEMENTS,
SUCH FINANCIAL STATEMENTS TO BE AUDITED IF THEN CUSTOMARILY AUDITED, AND WITH
RESPECT TO ANY UNAUDITED FINANCIAL STATEMENTS PROVIDED BY THE PRIMARY
SERVICER, WHICH FINANCIAL STATEMENTS SHALL BE CERTIFIED BY THE PRIMARY
SERVICER'S CHIEF FINANCIAL OFFICER TO BE TRUE, CORRECT AND COMPLETE. THE
PRIMARY SERVICER SHALL NOTIFY THE MASTER SERVICER, AS OF THE CLOSING DATE,
OF THE PRIMARY SERVICER'S FISCAL YEAR AND SHALL NOTIFY THE MASTER SERVICER
PROMPTLY AFTER ANY CHANGE THEREOF. 12
SECTION 5.7 NO ADVANCING. UNDER NO CIRCUMSTANCE SHALL THE PRIMARY SERVICER
MAKE OR HAVE AN OBLIGATION TO MAKE ANY ADVANCES. 12
SECTION 5.8 REMIC COMPLIANCE. THE PRIMARY SERVICER SHALL TAKE NO ACTION THAT
WOULD IMPAIR THE MASTER SERVICER'S OBLIGATIONS WITH RESPECT TO REMIC
COMPLIANCE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT. 12
SECTION 5.9 INSPECTION RIGHTS. THE PRIMARY SERVICER SHALL AFFORD THE MASTER
SERVICER AND THE TRUSTEE, UPON REASONABLE NOTICE AND DURING NORMAL BUSINESS
HOURS, REASONABLE ACCESS TO ALL RECORDS, INFORMATION, BOOKS AND DOCUMENTATION
REGARDING THE APPLICABLE MORTGAGE LOANS, AND ALL ACCOUNTS, INSURANCE POLICIES
AND OTHER RELEVANT MATTERS RELATING TO THIS AGREEMENT, AND
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ACCESS TO SERVICING OFFICERS OF THE PRIMARY SERVICER RESPONSIBLE FOR ITS
OBLIGATIONS HEREUNDER. 12
SECTION 5.10 AUTHORIZED OFFICER. PRIMARY SERVICER SHALL PROVIDE MASTER
SERVICER PROMPTLY WITH A WRITTEN LIST OF AUTHORIZED SERVICING OFFICERS OF
PRIMARY SERVICER, WHICH MAY BE AMENDED FROM TIME TO TIME BY WRITTEN NOTICE
FROM PRIMARY SERVICER TO MASTER SERVICER; PROVIDED, HOWEVER, THAT SUCH LIST
SHALL DENOTE ONE PRINCIPAL SERVICING OFFICER RESPONSIBLE FOR THE PRIMARY
SERVICER'S OBLIGATIONS UNDER THIS AGREEMENT. 12
SECTION 5.11 YEAR 2000 COMPLIANCE. PRIMARY SERVICER COVENANTS THAT BY
AUGUST 31, 1999, ANY CUSTOM-MADE SOFTWARE OR HARDWARE DESIGNED OR PURCHASED
OR LICENSED BY PRIMARY SERVICER AND USED BY PRIMARY SERVICER IN THE COURSE
OF OPERATION OR MANAGEMENT OF, OR THE COMPILING, REPORTING OR GENERATION OF
DATA REQUIRED BY THIS AGREEMENT, WILL NOT CONTAIN ANY DEFICIENCY (X) IN THE
ABILITY OF SUCH SOFTWARE OR HARDWARE TO IDENTIFY CORRECTLY OR PERFORM
CALCULATIONS OR OTHER PROCESSING WITH RESPECT TO DATES AFTER AUGUST 31, 1999;
OR (Y) THAT WOULD CAUSE SUCH SOFTWARE TO BE NO LONGER FIT FOR THE PURPOSE FOR
WHICH IT WAS INTENDED BY REASON OF THE CHANGING OF THE YEAR FROM 1999 TO
2000. 12
SECTION 5.12 ADDITIONAL REPORTS. PRIMARY SERVICER SHALL PRODUCE SUCH
ADDITIONAL WRITTEN REPORTS WITH RESPECT TO THE MORTGAGE LOANS AS THE MASTER
SERVICER MAY FROM TIME TO TIME REASONABLY REQUEST IN ACCORDANCE WITH THE
SERVICING STANDARD. 13
SECTION 5.13. PREPAYMENTS. FOR ANY MORTGAGE LOAN, PRIMARY SERVICER SHALL
REQUIRE PRINCIPAL PREPAYMENTS TO BE MADE SO AS NOT TO CAUSE A PREPAYMENT
INTEREST SHORTFALL. IF THE LOAN DOCUMENTS OF A RELATED MORTGAGE LOAN DO NOT
ALLOW PRIMARY SERVICER TO REQUIRE PRINCIPAL PREPAYMENTS ON A DATE THAT WILL
AVOID A PREPAYMENT INTEREST SHORTFALL ("NON-MANDATORY PREPAYMENT DATE
MORTGAGE LOAN"), THEN PRIMARY SERVICER SHALL REMIT TO MASTER SERVICER ON THE
DATE SPECIFIED IN SECTION 2.1(C)(IV) OF THIS AGREEMENT IN ADDITION TO ALL
OTHER AMOUNTS DUE FOR SUCH PRINCIPAL PREPAYMENT, THE AMOUNT OF ANY PREPAYMENT
INTEREST SHORTFALL THAT RESULTS FROM SUCH PRINCIPAL PREPAYMENT; PROVIDED,
HOWEVER, THAT (A) PRIMARY SERVICER SHALL BE ENTITLED TO KEEP ANY PREPAYMENT
INTEREST EXCESS THAT RESULTS FROM A PRINCIPAL PREPAYMENT MADE ON A
NON-MANDATORY PREPAYMENT DATE MORTGAGE LOAN AND (B) PRIMARY SERVICER SHALL
IN NO EVENT BE REQUIRED TO REMIT AN AMOUNT GREATER THAN THE AMOUNT OF THE
PRIMARY SERVICING FEE FOR SUCH COLLECTION PERIOD. 13
SECTION 5.14. CONSENTS. PRIMARY SERVICER SHALL (A) OBTAIN THE CONSENT OF
THE SPECIAL SERVICER WITH RESPECT TO ASSIGNMENTS AND ASSUMPTIONS OF
MORTGAGE LOANS IN ACCORDANCE AND SUBJECT TO THE TERMS OF SECTION A.1.(C)(II)
OF EXHIBIT B-2(C) OF THIS AGREEMENT; (B) OBTAIN THE CONSENT OF THE MASTER
SERVICER WITH RESPECT TO THE DEFEASANCE OF MORTGAGE LOANS IN ACCORDANCE AND
SUBJECT TO THE TERMS OF SECTION A.1.(C)(I) OF EXHIBIT B-2(C) OF THIS
AGREEMENT; AND (C) NOTIFY MASTER SERVICER OF ANY CATEGORY 1 CONSENT ASPECT
IN ANY CATEGORY 1 REQUEST, WHICH SHALL THEN BE SUBJECT TO MASTER SERVICER'S
MATERIALITY DETERMINATION AND THEREAFTER HANDLED IN ACCORDANCE WITH
SECTIONS A.1.(A) AND (C)(III) OF EXHIBIT B-2(C) OF THIS AGREEMENT. 13
ARTICLE VI 13
PRIMARY SERVICER DEFAULT; TERMINATION; 13
POST-TERMINATION OBLIGATIONS 13
SECTION 6.1 PRIMARY SERVICER DEFAULT. EACH OF THE FOLLOWING EVENTS SHALL
CONSTITUTE A "PRIMARY SERVICER DEFAULT" HEREUNDER: 13
SECTION 6.2 TERMINATION. 14
SECTION 6.3 POST-TERMINATION OBLIGATIONS. 15
SECTION 6.4 ADDITIONAL TERMINATION. 16
ARTICLE VII 16
SUBCONTRACTORS 17
ARTICLE VIII 17
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PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER 17
ARTICLE IX 17
INDEMNIFICATION 17
SECTION 9.1 PRIMARY SERVICER'S INDEMNITY. 17
SECTION 9.2 MASTER SERVICER'S INDEMNITY. MASTER SERVICER SHALL USE ALL
REASONABLE EFFORTS TO OBTAIN THE BENEFITS OF THE RIGHTS OF INDEMNIFICATION IN
FAVOR OF MASTER SERVICER CONTAINED IN THE POOLING AND SERVICING AGREEMENT ON
BEHALF OF THE PRIMARY SERVICER AND THE PRIMARY SERVICER'S AGENTS, EMPLOYEES
AND SUBCONTRACTORS AND SHALL CAUSE THE INDEMNIFYING PARTY TO HOLD THE PRIMARY
SERVICER AND THE PRIMARY SERVICER'S AGENTS, EMPLOYEES AND SUBCONTRACTORS
HARMLESS FROM ANY AND ALL LOSSES, LIABILITIES, EXPENSES, CLAIMS, DEMANDS,
COSTS OR JUDGMENTS OF ANY TYPE AGAINST THE PRIMARY SERVICER ARISING OUT OF OR
RELATED TO THE PRIMARY SERVICER'S PERFORMANCE HEREUNDER. THE PRIMARY
SERVICER'S RIGHTS PROVIDED UNDER THIS SECTION 9.2 SHALL SURVIVE THE PRIMARY
SERVICING TERMINATION DATE. 18
ARTICLE X 18
MISCELLANEOUS 18
SECTION 10.1 SEVERABILITY. EACH PART OF THIS AGREEMENT IS INTENDED TO BE
SEVERABLE. IF ANY TERM, COVENANT, CONDITION OR PROVISION HEREOF IS UNLAWFUL,
INVALID, OR UNENFORCEABLE FOR ANY REASONS WHATSOEVER, AND SUCH ILLEGALITY,
INVALIDITY, OR UNENFORCEABILITY DOES NOT AFFECT REMAINING PART OF THIS
AGREEMENT, THEN ALL SUCH REMAINING PARTS HEREOF SHALL BE VALID AND
ENFORCEABLE AND HAVE FULL FORCE AND EFFECT AS IF THE INVALID OR UNENFORCEABLE
PART HAD NOT BEEN INCLUDED. 18
SECTION 10.2 RIGHTS CUMULATIVE; WAIVERS. THE RIGHTS OF EACH OF THE PARTIES
UNDER THIS AGREEMENT ARE CUMULATIVE AND MAY BE EXERCISED AS OFTEN AS ANY
PARTY CONSIDERS APPROPRIATE. THE RIGHTS OF EACH OF THE PARTIES HEREUNDER
SHALL NOT BE CAPABLE OF BEING WAIVED OR AMENDED OTHER THAN BY AN EXPRESS
WAIVER OR AMENDMENT IN WRITING. ANY FAILURE TO EXERCISE (OR ANY DELAY IN
EXERCISING) ANY OF SUCH RIGHTS SHALL NOT OPERATE AS A WAIVER OR AMENDMENT
OF THAT OR ANY OTHER SUCH RIGHT. ANY DEFECTIVE OR PARTIAL EXERCISE OF
ANY OF SUCH RIGHT SHALL NOT PRECLUDE ANY OTHER OR FURTHER EXERCISE OF
THAT OR ANY OTHER SUCH RIGHT NO ACT OR COURSE OF CONDUCT OR NEGOTIATION
ON THE PART OF ANY PARTY SHALL IN ANY WAY ESTOP OR PRECLUDE SUCH PARTY
FROM EXERCISING ANY SUCH RIGHT OR CONSTITUTE A SUSPENSION OR ANY WAIVER
OF ANY SUCH RIGHT. 18
SECTION 10.3 HEADINGS. THE HEADINGS OF THE SECTIONS AND ARTICLES CONTAINED
IN THIS AGREEMENT ARE INSERTED FOR CONVENIENCE ONLY AND SHALL NOT AFFECT
THE MEANING OR INTERPRETATION OF THIS AGREEMENT OR ANY PROVISION HEREOF. 18
SECTION 10.4 CONSTRUCTION. UNLESS THE CONTEXT OTHERWISE REQUIRES, SINGULAR
NOUNS AND PRONOUNS, WHEN USED HEREIN, SHALL BE DEEMED TO INCLUDE THE PLURAL
OF SUCH NOUN OR PRONOUN AND PRONOUNS OF ONE GENDER SHALL BE DEEMED TO
INCLUDE THE EQUIVALENT PRONOUN OF THE OTHER GENDER. THIS AGREEMENT IS THE
RESULT OF ARM'S-LENGTH NEGOTIATIONS BETWEEN THE PARTIES AND HAS BEEN
REVIEWED BY EACH HERETO AND ITS COUNSEL. EACH PARTY AGREES THAT ANY
AMBIGUITY IN THIS AGREEMENT SHALL NOT BE INTERPRETED AGAINST THE PARTY
DRAFTING THE PARTICULAR CLAUSE WHICH IS IN QUESTION. 19
SECTION 10.5 ASSIGNMENT. THIS AGREEMENT AND THE TERMS, COVENANTS, CONDITIONS,
PROVISIONS, OBLIGATIONS, UNDERTAKINGS, RIGHTS AND BENEFITS HEREOF, SHALL BE
BINDING UPON, AND SHALL INURE TO THE BENEFIT OF, THE UNDERSIGNED PARTIES AND
THEIR RESPECTIVE HEIRS, EXECUTORS, ADMINISTRATORS, REPRESENTATIVES,
SUCCESSORS, AND ASSIGNS. THIS AGREEMENT AND THE RIGHTS AND BENEFITS HEREUNDER
OF THE PRIMARY SERVICER SHALL NOT BE ASSIGNABLE, AND THE DUTIES AND
OBLIGATIONS HEREUNDER OF SUCH PARTY SHALL NOT BE DELEGABLE, EXCEPT THAT IN
THE FOLLOWING INSTANCES, PRIMARY SERVICER MAY ASSIGN, SELL OR TRANSFER ITS
RIGHTS UNDER THIS AGREEMENT WITHOUT THE CONSENT OF (BUT UPON WRITTEN NOTICE
TO) THE MASTER SERVICER: 19
(A) PRIMARY SERVICER MAY ASSIGN, SELL OR TRANSFER ITS RIGHTS AND OBLIGATIONS
UNDER THIS AGREEMENT TO A PARENT COMPANY OF PRIMARY SERVICER OR A
WHOLLY-OWNED SUBSIDIARY OR AFFILIATE OF SUCH PARTY, OR A SUCCESSOR BY MERGER
OR AS THE RESULT OF A DEMUTUALIZATION OF A PARENT COMPANY OF PRIMARY
SERVICER, AS LONG AS SUCH SUCCESSOR HAS NET ASSETS AND NET WORTH EQUAL TO OR
GREATER THAN THE NET ASSETS AND NET WORTH OF THE PRIMARY SERVICER. 19
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(B) PRIMARY SERVICER MAY ASSIGN, SELL OR TRANSFER ITS RIGHTS AND OBLIGATIONS
UNDER THIS AGREEMENT TO AN ENTITY THAT THEN SERVES AS A PRIMARY SERVICER FOR
OTHER MORTGAGE LOANS HELD BY THE TRUST AT THE TIME OF SUCH ASSIGNMENT, SALE
OR TRANSFER. 19
(C) WITH THE PRIOR WRITTEN CONSENT OF MASTER SERVICER WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD OR DELAYED, PRIMARY SERVICER MAY ASSIGN, SELL OR
TRANSFER ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT TO ANY MASTER OR
PRIMARY SERVICER, IF (1) SUCH ENTITY IS RATED BY THE RATING AGENCIES AS
SATISFACTORY OR ITS EQUIVALENT IN SUCH CAPACITY OR (2) PRIMARY SERVICER AT
ITS SOLE COST RECEIVES RATING AGENCY CONFIRMATION FROM THE RATING AGENCIES
PRIOR TO SUCH ASSIGNMENT, SALE OR TRANSFER. 19
(D) PRIMARY SERVICER MAY ASSIGN OR SUBCONTRACT CERTAIN OF ITS RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT AS EXPRESSLY PROVIDED IN AND SUBJECT TO
THE TERMS OF THIS AGREEMENT. 19
ANY SUCH ASSIGNMENT UNDER THIS SECTION 10.5 SHALL (I) NOT BE EFFECTIVE UNTIL
SUCH SUCCESSOR PRIMARY SERVICER ENTERS INTO A WRITTEN AGREEMENT REASONABLY
SATISFACTORY TO MASTER SERVICER AGREEING TO BE BOUND BY THE TERMS AND
PROVISIONS OF THIS AGREEMENT (BUT NOT ALTERING THE OBLIGATIONS UNDER THIS
AGREEMENT); AND (II) NOT RELIEVE THE ASSIGNING PRIMARY SERVICER OF ANY DUTIES
OR LIABILITIES ARISING OR INCURRED PRIOR TO SUCH ASSIGNMENT. ANY COSTS OR
EXPENSES INCURRED IN CONNECTION WITH SUCH ASSIGNMENT SHALL BE PAYABLE BY THE
ASSIGNING PRIMARY SERVICER. ANY ASSIGNMENT OF DELEGATION OR ATTEMPTED
ASSIGNMENT OR DELEGATION IN CONTRAVENTION OF THIS AGREEMENT SHALL BE NULL AND
VOID. THE PROCEEDS OF ANY ASSIGNMENT, SALE OR TRANSFER PERMITTED UNDER THIS
SECTION 10.5 OR TO WHICH CONSENT WAS GRANTED SHALL BELONG SOLELY TO THE
ASSIGNOR OF SUCH RIGHTS, AND MASTER SERVICER SHALL HAVE NO CLAIM TO THEM. 19
SECTION 10.6 RESIGNATION OF PRIMARY SERVICER. 19
SECTION 10.7 PRIOR UNDERSTANDINGS. THIS AGREEMENT SUPERSEDES ANY AND ALL
PRIOR DISCUSSIONS AND AGREEMENTS BETWEEN OR AMONG THE SELLER, THE PRIMARY
SERVICER AND THE MASTER SERVICER WITH RESPECT TO THE SERVICING OF THE
MORTGAGE LOANS AND THE OTHER MATTERS CONTAINED HEREIN. THIS AGREEMENT,
TOGETHER WITH THE POOLING AND SERVICING AGREEMENT, CONTAIN THE SOLE AND
ENTIRE UNDERSTANDING BETWEEN THE PARTIES HERETO WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED HEREIN. EVERY EFFORT SHALL BE MADE TO CONSTRUE THIS
AGREEMENT AND THE POOLING AND SERVICING AGREEMENT CONSISTENTLY. IF A CONFLICT
EXISTS BETWEEN SUCH AGREEMENTS, THEN THE POOLING AND SERVICING AGREEMENT
SHALL CONTROL. IF THIS AGREEMENT REQUIRES PRIMARY SERVICER TO PERFORM A TASK
OR DUTY, THE DETAILS AND OBLIGATIONS OF WHICH ARE (A) SET FORTH IN THIS
AGREEMENT AND (B)(I) ARE NOT SET FORTH IN THE POOLING AND SERVICING AGREEMENT
OR (II) ARE SET FORTH IN THE POOLING AND SERVICING AGREEMENT ONLY IN GENERAL
TERMS, THEN PRIMARY SERVICER SHALL PERFORM SUCH TASK AND DUTIES IN ACCORDANCE
WITH THE DETAILS AND OBLIGATIONS SET FORTH IN THIS AGREEMENT. IF THIS
AGREEMENT REQUIRES PRIMARY SERVICER TO PERFORM A TASK OR DUTY, THE DETAILS
AND OBLIGATIONS OF WHICH ARE NOT SET FORTH IN THIS AGREEMENT BUT ARE
CONTAINED IN THE POOLING AND SERVICING AGREEMENT, THEN THE PRIMARY SERVICER
SHALL PERFORM SUCH TASK AND DUTIES IN ACCORDANCE WITH THE POOLING AND
SERVICING AGREEMENT. 20
SECTION 10.8 INTEGRATED AGREEMENT. THIS AGREEMENT CONSTITUTES THE FINAL
COMPLETE EXPRESSION OF THE INTENT AND UNDERSTANDING OF THE PRIMARY SERVICER
AND THE MASTER SERVICER AND MAY NOT BE ALTERED OR MODIFIED EXCEPT BY
A SUBSEQUENT WRITING, SIGNED BY THE PRIMARY SERVICER AND THE MASTER
SERVICER. 20
SECTION 10.9 COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER
OF COUNTERPARTS, EACH OF WHICH SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
ANY PARTY HERETO MAY EXECUTE THIS AGREEMENT BY SIGNING ANY SUCH
COUNTERPART. 20
SECTION 10.10 GOVERNING LAWS. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES. 20
SECTION 10.11 NOTICES. UNLESS OTHERWISE PROVIDED FOR HEREIN, ALL NOTICES AND
OTHER COMMUNICATIONS REQUIRED OR PERMITTED HEREUNDER SHALL BE IN WRITING
(INCLUDING A WRITING DELIVERED BY FACSIMILE TRANSMISSION) AND SHALL BE DEEMED
TO HAVE BEEN DULY GIVEN (A) WHEN DELIVERED, IF SENT BY REGISTERED OR
CERTIFIED MAIL (RETURN RECEIPT REQUESTED), IF DELIVERED PERSONALLY OR BY
FACSIMILE OR (B) ON THE SECOND FOLLOWING BUSINESS DAY, IF SENT BY OVERNIGHT
MAIL OR OVERNIGHT COURIER, IN
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EACH CASE TO THE PARTIES AT THE FOLLOWING ADDRESSES (OR AT SUCH OTHER
ADDRESSES AS SHALL BE SPECIFIED BY LIKE NOTICE); 20
SECTION 10.12 AMENDMENT. IN THE EVENT THAT THE POOLING AND SERVICING
AGREEMENT IS AMENDED, THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN AMENDED AND
TO THE EXTENT NECESSARY TO REFLECT SUCH AMENDMENT TO THE POOLING AND
SERVICING AGREEMENT, BUT NO SUCH AMENDMENT TO THE POOLING AND SERVICING
AGREEMENT OR DEEMED AMENDMENT TO THIS AGREEMENT SHALL INCREASE THE
OBLIGATIONS OR DECREASE THE RIGHTS OF PRIMARY SERVICER UNDER THIS AGREEMENT
WITHOUT ITS EXPRESS WRITTEN CONSENT WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED. 21
SECTION 10.13 OTHER. THIS AGREEMENT SHALL NOT BE CONSTRUED TO GRANT TO ANY
PARTY HERETO ANY CLAIM, RIGHT OR INTEREST IN, TO OR AGAINST THE TRUST FUND
CREATED PURSUANT TO THE POOLING AND SERVICING AGREEMENT OR ANY ASSETS OF
SUCH TRUST FUND. 21
SCHEDULE I 23
EXHIBIT B-4 1
ADDRESS: PROPERTY ADDRESS 1
CITY, STATE, ZIP CODE 1
Insurance Escrow Balance: $1
PROPERTY FINANCIAL SUMMARY: (SEE ATTACHED MOST RECENT INCOME AND EXPENSE
STATEMENT FOR MORTGAGED PROPERTY AND YEAR-TO-DATE OPERATING STATEMENTS) 2
1. State recommendation for approval. 3
2. Highlight strengths and weaknesses. How are weakness mitigated?
(bullet points are fine) 3
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This PRIMARY SERVICING AGREEMENT, dated and effective as of August 1, 1999,
by and between PRINCIPAL CAPITAL MANAGEMENT, LLC (in the capacity of primary
servicer, the "Primary Servicer") and WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, acting solely in its capacity as Master Servicer
under the Pooling and Servicing Agreement (as defined below) (the "Master
Servicer").
WHEREAS, Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank,
National Association, as master servicer, Wells Fargo Bank, National
Association, as special servicer, ABN AMRO BANK, N.V., as fiscal agent and
LASALLE BANK NATIONAL ASSOCIATION, as trustee, have entered into a Pooling and
Servicing Agreement, dated as of August 1, 1999, relating to the Commercial
Mortgage Pass-Through Certificates, Series 1999-LIFE1 (as amended, from time to
time, the "Pooling and Servicing Agreement"), a copy of which is attached hereto
as Exhibit A;
WHEREAS, the Master Servicer desires that the Primary Servicer act as
Primary Servicer with respect to the mortgage loans listed on Schedule I hereto
(each a "Mortgage Loan") and provide, on behalf of the Master Servicer, the
necessary servicing of the Mortgage Loans performed in a manner consistent with
the Servicing Standard and in a manner consistent with this Agreement and the
Pooling and Servicing Agreement from the Closing Date until this Agreement is
terminated in accordance herewith; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Primary Servicer and the Master Servicer hereby agree as
follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set
forth below. Capitalized terms not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement, provided that terms
contained in the Pooling and Servicing Agreement pertaining to a particular
mortgage loan shall be deemed to pertain to the related Mortgage Loan that is
the subject of this Agreement.
"AGGREGATE SERVICING FEE": means the Primary Servicing Fee and the Excess
Servicing Fee.
"AGREEMENT": This Primary Servicing Agreement, as modified, amended and
supplemented from time to time, including all exhibits, schedules and addenda
hereto.
"CATEGORY 1 CONSENT ASPECT": means a condition, term or provision of a
Category 1 Request that requires, or specifies a standard of, consent, or
approval of the applicable mortgagee under the Loan Documents, but shall
explicitly exclude any such conditions, terms or provisions enumerated in (a) an
escrow or reserve agreement for disbursements made from an escrow or reserve
account; (b) an assignment and assumption request covered under Section
A.1.(c)(ii) of Exhibit B-2(c) of this Agreement; or (c) a defeasance request
covered under Section A.1.(c)(i) of Exhibit B-2(c) of this Agreement.
"CATEGORY 1 REQUEST": As defined in the Post Closing Matters Description in
Exhibit B-2.
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"CATEGORY 2 REQUEST": As defined in the Post Closing Matters Description in
Exhibit B-2.
"CATEGORY 3 REQUEST": As defined in the Post Closing Matters Description in
Exhibit B-2.
"DAY ONE REPORT": With respect to each Mortgage Loan, a statement in the
form of Exhibit B-1(f) setting forth the scheduled payments of interest and
principal and the amount of any unanticipated prepayments of which the Primary
Servicer has received notice, indicating the Mortgage Loan and on account of
what type of payment such amount is to be applied on behalf of the related
Mortgagor.
"EXCESS SERVICING FEE": means with respect to the Mortgage Loans, the
monthly fee payable to Primary Servicer or its successors and assigns, as holder
of excess servicing rights, which fee shall accrue at the Excess Servicing Fee
Rate with respect to each Mortgage Loan.
"EXCESS SERVICING FEE RATE": means the rate of 0.0% per annum with respect
to each Mortgage Loan.
"LOAN DOCUMENTS": As defined in the Post Closing Matters Description in
Exhibit B-2.
"MATERIALITY DETERMINATION": means with respect to a Category 1 Request,
Master Servicer's determination, exercised good faith using the Servicing
Standard, whether a Category 1 Consent Aspect is material and should be referred
to the Special Servicer for consent in accordance with this Agreement.
"MORTGAGE LOAN": means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the schedule attached to
this Agreement as Schedule 1, as amended from time to time, and conveyed,
transferred, sold, assigned to or deposited with the Trustee pursuant to Section
2.1 or Section 2.3 of the Pooling and Servicing Agreement, and Mortgage Loan
shall also include any Defeasance Loan.
"MASTER SERVICER": As defined in the preamble to this Agreement.
"MASTER SERVICER SERVICING DOCUMENTS": means a copy of the documents
contained in the Mortgage File for the Mortgage Loans.
"NON-MANDATORY PREPAYMENT DATE MORTGAGE LOAN": As defined in Section 5.13
below.
"OFFICER'S CERTIFICATE": In the case of the Primary Servicer, a certificate
signed by one or more of the Chairman of the Board, any Vice Chairman, the
President, or any Senior Vice President, Vice President or Assistant Vice
President or an employee designated as a Servicing Officer pursuant to this
Agreement.
"PAYMENT AND COLLECTION DESCRIPTION": The description of the obligations of
the Primary Servicer with respect to collection and remittance of payments on
the Mortgage Loans as more particularly described in Section 2.1(c) below.
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"PAYMENT AND MORTGAGE LOAN STATUS REPORTS": The form of reports to be
submitted by Primary Servicer with respect to reporting about collection and
remittance of payments, delinquencies, status of real estate taxes, status of
insurance and status of UCC financing statement for the Mortgage Loans as more
particularly described and set forth on Exhibit B-1.
"POA NOTICE": As defined in the Post Closing Matters Description in Exhibit
B-2.
"POOLING AND SERVICING AGREEMENT": As defined in the preamble to this
Agreement.
"POST CLOSING MATTERS DESCRIPTION": The description of the obligations of
the Primary Servicer and Master Servicer with respect to requests from
Mortgagors on Mortgage Loans that have not become Defaulted Mortgage Loans, a
Specially Serviced Mortgage Loan or one on which a Servicing Transfer Event has
occurred, which obligations are more particularly described and set forth on
Exhibit B-2.
"POST CLOSING REQUEST": As defined in the Post Closing Matters Description
in Exhibit B-2.
"POWER OF ATTORNEY": As defined in Section 4.2 of this Agreement.
"PRIMARY SERVICER COLLECTION ACCOUNT": means an account which is an
Eligible Account established by Primary Servicer for the purposes set forth in
this Agreement, the income and earnings on which shall inure entirely to the
benefit of Primary Servicer. The Primary Servicer Collection Account shall be
established in the name of "Principal Capital Management, LLC, as Primary
Servicer for Wells Fargo National Association, as Master Servicer for LaSalle
Bank, National Association, as Trustee for the Holders of Morgan Stanley Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-LIFE1."
"PRIMARY SERVICER DEFAULT": As defined in Section 6.1 hereof.
"PRIMARY SERVICER ERRORS AND OMISSIONS INSURANCE POLICY": As defined in
Section 5.5(a) hereof.
"PRIMARY SERVICER FIDELITY BOND": As defined in Section 5.5(a) hereof.
"PRIMARY SERVICER SERVICING DOCUMENTS": means (a) a copy of the documents
contained in the Mortgage File for the Mortgage Loans and (b) all other
servicing documents and records in possession of Primary Servicer that relate to
or are used for the servicing of the Mortgage Loans and that are not required to
be part of the applicable Mortgage File.
"PRIMARY SERVICING FEE": For each calendar month, as to each Mortgage Loan,
the portion of the Primary Servicing Fee Rate applicable to such month
(determined in the same manner as the applicable Mortgage Rate is determined for
such Mortgage Loan for such month) multiplied by the Scheduled Principal Balance
of each Mortgage Loan immediately before the Due Date occurring in such month,
but prorated for the number of days during the calendar month for such Mortgage
Loan for which interest actually accrues on the Mortgage Loan and only from
collections on such Mortgage Loan.
"PRIMARY SERVICING FEE RATE": A rate of 0.01% per annum with respect to
each Mortgage Loan.
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"PRIMARY SERVICING TERMINATION DATE": As defined in Section 6.2 hereof.
"PROPERTY INSPECTION DESCRIPTION": The description of the obligations of
the Primary Servicer with respect to inspection of the Mortgaged Properties for
each of the Mortgage Loans as more particularly described in Section 2.1(d)
below and Exhibit B-3.
"REQUIREMENTS LIST": As defined in the Post Closing Matters Description in
Exhibit B-2.
"SERVICES": Those activities to be provided by the Primary Servicer for the
Servicing of the Mortgage Loans pursuant to the provisions of this Agreement.
"SERVICING": With respect to any Mortgage Loan, the right and obligation of
the Primary Servicer to administer such Mortgage Loan in accordance with the
provisions hereof.
"SERVICING DOCUMENTS": means the Master Servicer Servicing Documents and
Primary Servicer Servicing Documents.
"SERVICING OFFICER": Any officer or employee of the Primary Servicer
involved in, or responsible for, the administration and servicing of the
Mortgage Loans whose name and specimen signature appear on a list of servicing
officers or employees furnished to the Master Servicer by the Primary Servicer
and signed by an officer of the Primary Servicer, as such list may from time to
time be amended.
"SPECIAL SERVICER": Wells Fargo Bank, National Association or any successor
thereto as special servicer under the Pooling and Servicing Agreement.
"SERVICING STANDARD": That standard that is the higher of:
(a) the customary and usual standards of practice of prudent institutional
mortgage loan servicers servicing mortgage loans comparable to the Mortgage
Loans for third parties in the jurisdiction in which the Mortgaged Properties
are located, giving due regard to the maximization of the net present value of
the Mortgage Loans and
(b) the standards of practice utilized by the Primary Servicer with respect
to mortgage loans comparable to the Mortgage Loans that the Primary Servicer
owns and services for its own account, giving due regard to the maximization of
the net present value of the Mortgage Loans;
but in any case without regard to:
(1) any relationship that the Primary Servicer or any affiliate of the
Primary Servicer may have with the related Mortgagor;
(2) the ownership of any Certificate by the Primary Servicer or any
affiliate thereof;
(3) the ownership of any Junior Indebtedness by the Primary Servicer
or any affiliate thereof with respect to the Mortgaged Property securing
any Mortgage Loan; or
(4) the Primary Servicer's right to receive compensation for its
services hereunder or with respect to any particular transaction;
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provided, however, that in no event shall such standards be less than the
Servicing Standard set forth in the Pooling and Servicing Agreement to the
extent that the Servicing Standard in the Pooling and Servicing Agreement is
applicable to the Services being rendered pursuant to this Agreement.
"SUCCESSOR PRIMARY SERVICER": The Person selected by the Master Servicer
upon the termination of the Primary Servicer resulting from any Primary Servicer
Default, if any, who shall thereafter perform the Services with respect to the
Mortgage Loans; provided, that the Master Servicer shall perform all Services
with respect to the Mortgage Loan until such Person, if any, is selected.
"TASK DESCRIPTION": The outline description of the obligations of the
Primary Servicer, and Master Servicer with respect to the Mortgage Loans as set
forth in Exhibit B-4 attached to this Agreement.
"TRUSTEE": LaSalle Bank National Association or any successor thereto as
trustee under the Pooling and Servicing Agreement.
ARTICLE II
PRIMARY SERVICING
SECTION 2.1 PRIMARY SERVICING. From the Closing Date until the Primary
Servicing Termination Date, Master Servicer hereby authorizes and directs
Primary Servicer to service each Mortgage Loan as primary servicer on behalf of
and at the direction of the Master Servicer as provided in this Agreement. The
Services shall consist of the following:
(a) Primary Servicer shall perform all tasks and responsibilities
necessary to meet the requirements under the Task Description, the Post
Closing Matters Description, Payment and Collection Description and the
Payment and Mortgage Loan Status Reports, in each case in accordance with
the terms of this Agreement and in a manner not inconsistent with the
Pooling and Servicing Agreement. Primary Servicer shall also perform the
Master Servicer's obligations set forth in Sections 2.1(c) and 2.1(d) of
the Pooling and Servicing Agreements with respect to the Mortgage Loans.
(b) Master Servicer and Primary Servicer agree and acknowledge that
the Task Description is a chart that enumerates a list of tasks and the
general allocation of responsibility of servicing obligations between the
Master Servicer and the Primary Servicer for such tasks, and the Post
Closing Matters Description sets forth a specific method for classifying
post closing requests of a Mortgagor and allocating responsibility for
handling such requests based upon such classification. Master Servicer and
Primary Servicer have made efforts to reconcile the Task Description and
Post Closing Matters Description.
(c) Without limiting the foregoing, Primary Servicer shall collect and
remit payments on the Mortgage Loans in accordance with the Payment and
Collection Description. For the purposes of this Agreement, the "Payment
and Collection Description" shall encompass all of the following
responsibilities and obligations set forth in the following subsections
(i) through (viii):
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(i) On or prior to the date on which the Primary Servicer is required
to deposit funds, the Primary Servicer shall establish a Primary Servicer
Collection Account, which shall be an Eligible Account, and shall give the
Master Servicer prior written notice of the name and address of the
depository institution at which such Primary Servicer Collection Account
is maintained, and the number of the Primary Servicer Collection Account.
(ii) The Primary Servicer shall make efforts consistent with the
Servicing Standard to collect all monthly payments of principal (including
without limitation Principal Prepayments and Prepayment Premiums) and
interest with respect to the Mortgage Loans (except for payments due on or
prior to the Cut-Off Date), as well as late charges, Insurance Proceeds,
Condemnation Proceeds and any and all other amounts due from the Mortgagor
or a third party with respect to the Mortgage Loans pursuant to the Loan
Documents (other than any payments that are made directly to a Person other
than the Primary Servicer).
(iii) In the case of any payments received by the Primary Servicer,
the Primary Servicer shall deposit all such payments (less the applicable
Aggregate Servicing Fee and any other payments due to Primary Servicer
under this Agreement) into the Primary Servicer Collection Account on or
before the next Business Day after receiving each such payment.
(iv) Subject to the previous subsection, the Primary Servicer shall
remit to the Master Servicer from the Primary Servicer Collection Account,
by wire transfer of immediately available funds, all funds in such account
(other than income and earnings on such account), and shall not withdraw
funds therefrom for any other purpose, except to withdraw amounts deposited
therein by error, as follows: (1) In the case of any payments received and
collected during a Collection Period on or before the day which is one day
prior to the Determination Date for such Collection Period, Primary
Servicer shall remit such payments one day prior to the Determination Date,
or, if such day is not a Business Day, on the next preceding Business Day.
(2) In the case of any payments received and collected by Primary Servicer
after the day which is one day prior to the Determination Date for such
Collection Period, Primary Servicer shall remit all such payments on the
first Business Day following collection of the amount of any such payments,
except that any Scheduled Payment received and collected for a Due Date
that occurs after the then current month shall be remitted to Master
Servicer in the month in which such Due Date occurs in accordance with the
terms of Sections 2.1(c)(iii) and (iv). Notwithstanding the foregoing, any
unscheduled payments or Balloon Payments that would cause a Prepayment
Interest Shortfall shall be remitted to the Master Servicer within one (1)
Business Day of receipt.
(v) In the event any payments received by Primary Servicer becomes
NSF after the moneys associated with that payment have been remitted to the
Master Servicer, the Master Servicer will return such moneys to Primary
Servicer by wire transfer in immediately available funds within one
Business Day of notice from the Primary Servicer.
(vi) With respect to escrow or reserve payments as listed on the Task
Description, the Primary Servicer shall collect escrow or reserve amounts
with respect to the Mortgage Loans, and shall deposit such funds in an
escrow account, which shall be an Eligible Account, and shall maintain,
disburse and account for such funds as provided in the Task Description,
for real estate taxes, insurance and reserves, and escrows for repairs,
replacements, principal and interest payments and lease payments, and any
other matters
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specified in any agreement in which funds are held at the time, and in the
manner and for the purposes as otherwise required or delineated in the Loan
Documents and with respect to the Master Servicer under the Pooling and
Servicing Agreement. The Primary Servicer may direct the investment of such
funds subject to and in accordance with the criteria set forth in the
Pooling and Servicing Agreement relating to Escrow Accounts. Primary
Servicer shall have the benefit and shall retain all interest and income
earned on the Escrow Accounts for the Mortgage Loans that is not paid to
Mortgagors.
(vii) Primary Servicer shall submit the following Payment and Mortgage
Loan Status Reports in the form attached as Exhibit B-1: (1) a remittance
report for payments received on Mortgage Loans by electronic mail on each
day that payment funds are wired to the Master Servicer in accordance with
Section 2.1(c) of this Agreement; (2) a delinquency report; (3) a real
estate tax monitoring report; (4) an insurance monitoring report; (5) a
UCC form monitoring report; and (6) the Day One Report. If the day that
any such report is due is not a Business Day, then such report shall be due
on the next Business Day thereafter. Primary Servicer shall submit the
Payment and Mortgage Loan Status Report numbered (2) by electronic mail,
monthly no later than the tenth (10th) day of each month for the previous
month. Primary Servicer shall submit the Payment and Mortgage Loan
Status Reports numbered (3), (4) and (5) by electronic mail, quarterly no
later than April 15, July 15, October 15 and January 15 for the previous
quarter. Primary Servicer shall submit the Payment and Mortgage Loan Status
Report numbered (6) by electronic mail, monthly no later than the first
(1st) day of each month in which the applicable Distribution Date occurs
for the then current Collection Period.
(viii) Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description, the Payment and Collection Description and
Payment and Collection and Reports. In the event of any conflict between
(1) the Task Description and (2) the Payment and Collection Description and
Payment and Mortgage Loan Status Reports, then the Payment and Collection
Description and Payment and Mortgage Loan Status Reports shall govern.
(d) Commencing in the year 2000, Primary Servicer shall inspect, or cause
to be inspected, each of the Mortgaged Properties for the Mortgage Loans in
accordance with Section 8.17 of the Pooling and Servicing Agreement and,
promptly upon completion of such inspection, shall deliver to Master Servicer a
property inspection report in the form attached as Exhibit B-3 ("Property
Inspection Description").
Master Servicer and Primary Servicer have made efforts to reconcile the
Task Description, and the Property Inspection Description. In the event of any
conflict between (1) the Task Description and (2) the Property Inspection
Description, then the Property Inspection Description shall govern
(e) Primary Servicer shall promptly notify the Master Servicer of any
significant events affecting the Mortgage Loans which become known to Primary
Servicer, the related Mortgagor or related Mortgaged Property, such as a payment
default, a bankruptcy, a judicial lien or casualty event, and the Primary
Servicer shall also promptly advise the Master Servicer of all material
collection and customer service issues and, if requested, shall furnish the
Master Servicer with copies of any correspondence or other documents in the
possession of the Primary Servicer related to any such matter.
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(f) Primary Servicer shall perform all other obligations of the Primary
Servicer as set forth herein.
Primary Servicer and the Master Servicer agree that, in connection with the
performance of its obligations hereunder, the Primary Servicer shall be entitled
to request from the Master Servicer, and the Master Servicer agrees that it
shall provide, express instructions for the completion of any of the Services to
be performed or completed by the Primary Servicer, to the extent necessary to
clarify any ambiguities in the terms of this Agreement. The Master Servicer
further agrees that the Primary Servicer shall be entitled to rely upon any such
written instructions. The Primary Servicer and the Master Servicer,
respectively, shall perform all of their respective obligations as allocated and
set forth in this Agreement, and it is understood that the Primary Servicer
shall have no obligations with respect to the primary servicing of the Mortgage
Loans, except as specifically set forth in this Agreement.
SECTION 2.2 STANDARD OF CARE. The Primary Servicer shall perform all
Services on behalf of the Master Servicer in accordance with the terms of this
Agreement and with the Servicing Standard, and in a manner consistent with the
applicable provisions of the Pooling and Servicing Agreement.
SECTION 2.3 COMPENSATION AND OTHER PAYMENTS TO THE PRIMARY SERVICER. As
consideration for the Primary Servicer's performance of the Services hereunder,
the Primary Servicer shall be entitled to deduct the Aggregate Servicing Fee in
accordance with Section 2.1(c)(iii) of this Agreement, with respect to the
related Collection Period for each Mortgage Loan, and with respect to each such
Mortgage Loan for which a payment was received by the Master Servicer or
forwarded to the Master Servicer by the Primary Servicer. Notwithstanding the
foregoing, Primary Servicer shall not be entitled to a Primary Servicing Fee
with respect to any Mortgage Loan for which a Servicing Transfer Event has
occurred unless such Mortgage Loan becomes a Rehabilitated Mortgage Loan or with
respect to which the Primary Servicer has been terminated as Primary Servicer
under this Agreement and the Pooling and Servicing Agreement.
Primary Servicer shall retain all rights to the Excess Servicing Fee for
all Mortgage Loans, even if (a) any Mortgage Loan or Mortgage Loans become
Specially Serviced Mortgage Loans; (b) Primary Servicer's servicing is
terminated with respect to particular Mortgage Loans or (c) Primary Servicer is
in default, is terminated or resigns under this Agreement. If Primary Servicer
is unable to deduct the Excess Servicing Fee in accordance with Section
2.1(c)(iii) because it no longer services a Mortgage Loan or Mortgage Loans or
for any other reason (other than transfer or assignment of the rights to the
Excess Servicing Fee), then Master Servicer (and any successor) shall cause the
Excess Servicing Fee to be paid on the Mortgage Loans to Primary Servicer
monthly in accordance with the terms of the Pooling and Servicing Agreement.
Primary Servicer shall have the benefit and shall retain all interest and
income earned on the Primary Servicer Collection Account for the Mortgage Loans.
If Primary Servicer is terminated under this Agreement, it shall be entitled to
collect all such interest and income that accrues through the date of
termination. If a Mortgage Loan becomes a Specially Serviced Mortgage Loan,
Primary Servicer shall be entitled to collect all such interest and income that
accrues through the date of the applicable Servicing Transfer Event. The right
to retain such interest and income shall resume if such Mortgage Loan becomes a
Rehabilitated Mortgage Loan.
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The Primary Servicer shall also be entitled to retain the fees or portions
of fees set forth in the Post Closing Matters Description. Except as
specifically provided in this Agreement, the Primary Servicer shall not be
entitled to receive any default interest or late fees collected from the
Borrower, and the Primary Servicer shall promptly, upon collection of such
amounts, forward such interest and fees to the Master Servicer in accordance
with the Payment and Collection Description. Primary Servicer may waive the
right to collect a fee or portion of a fee to which it is entitled under this
Agreement but may not waive or otherwise affect the rights of other parties to
any other fees or portions of fees to which Primary Servicer is not entitled.
The Primary Servicer shall be required to pay out of its own funds, without
reimbursement, all overhead and general and administrative expenses incurred by
it in connection with its servicing activities hereunder, including costs for
office space, office equipment, supplies and related expenses, employee salaries
and related expenses and similar internal costs and expenses, and Primary
Servicer shall be required to pay all expenses that it incurs in the
administration of this Agreement (but not those incurred at the direction or
request of Master Servicer or a third party which direction or request requires
the performance of a task or obligation not contemplated of Primary Servicer
under this Agreement) and shall not be entitled to reimbursement of such costs
and expenses, except (1) as may be specifically provided in this Agreement or
(2) to the extent expenses are reimbursable by a Mortgagor under the applicable
Loan Documents.
SECTION 2.4 PRIMARY SERVICER REPRESENTATIONS AND WARRANTIES. The Primary
Servicer hereby makes for the benefit of the Master Servicer the same
representations and warranties as are made by the Master Servicer under Section
8.20 of the Pooling and Servicing Agreement; provided, however, that (a)
references therein to the Master Servicer shall be deemed references to the
Primary Servicer and references to the Trustee shall be deemed references to the
Master Servicer, (b) the Primary Servicer is duly organized, validly existing
and in good standing as a limited liability company under the laws of the
jurisdiction of its organization. Primary Servicer further represents that since
origination of the each Mortgage Loan, Primary Servicer has serviced each of the
Mortgage Loans in accordance with its terms.
ARTICLE III
DOCUMENTS AND OTHER MATTERS
SECTION 3.1 SEGREGATION OF MORTGAGE LOAN DOCUMENTS. The Primary Servicer
shall segregate the Primary Servicer Servicing Documents related to the Mortgage
Loans from all other assets of the Primary Servicer and, upon request, forward
to the Master Servicer copies of such documents or originals of such documents
if in the possession of Primary Servicer and not part of the Mortgage File
forwarded to the Trustee.
SECTION 3.2 ACCESS TO DOCUMENTS; PROVISION OF CERTAIN INFORMATION. The
Primary Servicer shall make available to the Master Servicer or any Successor
Primary Servicer, at a reasonable time, such information as the Master Servicer
or such Successor Primary Servicer shall reasonably request in writing and shall
make available to the Master Servicer or any Successor Primary Servicer or
Persons designated by the Master Servicer or such Successor Primary Servicer
such documents as the Master Servicer shall reasonably request in writing. The
Master Servicer shall make available to the Primary Servicer, at a reasonable
time, such information as the Primary Servicer shall reasonably request in
writing in connection with the performance of the Services and, subject to the
terms and conditions of Section 8.15 of the Pooling and Servicing Agreement,
shall make available to the Primary Servicer or
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Persons designated by the Primary Servicer such documents related to the
Mortgage Loans and the Servicing of the Mortgage Loans as the Primary Servicer
shall reasonably request in writing.
ARTICLE IV
MASTER SERVICER ASSISTANCE
SECTION 4.1 MASTER SERVICER ASSISTANCE.
(a) The Master Servicer shall make reasonable efforts to do any and all
things reasonably requested by the Primary Servicer to enable the Primary
Servicer to render the Services, including, without limitation, delivering to
the Trustee any receipts or other documentation that the Trustee may require to
allow it to release any Mortgage Files or documents contained therein or
acquired in respect thereof requested by the Primary Servicer. The Primary
Servicer shall do any and all things reasonably requested by the Master Servicer
to enable the Master Servicer to comply with its obligations under the Pooling
and Servicing Agreement. Before the Master Servicer releases all or any portion
of any Mortgage File or document contained therein or acquired in respect
thereof to the Primary Servicer, the Master Servicer may require the Primary
Servicer to execute a receipt therefor or, in the event of a Mortgage Loan that
has been repaid in full, a certificate with respect to the payment in full of
the related Mortgage Loan.
(b) If required in connection with the provision of the Services, the
Master Servicer shall furnish, or cause to be furnished, to the Primary
Servicer, upon request, any powers of attorney of the Master Servicer or the
Trustee, empowering the Primary Servicer to take such actions as it determines
to be reasonably necessary to comply with its Servicing duties hereunder or to
enable the Primary Servicer to service and administer such Mortgage Loans and
carry out its duties hereunder, in each case in accordance with the Servicing
Standard and the terms of this Agreement. The Primary Servicer hereby agrees to
indemnify the Master Servicer and the Trustee from any loss, damage, expense or
claim relating to misuse or wrongful use of any such power-of-attorney.
SECTION 4.2 SPECIALLY SERVICED MORTGAGE LOANS. The Primary Servicer shall
promptly notify the Master Servicer and Special Servicer with respect to
Specially Serviced Mortgage Loans of any questions, complaints, legal notices,
or other communications relating to the foreclosure or default of a Mortgage
Loan that are received by the Primary Servicer and with respect to such Mortgage
Loan such other matters as would, consistent with the Servicing Standard,
require notification to the owner or the servicer of the Mortgage Loan. The
Master Servicer shall promptly notify the Primary Servicer with respect to any
Specially Serviced Mortgage Loan that becomes a Rehabilitated Mortgage Loan and
shall provide Primary Servicer with all relevant documents received during the
time that the relevant Mortgage Loan was a Specially Serviced Mortgage Loan.
ARTICLE V
ADDITIONAL PRIMARY SERVICER COVENANTS
SECTION 5.1 NOTICE OF LITIGATION. With respect to any Mortgage Loan as to
which litigation is instituted, the Primary Servicer, if aware of such
litigation, shall notify the Master Servicer immediately as to the status of the
litigation related to such Mortgage Loan and shall, when reasonably required or
requested by the Master Servicer, provide to the Master Servicer copies of all
pertinent
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information in the Primary Servicer's possession related to such litigation,
including, without limitation, copies of related Servicing
Documents.
SECTION 5.2 NO PERSONAL SOLICITATION. The Primary Servicer hereby agrees
that it will not knowingly take any action or cause any action to be taken by
any of its agents or affiliates, or independent contractors or working on its
behalf, to personally, by telephone or mail, solicit the prepayment of any
Mortgage Loan by any Borrower. Primary Servicer agrees not to forward to any
Mortgagor or other obligors under a Mortgage Loan, any correspondence or
documents between Master Servicer and Primary Servicer regarding a Post Closing
Request (except the Requirements List (as defined in Exhibit B-2(c)) without the
consent of the Master Servicer or Special Servicer (acting in its sole
discretion), unless required by law.
SECTION 5.3 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE. The Primary
Servicer shall deliver to the Master Servicer on or before March 15 of each
year, commencing with March 15, 2000, an Officer's Certificate certifying that,
with respect to the period ending on the preceding December 31, (i) such
Servicing Officer has reviewed the activities of the Primary Servicer during the
preceding calendar year or portion thereof and its performance under this
Agreement has been made under such officer's supervision and (ii) to the best of
such Servicing Officer's knowledge, based on such review, the Primary Servicer
has performed and fulfilled its duties, responsibilities and obligations under
this Agreement in all material respects throughout such year, or, if there has
been a default in the fulfillment of any such duties, responsibilities or
obligations, specifying each such default known to such Servicing Officer and
the nature and status thereof.
SECTION 5.4 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. On or before
April 1 of the year, commencing with April 1, 2000, the Primary Servicer at its
own expense shall cause a firm of independent public accountants (who may also
render other services to the Primary Servicer) which is a member of the American
Institute of Certified Public Accountants to furnish a statement to the Master
Servicer to the effect that such firm has examined certain records and documents
relating to the Primary Servicer's performance of its servicing obligations
under this Agreement in accordance with the requirements of the Uniform Single
Attestation Program for Mortgage Bankers, and in each case stating such firm's
conclusions relating thereto.
SECTION 5.5 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY.
(a) The Primary Servicer, at its own expense, shall maintain in effect a
fidelity bond (the "Primary Servicer Fidelity Bond") and an errors and omissions
policy (the "Primary Servicer Errors and Omissions Insurance Policy") with a
Qualified Insurer, naming the Master Servicer as loss payee, affording coverage
for all directors, officers and employees. The Primary Servicer Errors and
Omissions Insurance Policy and Primary Servicer Fidelity Bond shall be in such
form and amount that would satisfy the requirements for such policies as the
Master Servicer must satisfy as set forth in Section 8.2 of the Pooling and
Servicing Agreement. Notwithstanding any other provisions of this Agreement, the
Primary Servicer shall be permitted to self-insure with respect to its
obligations to maintain the Primary Servicer Fidelity Bond and a Primary
Servicer Errors and Omissions Policy to the extent the Master Servicer is
permitted under Section 8.2 of the Pooling and Servicing Agreement. The Primary
Servicer shall furnish to the Master Servicer, not later than thirty (30) days
after the Closing Date, evidence of the Primary Servicer's compliance with this
Section 5.5(a).
(b) The Primary Servicer shall promptly report in writing to the Master
Servicer any material adverse changes that may occur in the Primary Servicer
Fidelity Bond or the Primary Servicer
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Errors and Omissions Insurance Policy and shall furnish to the Master Servicer
upon written request copies of all binders and policies or certificates
evidending that such bond and insurance policy are in full force and effect.
The Primary Servicer shall promptly report in writing to the Master Servicer
all cases of embezzlement or fraud or irregularities of operation relating
to the servicing of the Mortgage Loans by the Primary Servicer and its
employees, officers, directors, agents and representatives if such events
involve funds relating to the Mortgage Loans. The total of such losses,
regardless of whether claims are filed with the applicable insurer or
surety, shall be disclosed in such reports together with the amount of such
losses covered by insurance. If a bond or insurance claim report is filed with
any of the Primary Servicer's bonding companies or insurers relating to the
Mortgage Loans or the servicing thereof, a copy of such report (which report may
omit any references to individuals suspected of such embezzlement, fraud or
irregularities of operation) shall be promptly furnished to the Master Servicer.
SECTION 5.6 PRIMARY SERVICER'S FINANCIAL STATEMENTS AND RELATED
INFORMATION. The Primary Servicer shall deliver to the Master Servicer, within
120 days after the end of its fiscal year, a copy of its annual financial
statements, such financial statements to be audited if then customarily audited,
and with respect to any unaudited financial statements provided by the Primary
Servicer, which financial statements shall be certified by the Primary
Servicer's chief financial officer to be true, correct and complete. The Primary
Servicer shall notify the Master Servicer, as of the Closing Date, of the
Primary Servicer's fiscal year and shall notify the Master Servicer promptly
after any change thereof.
SECTION 5.7 NO ADVANCING. Under no circumstance shall the Primary Servicer
make or have an obligation to make any Advances.
SECTION 5.8 REMIC COMPLIANCE. The Primary Servicer shall take no action
that would impair the Master Servicer's obligations with respect to REMIC
compliance as provided in the Pooling and Servicing Agreement.
SECTION 5.9 INSPECTION RIGHTS. The Primary Servicer shall afford the Master
Servicer and the Trustee, upon reasonable notice and during normal business
hours, reasonable access to all records, information, books and documentation
regarding the applicable Mortgage Loans, and all accounts, insurance policies
and other relevant matters relating to this Agreement, and access to Servicing
Officers of the Primary Servicer responsible for its obligations hereunder.
SECTION 5.10 AUTHORIZED OFFICER. Primary Servicer shall provide Master
Servicer promptly with a written list of authorized Servicing Officers of
Primary Servicer, which may be amended from time to time by written notice from
Primary Servicer to Master Servicer; provided, however, that such list shall
denote one principal Servicing Officer responsible for the Primary Servicer's
obligations under this Agreement.
SECTION 5.11 YEAR 2000 COMPLIANCE. Primary Servicer covenants that by
August 31, 1999, any custom-made software or hardware designed or purchased or
licensed by Primary Servicer and used by Primary Servicer in the course of
operation or management of, or the compiling, reporting or generation of data
required by this Agreement, will not contain any deficiency (x) in the ability
of such software or hardware to identify correctly or perform calculations or
other processing with respect to dates after August 31, 1999; or (y) that would
cause such software to be no longer fit for the purpose for which it was
intended by reason of the changing of the year from 1999 to 2000.
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SECTION 5.12 ADDITIONAL REPORTS. Primary Servicer shall produce such
additional written reports with respect to the Mortgage Loans as the Master
Servicer may from time to time reasonably request in accordance with the
Servicing Standard.
SECTION 5.13. PREPAYMENTS. For any Mortgage Loan, Primary Servicer shall
require Principal Prepayments to be made so as not to cause a Prepayment
Interest Shortfall. If the Loan Documents of a related Mortgage Loan do not
allow Primary Servicer to require Principal Prepayments on a date that will
avoid a Prepayment Interest Shortfall ("Non-Mandatory Prepayment Date Mortgage
Loan"), then Primary Servicer shall remit to Master Servicer on the date
specified in Section 2.1(c)(iv) of this Agreement in addition to all other
amounts due for such Principal Prepayment, the amount of any Prepayment Interest
Shortfall that results from such Principal Prepayment; provided, however, that
(a) Primary Servicer shall be entitled to keep any Prepayment Interest Excess
that results from a Principal Prepayment made on a Non-Mandatory Prepayment Date
Mortgage Loan and (b) Primary Servicer shall in no event be required to remit an
amount greater than the amount of the Primary Servicing Fee for such Collection
Period.
SECTION 5.14. CONSENTS. Primary Servicer shall (a) obtain the consent of
the Special Servicer with respect to assignments and assumptions of Mortgage
Loans in accordance and subject to the terms of Section A.1.(c)(ii) of Exhibit
B-2(c) of this Agreement; (b) obtain the consent of the Master Servicer with
respect to the defeasance of Mortgage Loans in accordance and subject to the
terms of Section A.1.(c)(i) of Exhibit B-2(c) of this Agreement; and (c) notify
Master Servicer of any Category 1 Consent Aspect in any Category 1 Request,
which shall then be subject to Master Servicer's Materiality Determination and
thereafter handled in accordance with Sections A.1.(a) and (c)(iii) of Exhibit
B-2(c) of this Agreement.
ARTICLE VI
PRIMARY SERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
SECTION 6.1 PRIMARY SERVICER DEFAULT. Each of the following events shall
constitute a "Primary Servicer Default" hereunder:
(i) any failure by the Primary Servicer to remit to
the Master Servicer when due any amount required to be remitted under
this Agreement; or
(ii) any failure by the Primary Servicer duly to
observe or perform in any material respect any of the covenants or
agreements on the part of the Primary Servicer contained in this
Agreement, which failure continues unremedied for a period of thirty
(30) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Primary
Servicer by the Master Servicer; provided, however, that to the extent
the Master Servicer determines, in its reasonable discretion, that the
Primary Servicer is in good faith attempting to remedy such failure and
the Certificateholders shall not be materially and adversely affected
thereby, such cure period may be extended to the extent necessary to
permit the Primary Servicer to cure such failure; provided, further,
that such cure period may not exceed sixty (60) days; and; provided,
further that if such failure to perform on the part of the Primary
Servicer results in an Event of Default by the Master Servicer under
the Pooling and Servicing Agreement, then the cure periods described in
this Section 6.1(ii) shall not apply; or
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(iii) any breach of the representations and
warranties made pursuant to Section 2.4 hereof that materially and
adversely affects the interest of the Master Servicer and that
continues unremedied for a period of 30 days after the date on which
written notice of such breach, requiring the same to be remedied, shall
have been given by the Master Servicer to Primary Servicer; provided,
however, that to the extent the Master Servicer determines in its
reasonable discretion that the Primary Servicer is in good faith
attempting to remedy such breach and the Certificateholders shall not
be materially and adversely affected thereby, such cure period may be
extended to the extent necessary to permit the Primary Servicer to cure
such breach; provided, however, that such cure period may not exceed
sixty (60) days; and provided, further, that if such failure to perform
on the part of the Primary Servicer results in an Event of Default (or
an event that with notice or the passage of time would constitute such
an Event of Default) by the Master Servicer under the Pooling and
Servicing Agreement, then the cure periods described in this Section
6.1(iii) shall not apply; or
(iv) any Rating Agency shall qualify, lower or
withdraw the outstanding rating of any Class of Certificates because
the prospective financial condition or mortgage loan servicing capacity
of the Primary Servicer is insufficient to maintain such rating; or
(v) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law for the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Primary
Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(vi) the Primary Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings or of or
relating to all or substantially all of its property; or
(vii) the Primary Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(viii) any other event caused by the Primary Servicer
which creates an Event of Default (or an event that with notice or the
passage time would constitute such an Event of Default) of the Master
Servicer under the Pooling and Servicing Agreement.
Primary Servicer agrees to give prompt written notice
to Master Servicer upon the occurrence of any Primary Servicer Default.
SECTION 6.2 TERMINATION.
(a) The obligations and responsibilities of the Primary
Servicer as created hereby (other than as expressly provided herein) shall
terminate upon the earliest to occur of (i) the receipt by the Primary Servicer
of the Master Servicer's written notice of such termination delivered at the
Master
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Servicer's option following the occurrence of a Primary Servicer Default,
and (ii) the final payment or other liquidation of the last Mortgage Loan
remaining outstanding (the "Primary Servicing Termination Date"). From and after
the Primary Servicing Termination Date, the Primary Servicer shall, if
applicable, continue to cooperate in the transfer of primary servicing,
including the delivery of files and transfer of accounts as contemplated hereby
but shall have no further obligations under this Agreement.
Without limiting the foregoing, the Primary Servicer agrees that the rights
and duties of the Master Servicer under this Agreement and the Pooling and
Servicing Agreement may be assumed by a successor Master Servicer or the Trustee
upon a termination of the Master Servicer's servicing rights pursuant to the
Pooling and Servicing Agreement.
Primary Servicer's rights and obligations shall expressly survive a
termination of Master Servicer's servicing rights pursuant to the Pooling and
Servicing Agreement (except a termination of Master Servicer caused by a Primary
Servicer Default). In the event of such a termination, any successor Master
Servicer or the Trustee (if it assumes the servicing obligations of the Master
Servicer) shall be deemed to automatically have assumed and agreed to this
Agreement without further action upon becoming the successor Master Servicer.
Upon the request of Primary Servicer, Master Servicer shall confirm to
Primary Servicer in writing that this Agreement remains in full force and
effect. Upon the request of Primary Servicer, the successor Master Servicer or
Trustee, as applicable, shall confirm to Primary Servicer in writing that this
Agreement remains in full force and effect. Upon the request of the successor
Master Servicer or Trustee, Primary Servicer shall confirm to the successor
Master Servicer or Trustee, as applicable, in writing that this Agreement
remains in full force and effect.
(b) The Master Servicer's reimbursement obligations to the Primary Servicer
hereunder shall survive the Primary Servicing Termination Date, but only to the
extent such reimbursement relates to a period prior to the termination of all of
the Primary Servicer's obligations hereunder.
(c) The rights of Master Servicer to terminate Primary Servicer upon the
occurrence of a Primary Servicer Default shall be in addition to any other
rights Master Servicer may have at law or in equity, including injunctive relief
or specific performance.
SECTION 6.3 POST-TERMINATION OBLIGATIONS.
(a) In the event of a termination of primary servicing due to Primary
Servicer Default, the Primary Servicer shall promptly deliver the Servicing
Documents as directed by the Master Servicer and remit to the Master Servicer,
by wire transfer of immediately available funds, all cash held by the Primary
Servicer with respect to the related Mortgage Loans, and shall, if so requested
by the Master Servicer, assign to the Master Servicer or a Successor Primary
Servicer, as directed by the Master Servicer, and in such event the Master
Servicer shall assume, or cause the Successor Primary Servicer to assume, all
service contracts related to the Mortgage Loans transferred thereon but only to
the extent such contracts are assignable and the required consents (if any) to
such assignments have been obtained. The Primary Servicer shall use all
reasonable efforts to obtain the consents required to effect such assignments.
(b) On and after the Primary Servicing Termination Date, the Primary
Servicer shall promptly endorse and send to the Master Servicer via overnight
mail or delivery service any checks or other funds in respect of any Mortgage
Loan which are received by the Primary Servicer.
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(c) The Primary Servicer shall provide to the Master Servicer promptly (but
in no event later than ten (10) Business Days) after the Primary Servicing
Termination Date the following information, in each case as of such date: (a) a
ledger accounting itemizing the dates and amounts of all payments made, received
or applied by the Primary Servicer with regard to each Mortgage Loan, further
itemizing principal and interest payments, tax payments, special assessments,
hazard insurance, mortgage insurance premiums, ground rents, if any, and all
other payments and (b) a current trial balance for each such Mortgage Loan.
(d) On a date to be agreed upon by the Primary Servicer and the Master
Servicer, but not later than the Business Day following the Primary Servicing
Termination Date, the Primary Servicer shall commence and continue diligently to
completion at its own expense, to notify Mortgagors under the related Mortgage
Loans of the address to which payments on such Mortgage Loans should be sent
after the Primary Servicing Termination Date; provided, however, that in any
event, Primary Servicer shall be obligated to notify Mortgagors within seven (7)
Business Days of the Primary Servicing Termination Date.
(e) The Primary Servicer shall promptly forward to the Master Servicer, at
the Primary Servicer's expense all Mortgagor correspondence, insurance notices,
tax bills or any other correspondence or documentation related to any Mortgage
Loan which is received by the Primary Servicer after the Primary Servicing
Termination Date.
(f) Primary Servicer shall be entitled to all fees, compensation, interest
and earnings on the Mortgage Loans accrued through the date of termination of
its obligations and rights under this Agreement; provided, however, Primary
Servicer shall continue to collect the Excess Servicing Fee after termination in
accordance with the terms of this Agreement and the Pooling and Servicing
Agreement.
SECTION 6.4 ADDITIONAL TERMINATION.
Notwithstanding any provision herein to the contrary, this Agreement shall
terminate with respect to any individual Mortgage Loan (i) if and when such
Mortgage Loan becomes a Specially Serviced Mortgage Loan or an REO Mortgage Loan
or (ii) if and when such Mortgage Loan is sold or otherwise disposed of by or on
behalf of the Trust (which sale or disposition shall not include the
transformation of a Mortgage Loan into a Defeasance Loan). In the event of such
termination, the Primary Servicer shall comply with Section 6.3 as if a Primary
Servicer Default had occurred, except that such Section shall be construed to
relate only to such Mortgage Loan and references therein to Primary Servicing
Termination Date shall be construed to mean the date of such termination, and
(ii) the Primary Servicer shall cooperate in the orderly transfer of the
servicing of such Mortgage Loan and shall forward to the Master Servicer such
documents as it may receive from time to time with respect thereto and provide
such other assistance as may reasonably be required by the Master Servicer with
respect thereto. Primary Servicer shall be entitled to all fees, compensation,
interest and earnings on such Mortgage Loan accrued through the date of
termination of its obligations and rights with respect to such Mortgage Loan
under this Agreement; provided, however, Primary Servicer shall continue to
collect the Excess Servicing Fee after termination in accordance with the terms
of this Agreement and the Pooling and Servicing Agreement. If such Mortgage Loan
subsequently becomes a Rehabilitated Mortgage Loan, then, the Primary Servicer
shall promptly resume the servicing of such Mortgage Loan in accordance with the
terms hereof.
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ARTICLE VII
SUBCONTRACTORS
Upon prior notice to but without the consent of Master Servicer in the case
of material subcontracts and without prior notice to or the prior written
consent of the Master Servicer in the case of non-material subcontracts, the
Primary Servicer shall be permitted to employ, at its own expense,
subcontractors to perform the Services for the Mortgage Loans; provided,
however, that (a) the Primary Servicer shall remain fully liable at all times
for the performance of all Services and for all other obligations hereunder; and
(b) in no event shall any such subcontractors make any of the decisions, or have
any authority to make any decisions, required as part of a Category 1 Request.
ARTICLE VIII
PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER
All records relating to the Mortgage Loans held by the Primary Servicer,
including but not limited to the Primary Servicer Servicing Documents, mortgage
servicing documents, books, computer tapes and other documents and records
(except for microfilm records) as well as any reproductions or copies of such
records furnished for the purposes of performing Services from the Cut-off Date
are, and shall continue at all times to be, held by the Primary Servicer for the
benefit of the Master Servicer and shall not be released, disseminated or
otherwise made available to third parties without the prior written consent of
the Master Servicer.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 PRIMARY SERVICER'S INDEMNITY.
(a) The Primary Servicer shall indemnify the Master Servicer, its officers,
employees and agents against, and hold the Master Servicer harmless from, any
and all losses, liabilities, expenses, claims, demands, costs, or judgment of
any type against the Master Servicer arising out of or related to (i) a
negligent or willful failure of the Primary Servicer or any Person hired by the
Primary Servicer to perform properly any of the Services to be performed by the
Primary Servicer pursuant to the Payment and Collection Description, the Payment
and Mortgage Loan Status Reports, Post Closing Matters Description and Task
Description, (ii) any failure by the Primary Servicer to perform its obligations
under this Agreement, or (iii) breach of any of the Primary Servicer's
representations and warranties hereunder; provided, however, that the Primary
Servicer shall not be required to indemnify the Master Servicer, its officers,
employees or agents against or hold the Master Servicer, its officers, employees
or agents harmless from any losses to the extent that such loss is caused by the
actions of the Master Servicer, its officers, employees or agents in violation
of the Master Servicer's duties under this Agreement or under the Pooling and
Servicing Agreement (except to the extent that such failure was caused by the
Primary Servicer's failure to perform its obligations hereunder). The
indemnification provided under this Section 9.1 shall survive the Primary
Servicing Termination Date. The Master Servicer shall promptly notify the
Primary Servicer if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans entitling the Master Servicer to indemnification
hereunder. The Primary Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Master Servicer) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any
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judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Primary Servicer shall not affect any of
the Master Servicer's rights to indemnification.
(b) Neither the Primary Servicer nor any of the directors, officers,
employees or agents of the Primary Servicer shall be under any liability to the
Master Servicer, the holders of the Certificates, the Depositor, the Trustee or
any other Person for any action taken or for refraining from the taking of any
action in good faith and using its reasonable business judgment pursuant to this
Agreement, or for errors in judgment; provided that this provision shall not
protect the Primary Servicer or any such person against any breach of a
covenant, representation or warranty contained herein or any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties or by reason of reckless disregard for
its obligations and duties under this Agreement. The Primary Servicer and any
director, officer, employee or agent of the Primary Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder.
SECTION 9.2 MASTER SERVICER'S INDEMNITY. Master Servicer shall use all
reasonable efforts to obtain the benefits of the rights of indemnification in
favor of Master Servicer contained in the Pooling and Servicing Agreement on
behalf of the Primary Servicer and the Primary Servicer's agents, employees and
subcontractors and shall cause the indemnifying party to hold the Primary
Servicer and the Primary Servicer's agents, employees and subcontractors
harmless from any and all losses, liabilities, expenses, claims, demands, costs
or judgments of any type against the Primary Servicer arising out of or related
to the Primary Servicer's performance hereunder. The Primary Servicer's rights
provided under this Section 9.2 shall survive the Primary Servicing Termination
Date.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 SEVERABILITY. Each part of this Agreement is intended to be
severable. If any term, covenant, condition or provision hereof is unlawful,
invalid, or unenforceable for any reasons whatsoever, and such illegality,
invalidity, or unenforceability does not affect remaining part of this
Agreement, then all such remaining parts hereof shall be valid and enforceable
and have full force and effect as if the invalid or unenforceable part had not
been included.
SECTION 10.2 RIGHTS CUMULATIVE; WAIVERS. The rights of each of the parties
under this Agreement are cumulative and may be exercised as often as any party
considers appropriate. The rights of each of the parties hereunder shall not be
capable of being waived or amended other than by an express waiver or amendment
in writing. Any failure to exercise (or any delay in exercising) any of such
rights shall not operate as a waiver or amendment of that or any other such
right. Any defective or partial exercise of any of such right shall not preclude
any other or further exercise of that or any other such right No act or course
of conduct or negotiation on the part of any party shall in any way estop or
preclude such party from exercising any such right or constitute a suspension or
any waiver of any such right.
SECTION 10.3 HEADINGS. The headings of the Sections and Articles contained
in this Agreement are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or any provision hereof.
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SECTION 10.4 CONSTRUCTION. Unless the context otherwise requires, singular
nouns and pronouns, when used herein, shall be deemed to include the plural of
such noun or pronoun and pronouns of one gender shall be deemed to include the
equivalent pronoun of the other gender. This Agreement is the result of
arm's-length negotiations between the parties and has been reviewed by each
hereto and its counsel. Each party agrees that any ambiguity in this Agreement
shall not be interpreted against the party drafting the particular clause which
is in question.
SECTION 10.5 ASSIGNMENT. This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the undersigned
parties and their respective heirs, executors, administrators, representatives,
successors, and assigns. This Agreement and the rights and benefits hereunder of
the Primary Servicer shall not be assignable, and the duties and obligations
hereunder of such party shall not be delegable, except that in the following
instances, Primary Servicer may assign, sell or transfer its rights under this
Agreement without the consent of (but upon written notice to) the Master
Servicer:
(a) Primary Servicer may assign, sell or transfer its rights and
obligations under this Agreement to a parent company of Primary Servicer or a
wholly-owned subsidiary or affiliate of such party, or a successor by merger or
as the result of a demutualization of a parent company of Primary Servicer, as
long as such successor has net assets and net worth equal to or greater than the
net assets and net worth of the Primary Servicer.
(b) Primary Servicer may assign, sell or transfer its rights and
obligations under this Agreement to an entity that then serves as a primary
servicer for other mortgage loans held by the Trust at the time of such
assignment, sale or transfer.
(c) With the prior written consent of Master Servicer which consent shall
not be unreasonably withheld or delayed, Primary Servicer may assign, sell or
transfer its rights and obligations under this Agreement to any master or
primary servicer, if (1) such entity is rated by the Rating Agencies as
satisfactory or its equivalent in such capacity or (2) Primary Servicer at its
sole cost receives Rating Agency Confirmation from the Rating Agencies prior to
such assignment, sale or transfer.
(d) Primary Servicer may assign or subcontract certain of its rights and
obligations under this Agreement as expressly provided in and subject to the
terms of this Agreement.
Any such assignment under this Section 10.5 shall (i) not be effective
until such successor Primary Servicer enters into a written agreement reasonably
satisfactory to Master Servicer agreeing to be bound by the terms and provisions
of this Agreement (but not altering the obligations under this Agreement); and
(ii) not relieve the assigning Primary Servicer of any duties or liabilities
arising or incurred prior to such assignment. Any costs or expenses incurred in
connection with such assignment shall be payable by the assigning Primary
Servicer. Any assignment of delegation or attempted assignment or delegation in
contravention of this Agreement shall be null and void. The proceeds of any
assignment, sale or transfer permitted under this Section 10.5 or to which
consent was granted shall belong solely to the assignor of such rights, and
Master Servicer shall have no claim to them.
SECTION 10.6 RESIGNATION OF PRIMARY SERVICER.
(a) Except as otherwise provided in Section 10.6(b) hereof, the Primary
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Primary
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Servicer's duties hereunder are no longer permissible under applicable law or
are in material conflict by reason of applicable law with any other activities
carried on by it. Any such determination permitting the resignation of the
Primary Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the Master Servicer. No such resignation shall become effective
until a successor servicer designated by the Master Servicer shall have assumed
the Primary Servicer's responsibilities and obligations under this Agreement.
(b) The Primary Servicer may resign from the obligations and duties imposed
on it, upon 60 days' notice to the Master Servicer, provided that the Primary
Servicer bears all costs associated with its resignation and the transfer of
servicing.
SECTION 10.7 PRIOR UNDERSTANDINGS. This Agreement supersedes any and all
prior discussions and agreements between or among the Seller, the Primary
Servicer and the Master Servicer with respect to the Servicing of the Mortgage
Loans and the other matters contained herein. This Agreement, together with the
Pooling and Servicing Agreement, contain the sole and entire understanding
between the parties hereto with respect to the transactions contemplated herein.
Every effort shall be made to construe this Agreement and the Pooling and
Servicing Agreement consistently. If a conflict exists between such agreements,
then the Pooling and Servicing Agreement shall control. If this Agreement
requires Primary Servicer to perform a task or duty, the details and obligations
of which are (a) set forth in this Agreement and (b)(i) are not set forth in the
Pooling and Servicing Agreement or (ii) are set forth in the Pooling and
Servicing Agreement only in general terms, then Primary Servicer shall perform
such task and duties in accordance with the details and obligations set forth in
this Agreement. If this Agreement requires Primary Servicer to perform a task or
duty, the details and obligations of which are not set forth in this Agreement
but are contained in the Pooling and Servicing Agreement, then the Primary
Servicer shall perform such task and duties in accordance with the Pooling and
Servicing Agreement.
SECTION 10.8 INTEGRATED AGREEMENT. This Agreement constitutes the final
complete expression of the intent and understanding of the Primary Servicer and
the Master Servicer and may not be altered or modified except by a subsequent
writing, signed by the Primary Servicer and the Master Servicer.
SECTION 10.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument. Any
party hereto may execute this Agreement by signing any such counterpart.
SECTION 10.10 GOVERNING LAWS. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws without regard to conflicts of law principles.
SECTION 10.11 NOTICES. Unless otherwise provided for herein, all notices
and other communications required or permitted hereunder shall be in writing
(including a writing delivered by facsimile transmission) and shall be deemed to
have been duly given (a) when delivered, if sent by registered or certified mail
(return receipt requested), if delivered personally or by facsimile or (b) on
the second following Business Day, if sent by overnight mail or overnight
courier, in each case to the parties at the following addresses (or at such
other addresses as shall be specified by like notice);
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If to the Master Servicer: As set forth in Section 13.5 of the Pooling
and Servicing Agreement
If to the Primary Servicer: Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392
Attention: Patrick Hatter
Telephone No.: (515) 247-7895
Facsimile No.: (515) 248-8090
[Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-1450
Attention: Ronald B. Franklin,
Managing Director
Telephone No.: (515) 247-5579
Facsimile No.: (515) 248-8090]
SECTION 10.12 AMENDMENT. In the event that the Pooling and Servicing
Agreement is amended, this Agreement shall be deemed to have been amended and to
the extent necessary to reflect such amendment to the Pooling and Servicing
Agreement, but no such amendment to the Pooling and Servicing Agreement or
deemed amendment to this Agreement shall increase the obligations or decrease
the rights of Primary Servicer under this Agreement without its express written
consent which consent shall not be unreasonably withheld or delayed.
SECTION 10.13 OTHER. This Agreement shall not be construed to grant to any
party hereto any claim, right or interest in, to or against the trust fund
created pursuant to the Pooling and Servicing Agreement or any assets of such
trust fund.
[SIGNATURE PAGES BEGIN ON NEXT PAGE]
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IN WITNESS WHEREOF, this Agreement has been signed on behalf of each of the
parties hereto by an authorized representative, all as of the day and year first
above written.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
acting solely in its capacity as Master
Servicer under the Pooling and Servicing
Agreement
By:_____________________________________
Name:
Title:
PRINCIPAL CAPITAL MANAGEMENT, LLC
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
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SCHEDULE I
MORTGAGE LOAN SCHEDULE
<PAGE>
EXHIBIT A
POOLING AND SERVICING AGREEMENT
See copy of signed Pooling and Servicing Agreement delivered under separate
cover.
<PAGE>
EXHIBIT B
Exhibit B-1: Payment and Mortgage Loan Status Reports
Exhibit B-2: Post Closing Matters Description
Exhibit B-3: Property Inspection Reports
Exhibit B-4: Task Description
<PAGE>
EXHIBIT B-1
PAYMENT AND MORTGAGE LOAN STATUS REPORTS
Section 2.1(c)(vii) of the Agreement sets forth the types and timing of the
reports to be delivered by Primary Servicer to Master Servicer on the Mortgage
Loans as specified in this Agreement. Attached as this Exhibit B-1 are the forms
of the reports described in such section.
Exhibit B-1(a): Remittance report for payments received on Mortgage Loans
during the applicable Collection Period
Exhibit B-1(b): Delinquency report
Exhibit B-1(c): Real estate tax monitoring report
Exhibit B-1(d): Insurance monitoring report
Exhibit B-1(e): UCC form monitoring report
Exhibit B-1(f): Day One Report
Exhibit B-1
<PAGE>
EXHIBIT B-2
POST CLOSING MATTERS DESCRIPTION
Exhibit B-2(a): Overview of Methodology of Allocation of Responsibility on
Post Closing Requests
Exhibit B-2(b): Chart Showing Classification of Post Closing Requests
Exhibit B-2(c): Process for Handling Post Closing Requests Upon Classification
<PAGE>
EXHIBIT B-2(A)
POST CLOSING MATTERS DESCRIPTION
When Primary Servicer receives a request from a Mortgagor for action ("Post
Closing Request") on its related Mortgage Loan, Primary Servicer shall classify
each Post Closing Request into one of the following three (3) categories:
o Post Closing Requests over which Primary Servicer shall have decision
making authority to analyze, consent to, approve and process such
requests, subject to consent rights in certain circumstances set forth
in Exhibit B-2(c) below ("Category 1 Requests");
o Post Closing Requests in which Primary Servicer shall act as a
gatherer of information and Mortgagor's initial contact but shall
leave analysis, consent to, approval and processing of such requests
to the Master Servicer or Special Servicer, as applicable ("Category 2
Requests"); and
o Post Closing Requests in which Primary Servicer will have no
involvement but will refer the request to the Special Servicer
("Category 3 Requests").
The attached chart details how a Post Closing Request will be classified
into one of the three (3) categories specified above and the materials that
follow detail how each Post Closing Request will be handled after
classification.
The objective is to process each Post Closing Request in accordance with
the Servicing Standard, the terms of this Agreement and the Pooling and
Servicing Agreement and the REMIC Provisions, while providing responsive service
to Mortgagors.
The attached chart does not address Payment and Collection Description,
Payment and Collection Reporting or Property Inspection Description, which is
covered elsewhere in this Agreement.
Exhibit B-2
<PAGE>
EXHIBIT B-2(B)
CHART SHOWING CLASSIFICATION OF POST CLOSING REQUESTS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
CATEGORY WHEN APPLICABLE EXAMPLES ALLOCATION OF FEES
===============================================================================================================================
<S> <C> <C> <C>
1 Category Post Closing Request is Transfer rights contemplated Primary Servicer collects
1 specifically authorized in the in Loan Documents (including entire administrative or
Requests loan documents for the related without limitation assignment processing fee (including
Mortgage Loan, either outright and assumption rights); without limitation defeasance
or upon the satisfaction of partial releases contemplated fees), legal fees and
certain specified conditions in Loan Documents; evaluation out-of-pocket expenses and 50%
(including the exercise of any of alterations under of any additional fees or
specified standard of consent specified threshold; portions of fees (including
or judgment within such administer, monitor and without limitation transfer
conditions subject to the release of reserve or escrow fees) payable to Master
terms of this Agreement) amounts in accordance with Servicer under Pooling and
reserve or escrow agreements; Servicing Agreement (i.e.
process of defeasing a transfer fee). Other 50% of
Mortgage Loan and servicing such additional fees are
of Mortgage Loans that have payable to Master Servicer.
been defeased. Special Servicer would receive
any portion of fees due it
under the Pooling and
Servicing Agreement. Master
Servicer may collect its
out-of-pocket expenses which
it shall itemize in reasonable
detail.(1)
- -------------------------------------------------------------------------------------------------------------------------------
2 Category Post Closing Request (other Approval of leases above Primary Servicer entitled to
2 than Category 3 Request) is threshold specified in Loan fifty percent (50%) of
Requests not specifically authorized or Documents; consent to administrative or processing
is prohibited or not addressed easement not contemplated in fee. Master Servicer is
in the Loan Documents Loan Documents entitled to the other fifty
percent (50%) of
administrative fee.
Additional fees are payable to
Master Servicer and/or Special
Servicer as specified in
Pooling and Servicing
Agreement. Master Servicer
may collect its out-of-pocket
expenses.(1)
- -------------------------------------------------------------------------------------------------------------------------------
3 Category Post Closing Requests to Money Changes to maturity date, Primary Servicer not entitled
3 Terms, Defaulted Mortgage interest rate, principal to fee. Master Servicer or
Requests Loans or Mortgage Loans upon balance, amortization term, Special Servicer is entitled
which a Servicing Transfer payment amount or frequency; to fees as provided in the
Event has occurred. or any actions to loan in Pooling and Servicing
default. Agreement.(1)
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) No reference is made in this chart to the Aggregate Servicing Fee which
shall be collected and governed in accordance with the terms of the Sections
2.1, 2.3, 6.3 and 6.4 of this Agreement.
Exhibit B-2
<PAGE>
EXHIBIT B-2(C)
PROCESS FOR HANDLING POST CLOSING REQUESTS UPON CLASSIFICATION
A. PROCESS FOR DISPOSITION OF POST CLOSING REQUESTS ONCE CLASSIFICATION IS MADE.
Upon classification of a Post Closing Request into one of the three (3)
categories enumerated above, Primary Servicer shall process the Post Closing
Request as follows:
1. CATEGORY 1 REQUESTS:
a) If Primary Servicer classifies a Post Closing Request as a Category 1
Request, it shall promptly (but in no event more than five (5) Business Days
after receiving such request) notify Master Servicer of (a) such request; (b)
Primary Servicer's classification of the Post Closing Request as a Category 1
Request; and (c) any Category 1 Consent Aspect involved in such request.
Notwithstanding the foregoing, as a result of the monthly reconciliation of
reserve accounts that Primary Servicer provides to Master Servicer under this
Agreement, Primary Servicer shall have no obligation to notify Master Servicer
of any disbursement made from an escrow or reserve account pursuant to the terms
of such agreement governing such reserve or escrow. If such request includes a
Category 1 Consent Aspect, then Master Servicer shall make a Materiality
Determination regarding such Category 1 Consent Aspect and notify Primary
Servicer of such determination within five (5) Business Days. Failure of the
Master Servicer to notify the Primary Servicer in writing of the Materiality
Determination within five (5) Business Days following the Primary Servicer's
delivery of notice of a Category 1 Consent Aspect shall be deemed to constitute
a determination that the Category 1 Consent Aspect is not material, and Primary
Servicer may then proceed to process such Category 1 Request in accordance with
the terms of this Agreement without further consent of Master Servicer or
Special Servicer.
b) Primary Servicer shall evaluate the Category 1 Request and process
such request to meet the requirements set forth in the loan documents for the
applicable Mortgage Loan ("Loan Documents") in a manner that complies with the
terms of this Agreement and the Pooling and Servicing Agreement. Such evaluation
and processing may commence, and continue but may not be completed prior to
Primary Servicer's notice to Master Servicer of the Category 1 Request. Primary
Servicer shall draft, or cause to be drafted, all documents necessary or
appropriate to effect the Category 1 Request in accordance with the terms of the
Loan Documents, this Agreement and the Pooling and Servicing Agreement.
c) Notwithstanding the foregoing, the following additional requirements
shall apply to particular types or aspects of Category 1 Requests:
(i) If a Mortgagor requests to defease a Mortgage Loan (other than a
Specially Serviced Mortgage Loan) and the Loan Documents for such
Mortgage Loan expressly provide for a defeasance, Primary
Servicer shall treat such request as a Category 1 Request but
shall, in addition to the other provisions of this Section 1 of
Exhibit B-2(c), seek the prior written consent of Master Servicer
prior to consenting to such defeasance, which consent shall not
be withheld or delayed unreasonably when Primary Servicer submits
to Master Servicer the items set forth on Appendix 1 of this
Agreement relating to such defeasance, and any such decision of
Master Servicer shall be in accordance with the terms of the Loan
Documents and the Servicing Standard. Failure of the Master
Servicer to notify the Primary Servicer in writing of Master
Servicer's determination to grant or withhold such consent,
within five (5) Business Days following the Primary Servicer's
delivery of the request for defeasance described above and the
relevant information collected on such defeasance, shall be
deemed to constitute a grant of such consent.
Exhibit B-2
<PAGE>
(ii) If a Mortgagor requests consent to transfer the related Mortgaged
Property and assign the related Mortgage Loan (other than a
Specially Serviced Mortgage Loan) to another Person who shall
assume the Mortgage Loan and the Loan Documents expressly permit
such assignment and assumption, subject to any conditions set
forth in the Loan Documents, Primary Servicer may treat such
request as a Category 1 Request but shall, in addition to the
other provisions of this Section 1 of Exhibit B-2(c), seek the
prior written consent of Special Servicer prior to consenting to
such assignment and assumption in accordance with the terms of
Section 8.7 of the Pooling and Servicing Agreement (subject to
any time periods applicable to Primary Servicer or Special
Servicer for the giving, granting or deemed granting of such
consent contained in the Pooling and Servicing Agreement) by
submitting to Special Servicer the items set forth on Appendix 2
of this Agreement relating to such assignment and assumption,.
For the purpose of the foregoing sentence, the term "expressly
permits" shall have the meaning assigned to it in Section 8.7 of
the Pooling and Servicing Agreement.
(iii) If Primary Servicer notifies Master Servicer of a Category 1
Consent Aspect and Master Servicer makes a Materiality
Determination and notifies Primary Servicer within the time
period specified above that a Category 1 Consent Aspect is
material, then Primary Servicer shall treat such request as a
Category 1 Request, but shall, in addition to the other
provisions of this Section 1 of Exhibit B-2(c), seek the prior
written consent of Special Servicer prior to consenting to the
applicable Category 1 Request, which consent shall not be
withheld or delayed unreasonably, and any such decision of
Special Servicer shall relate only to the Category 1 Consent
Aspect and shall be in accordance with the terms of the Loan
Documents and the Servicing Standard. Failure of the Special
Servicer to notify the Primary Servicer in writing of Special
Servicer's determination to grant or withhold such consent,
within five (5) Business Days following the Primary Servicer's
delivery of the request for consent to the Category 1 Consent
Aspect, shall be deemed to constitute a grant of such consent.
d) Upon conclusion of the negotiations of the documentation for the
Category 1 Request, Primary Servicer may execute and deliver the operative
documents to be executed to effect the Category 1 Request and take the other
actions necessary or appropriate to conclude such request, in each case in
accordance with the terms of this Agreement and the Pooling and Servicing
Agreement.
e) Concurrently with the execution of this Agreement, Master Servicer
shall provide to Primary Servicer a counterpart original of the Power of
Attorney executed by the Trust in favor of the Master Servicer and shall execute
and deliver to Primary Servicer a Power of Attorney attached to this Agreement
as Exhibit C. Primary Servicer shall promptly notify Master Servicer of the
execution and delivery of any document on behalf of the Master Servicer and
Trustee under such Power of Attorney ("POA Notice").
f) Upon the request of Primary Servicer, Master Servicer shall execute
and deliver the documents necessary or appropriate to effect a Category 1
Request. Such request shall not relieve Primary Servicer of its obligations
under this Agreement regarding a Category 1 Request, including without
limitation its obligation to evaluate and process such request in accordance
with this Agreement and the Pooling and Servicing Agreement and any
indemnification obligation of Primary Servicer.
g) Upon completion of each Category 1 Request, Primary Servicer shall
promptly (but in no event more than five (5) Business Days after concluding such
request) notify Master Servicer and shall accompany such notice with a brief
summary of the Category 1 Request, a brief summary of Primary
Exhibit B-2
<PAGE>
Servicer's analysis and decision regarding such request, a POA Notice (if
required) and a counterpart original or copy of the operative documents executed
or received to effect the Category 1 Request.
h) Notwithstanding the foregoing, Primary Servicer may elect to classify
and treat a Post Closing Request that otherwise qualifies as a Category 1
Request, as a Category 2 Request instead. In such case, Primary Servicer shall
adhere to the provisions of this Agreement regarding Category 2 Requests, and
all aspects of such request (including without limitation the allocation of
fees) shall be governed by the terms of this Agreement covering Category 2
Requests. Primary Servicer's decision in any one instance to treat a Post
Closing Request that otherwise qualifies as a Category 1 Request, as a Category
2 Request instead, shall not compromise or affect its right on any other
occasion to treat a similar request as a Category 1 Request.
2. CATEGORY 2 REQUESTS:
a) If Primary Servicer classifies a Post Closing Request as a Category 2
Request, it shall promptly (but in no event more than five (5) Business Days
after Primary Servicer's receiving such request) notify Master Servicer of
receiving such request, of the type of request and of Primary Servicer's
classification of the Post Closing Request as a Category 2 Request. As part of
such notice, Primary Servicer shall include the following:
(i) If such type of request has not previously been the subject
of a Category 2 Request or a Requirements List (as defined
below) has not previously been provided to Primary Servicer,
then Primary Servicer shall request from Master Servicer a
detailed list of the requirements to be satisfied for such
request (the "Requirements List"). Master Servicer shall
promptly (but in no event more than five (5) Business Days
after receiving notification of such request) provide to
Primary Servicer a Requirements List for such request.
(ii) If the type of Category 2 Request has previously been the
subject of a Post Closing Request, then Primary Servicer
shall submit the existing Requirements List to Master
Servicer. Primary Servicer may use such Requirements List for
such request unless Master Servicer provides to Primary
Servicer a replacement Requirements List within five (5)
Business Days of such notice.
b) A Requirements List (i) shall in no event be more burdensome than
that required by Master Servicer of other loans in the Trust for similar Post
Closing Requests; (ii) shall not require Primary Servicer to incur additional
third party costs or expenses; and (iii) shall require the gathering, collection
and assembling of information only and not the preparation, evaluation, analysis
of information or a recommendation regarding the Post Closing Request.
c) Primary Servicer shall then use diligent efforts to collect and
assemble the items on the applicable Requirements List. Upon such collection and
assembly, Primary Servicer shall provide to Master Servicer all of the assembled
items, a list of the items collected from the Requirements List, a list of any
items not collected, any reasons why such items were not collected and the
appropriate division of the applicable fees in accordance with the terms of this
Agreement and the Pooling and Servicing Agreement.
d) Master Servicer shall promptly (but in no event more than ten (10)
Business Days after receiving such assembled items) notify Primary Servicer and
Mortgagor of the approval or disapproval of the Category 2 Request. If Master
Servicer disapproves such request, it shall provide Primary Servicer
Exhibit B-2
<PAGE>
the reasons for such disapproval and a copy of such notice to the applicable
Mortgagor with such disapproval and such reasons. If Master Servicer approves
such request, it shall promptly process the Category 2 Request in a manner that
complies with the terms of this Agreement and the Pooling and Servicing
Agreement. Master Servicer shall draft, or cause to be drafted, all documents
necessary to effect the Category 1 Request in accordance with the terms of the
Loan Documents, this Agreement and the Pooling and Servicing Agreement. Master
Servicer shall deal directly with the applicable Mortgagor regarding a Category
2 Request after Primary Servicer submits the items on the applicable
Requirements List.
e) Upon completion of each Category 2 Request, Master Servicer shall
promptly (but in no event more than ten (10) Business Days after concluding such
request) notify Primary Servicer and shall accompany such notice with a copy of
the operative documents executed or received to effect the Category 1 Request
and the fees from such request due and owing to Primary Servicer in accordance
with this Agreement and the Pooling and Servicing Agreement.
3. CATEGORY 3 REQUESTS:
a) If Primary Servicer classifies a Post Closing Request as a Category 3
Request, it shall promptly (but in no event more than five (5) Business Days
after receiving such request) notify Master Servicer and Special Servicer of
receiving such request and of Primary Servicer's classification of the Post
Closing Request as a Category 3 Request and shall refer Category 3 Request to
the Special Servicer for handling in accordance with the Pooling and Servicing
Agreement.
b) Upon such referral, Primary Servicer shall notify the applicable
Mortgagor of such referral and shall direct the Mortgagor that all further
correspondence and interaction regarding the applicable Category 3 Request shall
be directed to and through the Special Servicer. Primary Servicer shall forward
all correspondence and other information regarding such request in its
possession to Master Servicer.
B. DISPUTE OF CLASSIFICATION.
1. NOTIFICATION OF DISPUTE. If either Master Servicer or Special Servicer
disputes the classification of Primary Servicer of any Post Closing Request,
then Master Servicer or Special Servicer, as applicable, shall notify Primary
Servicer of such dispute promptly (but in no event more than five (5) Business
Days from Primary Servicer's notice of such classification) in writing and the
specific reasons for such dispute. The parties shall then work in good faith for
a period not more than five (5) Business Days to resolve the classification of
the Post Closing Request. Primary Servicer's classification of a Post Closing
Request shall govern the handling of such request absent Primary Servicer's
receipt of notice of such dispute within the specified time period but shall not
diminish the obligation of Primary Servicer to classify Post Closing Requests in
accordance with this Agreement and to handle such requests in accordance with
this Agreement and the Pooling and Servicing Agreement.
2. RESOLUTION OF DISPUTE IN ABSENCE OF AGREEMENT. If after such good faith
efforts to resolve such classification dispute the parties cannot agree to a
classification, then the following shall apply: For Mortgage Loans with a
principal balance on the Cut-Off Date in excess of two percent (2%) of the then
Aggregate Principal Balance, then the good faith classification of the Master
Servicer or Special Servicer, as applicable, shall govern. For Mortgage Loans
with a principal balance on the Cut-Off Date of in an amount equal to or less
than two percent (2%) of the then Aggregate Principal Balance, then the good
faith classification of the Primary Servicer shall govern; provided that, in no
event, shall Primary Servicer's classification govern if such classification
would, in the sole judgment of Master Servicer,
Exhitit B-2
<PAGE>
conflict with any provision of the Pooling and Servicing Agreement or result in
a default by Master Servicer or Special Servicer under the Pooling and Servicing
Agreement.
3. PROCESSING OF POST CLOSING REQUEST DURING DISPUTE. During a pending
dispute over classification of a Post Closing Request, the parties shall
continue to cooperate to process such request in accordance with Primary
Servicer's initial classification until a resolution is achieved or, failing
resolution, the Post Closing Request is classified in accordance with the terms
of Section B.2 of this Exhibit B-2(c). Master Servicer and Primary Servicer
acknowledge that it is a goal of both parties not to unduly burden or delay the
processing of a Post Closing Request even though a dispute about classification
of such request may exist.
Exhibit B-2
<PAGE>
EXHIBIT B-3
FORMS OF PROPERTY INSPECTION REPORTS
Section 2.1(d) sets forth the obligation and timing of property inspection
reports to be delivered annually by Primary Servicer to Master Servicer on the
Mortgage Loans. Attached as this Exhibit B-3 is the form of the report described
in such section.
<PAGE>
EXHIBIT B-4
TASK DESCRIPTION
MASTER SERVICER/PRIMARY SERVICER TASK LIST
COMMERCIAL PASS-THROUGH CERTIFICATES, SERIES 1999-LIFE1
NOTE: SOME LISTED TASKS DESIGNATE MORE THAN ONE PARTY TO PERFORM THAT FUNCTION
BY PLACING AN "X" IN MORE THAN ONE COLUMN. IN THESE INSTANCES, THE
PARTIES SHALL FOLLOW ANY SPECIFIC GUIDANCE ABOUT THE ALLOCATION OF
RESPONSIBILITIES IN COMPLETING THE TASK FOUND IN THE TERMS OF THIS
AGREEMENT (INCLUDING EXHIBITS B-2 AND B-3). IN THE ABSENCE OF SPECIFIC
ALLOCATION OF OBLIGATIONS IN THIS AGREEMENT, THE PARTIES SHALL WORK IN
GOOD FAITH TO ALLOCATE RESPONSIBILITIES IN A FAIR AND EQUITABLE MANNER IN
ACCORDANCE WITH THIS AGREEMENT AND THE POOLING AND SERVICING AGREEMENT.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. Asset Files
- ---------------------------------------------------------------------------------------------------------------------------------
Original credit file management X
- ---------------------------------------------------------------------------------------------------------------------------------
Original collateral file (security) X
- ---------------------------------------------------------------------------------------------------------------------------------
Authorized parties list for request for release of collateral from Trustee X X
- ---------------------------------------------------------------------------------------------------------------------------------
Establish servicing files criteria X X
- ---------------------------------------------------------------------------------------------------------------------------------
Provide access to servicing files and copies of servicing files or of specific docs X
upon request to the Master Servicer
- ---------------------------------------------------------------------------------------------------------------------------------
Request delivery of files from Trustee upon request and certification of Primary X
Servicer
- ---------------------------------------------------------------------------------------------------------------------------------
2. Property Taxes
- ---------------------------------------------------------------------------------------------------------------------------------
Preparation and delivery of quarterly tax tickler reports X
- ---------------------------------------------------------------------------------------------------------------------------------
Monitoring of tax status - Loans with/without escrows X
- ---------------------------------------------------------------------------------------------------------------------------------
Recommendation of payment of taxes - Loans with/without escrows X
- ---------------------------------------------------------------------------------------------------------------------------------
Notification of advance requirement 3 business days prior to advance being required X
- ---------------------------------------------------------------------------------------------------------------------------------
Payment of taxes - with sufficient escrows X
- ---------------------------------------------------------------------------------------------------------------------------------
Payment of taxes - with escrow shortfall X
- ---------------------------------------------------------------------------------------------------------------------------------
3. Property Insurance
- ---------------------------------------------------------------------------------------------------------------------------------
Preparation and delivery of quarterly insurance tickler reports X
- ---------------------------------------------------------------------------------------------------------------------------------
Monitoring of insurance status - Loans with/without escrows X
- ---------------------------------------------------------------------------------------------------------------------------------
Ensure insurance carrier meets Pooling and Servicing Agreement qualifications X
- ---------------------------------------------------------------------------------------------------------------------------------
Ensure insurance in favor of the Master Servicer on behalf of the Trustee X
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Recommendation of payment or force placement of insurance with/without escrow X
- ---------------------------------------------------------------------------------------------------------------------------------
Notification of advance requirement or force placement of insurance 3 business days X
prior to advance being required
- ---------------------------------------------------------------------------------------------------------------------------------
Payment of insurance - with sufficient escrows X
- ---------------------------------------------------------------------------------------------------------------------------------
Payment of insurance or force placement - with escrow shortfall X
- ---------------------------------------------------------------------------------------------------------------------------------
Category 1 Requests
- ---------------------------------------------------------------------------------------------------------------------------------
Preparation and presentment of claims X
- ---------------------------------------------------------------------------------------------------------------------------------
Collection of insurance proceeds X
- ---------------------------------------------------------------------------------------------------------------------------------
Category 2 Requests
- ---------------------------------------------------------------------------------------------------------------------------------
Preparation and presentment of claims X
- ---------------------------------------------------------------------------------------------------------------------------------
Collection of insurance proceeds X
- ---------------------------------------------------------------------------------------------------------------------------------
4. UCC Continuation Filings
- ---------------------------------------------------------------------------------------------------------------------------------
Preparation and delivery of quarterly UCC tickler report X
- ---------------------------------------------------------------------------------------------------------------------------------
Maintain tickler system of refiling the dates on all Loans X
- ---------------------------------------------------------------------------------------------------------------------------------
File UCC Continuation Statements X
- ---------------------------------------------------------------------------------------------------------------------------------
Pay recording fees X
- ---------------------------------------------------------------------------------------------------------------------------------
Monitor tickler system X
- ---------------------------------------------------------------------------------------------------------------------------------
5. Collection/Deposit/Distribution of P&I payments and Principal Prepayments
- ---------------------------------------------------------------------------------------------------------------------------------
Collection and deposit of loan P&I payments X
- ---------------------------------------------------------------------------------------------------------------------------------
Remittance of available Primary Servicer P&I payments (net of Aggregate Servicing Fee) X
- ---------------------------------------------------------------------------------------------------------------------------------
Provide Collection Reports to Master Servicer X
- ---------------------------------------------------------------------------------------------------------------------------------
Distribution of P&I payments to the Trustee X
- ---------------------------------------------------------------------------------------------------------------------------------
Distribution of Special Servicer compensation X
- ---------------------------------------------------------------------------------------------------------------------------------
Approval of Prepayment Premiums X
- ---------------------------------------------------------------------------------------------------------------------------------
6. Collection/Deposit/Disbursement of Reserves
- ---------------------------------------------------------------------------------------------------------------------------------
Collection and deposit of reserves X
- ---------------------------------------------------------------------------------------------------------------------------------
Disbursement of reserves X
- ---------------------------------------------------------------------------------------------------------------------------------
Provide monthly reconciliation of individual and commingled reserves detailing all X
disbursements
- ---------------------------------------------------------------------------------------------------------------------------------
7. Customer Billing, Collection and Customer Service
- ---------------------------------------------------------------------------------------------------------------------------------
Contact delinquent borrowers by phone 3 days after delinquent date X
- ---------------------------------------------------------------------------------------------------------------------------------
Send 30 day delinquent notices X
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Exhibit B-4
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Send notice of balloon payment to each Borrower one year, 180, and 90 days prior to X
the related maturity date
- ---------------------------------------------------------------------------------------------------------------------------------
Provide copy of Balloon Mortgage Loan notice to Master Servicer X
- ---------------------------------------------------------------------------------------------------------------------------------
8. Escrows
- ---------------------------------------------------------------------------------------------------------------------------------
Setup and monitor Escrow Accounts including escrow analysis X
- ---------------------------------------------------------------------------------------------------------------------------------
Pay borrower investment income required X
- ---------------------------------------------------------------------------------------------------------------------------------
Provide monthly reconciliation of individual and commingled escrow accounts detailing X
all disbursements
- ---------------------------------------------------------------------------------------------------------------------------------
Prepare annual escrow analysis and provide copy to Master Servicer X
- ---------------------------------------------------------------------------------------------------------------------------------
9. Loan payment history/calculation
- ---------------------------------------------------------------------------------------------------------------------------------
Maintain loan payment history X
- ---------------------------------------------------------------------------------------------------------------------------------
Create payoff/reinstatement statements and telecopy to Master Servicer X
- ---------------------------------------------------------------------------------------------------------------------------------
Approve payoff calculations and telecopy approval to Primary Servicer within five (5) X
Business Days
- ---------------------------------------------------------------------------------------------------------------------------------
10. Monitoring of Financial and Legal Covenants
- ---------------------------------------------------------------------------------------------------------------------------------
Collect quarterly and annual operating statements, budgets, rent rolls and borrower X
financial statements, as applicable
- ---------------------------------------------------------------------------------------------------------------------------------
Provide template and methodology for completing annual financial statement
analysis which includes calculations for occupancy %; NOI and DSC X
- ---------------------------------------------------------------------------------------------------------------------------------
Deliver 3 copies of quarterly and annual operating statements, budgets,
rent rolls, and borrower financial statement, as applicable, within 20 X
days of Primary Servicer's receipt
- ---------------------------------------------------------------------------------------------------------------------------------
Deliver 1 copy of completed annual operating statement analysis template to
Master Servicer by May 15 of each year X
- ---------------------------------------------------------------------------------------------------------------------------------
11. Advancing
- ---------------------------------------------------------------------------------------------------------------------------------
Determination of Non-Recoverability X
- ---------------------------------------------------------------------------------------------------------------------------------
12. Borrower Inquiries/Performing Loans
- ---------------------------------------------------------------------------------------------------------------------------------
Performing Loans - respond to routine billing questions X
- ---------------------------------------------------------------------------------------------------------------------------------
Category 1 Requests
- ---------------------------------------------------------------------------------------------------------------------------------
Assumptions & Due on sale:
- ---------------------------------------------------------------------------------------------------------------------------------
Borrower contact and data gathering X
- ---------------------------------------------------------------------------------------------------------------------------------
Underwriting and analysis of request X
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Exhibit B-4
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Approval of assumption X
- ---------------------------------------------------------------------------------------------------------------------------------
Consent to assumption X
- ---------------------------------------------------------------------------------------------------------------------------------
Close assumption X
- ---------------------------------------------------------------------------------------------------------------------------------
Category 2 Requests
- ---------------------------------------------------------------------------------------------------------------------------------
Assumptions & Due on sale:
- ---------------------------------------------------------------------------------------------------------------------------------
Initial Borrower contact and data gathering X
- ---------------------------------------------------------------------------------------------------------------------------------
Underwriting and analysis X
- ---------------------------------------------------------------------------------------------------------------------------------
Approval of assumption X
- ---------------------------------------------------------------------------------------------------------------------------------
Consent to assumption X
- ---------------------------------------------------------------------------------------------------------------------------------
Close assumption (directly with Borrower) X
- ---------------------------------------------------------------------------------------------------------------------------------
Modifications (Non-Money Terms), Waivers, Consents and Extensions up to 60
days (not otherwise provided in this Agreement):
- ---------------------------------------------------------------------------------------------------------------------------------
Initial Borrower contact and data gathering X
- ---------------------------------------------------------------------------------------------------------------------------------
Underwriting and analysis X
- ---------------------------------------------------------------------------------------------------------------------------------
Approval of modification and extensions up to 60 days X
- ---------------------------------------------------------------------------------------------------------------------------------
Consent to modification and waivers and other consents (not otherwise provided in X
this Agreement)
- ---------------------------------------------------------------------------------------------------------------------------------
Closing Documents and Closing X
- ---------------------------------------------------------------------------------------------------------------------------------
Modification (Money Terms): X
- ---------------------------------------------------------------------------------------------------------------------------------
Extensions of Maturity Date (more than 60 days): X
- ---------------------------------------------------------------------------------------------------------------------------------
Response to request for Discounted Payoffs, Workouts, Restructures, Forbearances, X
Casualties and Condemnation
- ---------------------------------------------------------------------------------------------------------------------------------
13. Monthly Reporting (Hardcopy & Electronic mail)
- ---------------------------------------------------------------------------------------------------------------------------------
Day One Report X
- ---------------------------------------------------------------------------------------------------------------------------------
Delinquency and past due reporting on all Loans X
- ---------------------------------------------------------------------------------------------------------------------------------
Report of payment/account status (trial balance/transaction detail) X
- ---------------------------------------------------------------------------------------------------------------------------------
Cash account Reconciliations - Copies of monthly bank statements for all deposit, X
escrow and reserve accounts
- ---------------------------------------------------------------------------------------------------------------------------------
Other Payment and Mortgage Loan Status Reports designated as due Monthly in this X
Agreement
- ---------------------------------------------------------------------------------------------------------------------------------
14. Category 1 Requests
- ---------------------------------------------------------------------------------------------------------------------------------
Release of Collateral
- ---------------------------------------------------------------------------------------------------------------------------------
Determination if collateral should be released X
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Exhibit B-4
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Consent to release collateral X
- ---------------------------------------------------------------------------------------------------------------------------------
Request delivery of files from Trustee upon Primary Servicer request and X
certification
- ---------------------------------------------------------------------------------------------------------------------------------
Preparation and recordation of release deeds all Loans (full and partial) X
- ---------------------------------------------------------------------------------------------------------------------------------
Category 2 Requests
- ---------------------------------------------------------------------------------------------------------------------------------
Release of Collateral
- ---------------------------------------------------------------------------------------------------------------------------------
Initial Borrower contact and data gathering X
- ---------------------------------------------------------------------------------------------------------------------------------
Underwriting and analysis X
- ---------------------------------------------------------------------------------------------------------------------------------
Determination if collateral should be released X
- ---------------------------------------------------------------------------------------------------------------------------------
Consent to release collateral X
- ---------------------------------------------------------------------------------------------------------------------------------
Request delivery of files from Trustee X
- ---------------------------------------------------------------------------------------------------------------------------------
Preparation and recordation of release deeds all Loans (full and partial) X
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
15. Property Annual Inspections
- ---------------------------------------------------------------------------------------------------------------------------------
Conduct site inspection per Pooling and Servicing Agreement requirement X
- ---------------------------------------------------------------------------------------------------------------------------------
Provide 3 copies of site inspection reports to the Master Servicer within 30 days of X
inspection
- ---------------------------------------------------------------------------------------------------------------------------------
16. Preparation of servicing transfer letters X
- ---------------------------------------------------------------------------------------------------------------------------------
17. Preparation of IRS Reporting (1098s and 1099s or other tax reporting
requirements) and delivery of copies to the Master Servicer by January X
31st of each year
- ---------------------------------------------------------------------------------------------------------------------------------
18. Provide Annual Officer's Certificate as to compliance to Master Servicer by
March 15 of each year X
- ---------------------------------------------------------------------------------------------------------------------------------
19. Provide Annual Independent Accountant's Servicing Report (USAP) to Master X
Servicer by April 1 of each year
- ---------------------------------------------------------------------------------------------------------------------------------
20. Compensation
- ---------------------------------------------------------------------------------------------------------------------------------
Primary Servicer Fee X
- ---------------------------------------------------------------------------------------------------------------------------------
Investment earnings on Primary Servicer Collection Account X
- ---------------------------------------------------------------------------------------------------------------------------------
Investment earnings on tax & insurance reserves not payable to borrower X
- ---------------------------------------------------------------------------------------------------------------------------------
Investment earning on reserve accounts not payable to borrower X
- ---------------------------------------------------------------------------------------------------------------------------------
Late charges to the extent collected from borrower (offsets advance interest per X
Pooling and Servicing Agreement)
- ---------------------------------------------------------------------------------------------------------------------------------
21. Defeasance
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Exhibit B-4
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Coordinate, analyze, approve, and process defeasance request X
- ---------------------------------------------------------------------------------------------------------------------------------
Consent to defeasance X
- ---------------------------------------------------------------------------------------------------------------------------------
Service Defeasance Loans X
- ---------------------------------------------------------------------------------------------------------------------------------
Retain all fees associated with Defeasance Loans X
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Exhibit B-4
<PAGE>
EXHIBIT C
FORM OF POWER OF ATTORNEY FROM MASTER SERVICER
RECORDING REQUESTED BY:
Wells Fargo Bank, National Association
417 Montgomery Street, 5th Floor
San Francisco, California 94111
AND WHEN RECORDED MAIL TO:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392
Attention: Commercial Mortgage Pass-
Through Series 1999-LIFE1
Space above this line for Recorder's use
- -------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that WELLS FARGO BANK, NATIONAL ASSOCIATION,
acting solely in its capacity as Master Servicer ("Master Servicer"), under the
Pooling and Servicing Agreement dated as of August 1, 1999 (the "Pooling and
Servicing Agreement") and a Primary Servicing Agreement dated as of August 1,
1999 (the "Primary Servicing Agreement"), in each case relating to the
Commercial Mortgage Pass-Through Certificates, Series 1999-LIFE1, does hereby
nominate, constitute and appoint Principal Capital Management, LLC, as Primary
Servicer under the Primary Servicing Agreement ("Principal Capital Management,
LLC"), as its true and lawful attorney-in-fact for it and in its name, place,
stead and for its use and benefit: To perform any and all acts which may be
necessary or appropriate to enable Principal Capital Management, LLC to service
and administer the Mortgage Loans (as defined in the Primary Servicing
Agreement) in connection with the performance by Principal Capital Management,
LLC of its duties as Primary Servicer under the Primary Servicing Agreement,
giving and granting unto Principal Capital Management, LLC full power and
authority to do and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or confirming all
that Principal Capital Management, LLC shall lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this 10th day of August, 1999.
WELLS FARGO BANK,
NATIONAL ASSOCIATION,
acting solely in its
capacity as Master
Servicer under the
Pooling and Servicing
Agreement and the
Primary Servicing
Agreement
By:__________________
Name:
Title:
Exhbit C
S-1-2
<PAGE>
APPENDIX 1
ITEMS REQUIRED FOR DEFEASANCE SUBMISSION TO MASTER SERVICER
REQUEST FOR MASTER SERVICER CONSENT TO DEFEASANCE
Primary Servicer shall submit to Master Servicer the following listed items
to seek the consent of Master Servicer to a defeasance of a Mortgage Loan that
Primary Servicer is permitted to process under this Primary Servicing Agreement.
1. Copy of written notice to Primary Servicer from Mortgagor requesting
defeasance.
2. Description of proposed Defeasance Collateral and written confirmation from
an independent accountant stating that payments made on such Defeasance
Collateral in accordance with the terms thereof will be sufficient to pay
the subject Mortgage Loan (or the defeased portion thereof in connection
with a partial defeasance) in full on or before its Maturity Date and to
timely pay each subsequent Scheduled Payment.
3. Form of security agreement creating first priority lien on the Defeasance
Collateral ("Pledge Agreement").
4. Form of release from Mortgage.
5. Form of certificate from Mortgagor certifying that Loan Document defeasance
provisions have been satisfied.
6. Form of opinion of counsel from counsel to Mortgagor or other counsel that
the Trust has the benefit of a first lien, perfected security interest in
the Defeasance Collateral.
7. Form of documents creating the Single-Purpose Entity which will hold the
Defeasance Collateral, if applicable.
8. Form of certification from Primary Servicer that defeasance will occur on
or after second anniversary of the Closing Date or an opinion of counsel
that defeasance will not result in an Adverse REMIC Event.
9. Such other items as are reasonably required by Master Servicer consistent
with the Servicing Standard as long as such requirements may be required of
the related Mortgagor under the related Loan Documents without additional
expense to Primary Servicer or Master Servicer.
<PAGE>
APPENDIX 2
ASSIGNMENT AND ASSUMPTION SUBMISSION TO SPECIAL SERVICER
PRESENT BORROWER:
PROPOSED BORROWER:
PRIMARY SERVICER #:
SPECIAL SERVICER #
COLLATERAL TYPE: (Retail, Industrial, Apartments,
Office, etc.)
ADDRESS: PROPERTY ADDRESS
CITY, STATE, ZIP CODE
ASSET STATUS: As of (date)
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
INSURANCE ESCROW BALANCE: $
Reserve Escrow Balance: $
Monthly (P&I) Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Maturity Date
Origination Date:
EXECUTIVE SUMMARY:
1. Summarize the transaction;
2. Discuss proposed borrower entity and ownership structure;
3. How will title be held;
4. Source of cash for down payment;
5. Briefly describe collateral
A. Size, occupancy, primary tenants, location,
B. Prior year NOI and DSCR and Pro-forma NOI DSCR;
2. Complete the chart below:
<PAGE>
The sale terms and property characteristics are summarized as follows:
- -------------------------------------------------------------------------------
Purchase price $
- -------------------------------------------------------------------------------
Buyer down payment $ (%)
- -------------------------------------------------------------------------------
Estimated closing date
- -------------------------------------------------------------------------------
1% loan fee split: Principal Capital .25% - $
- -------------------------------------------------------------------------------
WFB, Master Serv. .25% - $
- -------------------------------------------------------------------------------
WFB Special Serv. .50% - $
- -------------------------------------------------------------------------------
Most recent appraised value according to appraisal $
in Primary Servicer's possession
- -------------------------------------------------------------------------------
Loan-to-value as if initial underwriting %
- -------------------------------------------------------------------------------
Occupancy as of %
- -------------------------------------------------------------------------------
12/31/98 NOI $
- -------------------------------------------------------------------------------
Debt service coverage x
- -------------------------------------------------------------------------------
FINANCIAL CONDITION OF PROPOSED BORROWER/GUARANTOR:
1. Explain background and experience of the proposed borrower/principals;
2. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued;
3. Highlight Balance sheet and Income statement
A. Describe significant assets (e.g. obtain from borrower information
about how it values its assets)
B. Related debt
1. For public companies that have historical financial information:
A. Spread Balance Sheet for minimum of two (2) years (request three (3)
years, if available)
B. Spread and commonsize Income statement for minimum of two (2) years
(request three (3) years, if available);
1. Explain results of credit checks, legal searches and banking credit
references (two required)
PROJECT STATUS & DESCRIPTION: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property: (e.g. issues surrounding current occupancy, anchor tenants, tenant
rollover)
PROPERTY FINANCIAL SUMMARY: (See attached most recent Income and Expense
Statement for Mortgaged Property and year-to-date operating statements)
NEW ENVIRONMENTAL AND ENGINEERING DEVELOPMENTS (IF ANY) AND STATUS OF ISSUES
IDENTIFIED IN ORIGINAL REPORTS OR LOAN DOCUMENTS AS NEEDING REMEDIATION: (See
attached Asset Summary)
1. Describe any material issues requiring remediation contained in original
reports
2. Describe current status of issue and remediation
Appendix 2
<PAGE>
ESCROW STATUS:
1. Explain reserves
PROPERTY MANAGEMENT SUMMARY:
1. Who is proposed property management firm
2. Background and Experience
COLLATERAL VALUATION:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value
given most weight from most recent appraisal in Primary
Servicer's possession
1. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
CURRENT MARKET CONDITIONS:
Briefly state material current real estate market dynamics and economic
influences that may affect the operational performance of the property.
RECOMMENDATION:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weakness mitigated? (bullet
points are fine)
Appendix 2
<PAGE>
REQUEST FOR SPECIAL SERVICER CONSENT:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing Assignment and Assumption.
< >
By: _______________________________________
Title: _____________________________________
Date: _____________________________________
Consent to Assignment & Assumption is given:
WELLS FARGO BANK, NATIONAL ASSOCIATION, acting solely in its capacity
as Special Servicer
By: _______________________________________
Title: _____________________________________
Date: _____________________________________
Appendix 2
<PAGE>
SCHEDULE OF EXHIBITS TO ASSUMPTION SUBMISSION
1. Financial statements of purchasing entity (audited, if available)
2. Bank and /or credit references for transferee
3. Credit report for principal(s) of the proposed borrowing entity.
4. Most recent Income & Expense Statement for property and operating statement
review
5. Most recent Property Inspection report
6. Purchase and Sale Agreement
7. If available from borrower, diagram of proposed ownership structure,
including percentages of ownership
8. Proposed property management agreement
9. Description and source of equity being used for the purchase, if available
10. Most recent Rent Roll.
11. Other items as required by the description set forth above
Appendix 2
<PAGE>
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, 199__
TO: The Depository Trust Company
CEDEL BANK, S. A. or
Morgan Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Wells Fargo Bank, National Association, as Master Servicer
LaSalle Bank National Association, as Trustee
and as Certificate Registrar
This is to notify you as to the transfer of the beneficial
interest in $_______________ of Morgan Stanley Capital I Inc. Commercial
Mortgage Pass-Through Certificates, Series 1999-LIFE1, Class __(the
"Certificates").
The undersigned is the owner of a beneficial interest in the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and requests that on [INSERT DATE], (i) [Euroclear] [CEDEL] [DTC] debit account
#__________, with respect to $__________ principal denomination of the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and (ii)
[DTC] [Euroclear] [CEDEL] credit the beneficial interest of the below-named
purchaser, account #__________, in the Class __ [Rule 144A-IAI Global
Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer I D. No.:
The undersigned hereby represents that this transfer is being
made in accordance with an exemption from the provisions of Section 5 of the
United States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the
H-1
<PAGE>
1933 Act][an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act and in accordance
with any applicable securities laws of any state of the United States and, if
the purchaser has purchased the Certificates for one or more accounts for which
it is acting as fiduciary or agent, each such account is a qualified
institutional buyer or an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act] and that the
purchaser is acquiring beneficial interests in the applicable Certificate1 for
its own account or for one or more institutional accounts for which it is acting
as fiduciary or agent in a minimum amount equivalent to not less than U.S.
$100,000 and integral multiples of U.S. $1 in excess thereof for each such
account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By: ______________________________
[Name], [Chief Financial
or other Executive Officer]
- ------------------
(1) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURSHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON ANY
TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN GLOBAL FORM.]
H-2
<PAGE>
EXHIBIT I
FORM OF EUROCLEAR OR CEDEL CERTIFICATE
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-LIFE1, CLASS (THE "CERTIFICATES")
TO: LaSalle Bank National Association, as Trustee and as Certificate
Registrar
Attn: Corporate Trust Services (CMBS)
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of August 1, 1999 (the "Pooling and Servicing
Agreement") among you, Morgan Stanley Capital I Inc., ABN AMRO Bank N.V. and
Wells Fargo Bank, National Association, U.S. $__________ principal amount of the
above-captioned Certificates held by us or on our behalf are beneficially owned
by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased the Certificates
in transactions that did not require registration under the United States
Securities Act of 1933, as amended (the "Securities Act"). As used in this
paragraph, the term "U.S. person" has the meaning given to it by Regulation S
under the Securities Act.
We further certify that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such Member Organizations with respect to any
interest in the Certificates identified above are no longer true and cannot be
relied upon as of the date hereof.
[On Release Date: We hereby acknowledge that no portion of the
Class __ Regulation S Temporary Global Certificate shall be exchanged for an
interest in the Class __ Regulation S Permanent Global Certificate (as each such
term is defined in the Pooling and Servicing Agreement) with respect to the
portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
I-1
<PAGE>
We understand that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification to any interested party in such
proceedings.
Dated:
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, Brussels office,
as operator of the Euroclear
System]
or
[CEDEL BANK, S.A.]
By: ____________________________
I-2
<PAGE>
EXHIBIT J
LIST OF LOANS TO WHICH EXCESS SERVICING FEES ARE PAID
J-1
<PAGE>
EXHIBIT J
- -------------------------------------------------------------------------------
LOAN NUMBER PROPERTY NAME
- -------------------------------------------------------------------------------
22 Plaza Madison
- -------------------------------------------------------------------------------
26 Peddler's Village
- -------------------------------------------------------------------------------
28 DM Management
- -------------------------------------------------------------------------------
31 DCT Industrial Buildings (III)
- -------------------------------------------------------------------------------
32 Noble International Industrial Building (III )
- -------------------------------------------------------------------------------
33 Plaza Building A of the Vienna Technology Pak
- -------------------------------------------------------------------------------
36 Parke Towne North Apts.
- -------------------------------------------------------------------------------
37 The Landings Apartments
- -------------------------------------------------------------------------------
40 Point Defiance Village
- -------------------------------------------------------------------------------
44 Casa Grande Apartments
- -------------------------------------------------------------------------------
52 110 Leroy Street
- -------------------------------------------------------------------------------
60 1275 Commerce Boulevard
- -------------------------------------------------------------------------------
63 Encino Garden Court
- -------------------------------------------------------------------------------
64 Meadow Creek Village Shopping Center (VII)
- -------------------------------------------------------------------------------
65 Woodlake Village Shopping Center (VII)
- -------------------------------------------------------------------------------
66 Renaissance Plaza
- -------------------------------------------------------------------------------
73 Merrill Ridge Plaza
- -------------------------------------------------------------------------------
74 Corporate Center II (VIII)
- -------------------------------------------------------------------------------
75 Corporate Center III (VIII)
- -------------------------------------------------------------------------------
78 Bayshore Village Apartments
- -------------------------------------------------------------------------------
80 Kings Hill Industrial Center
- -------------------------------------------------------------------------------
103 Festivals Office Park
- -------------------------------------------------------------------------------
111 Nypro Building
- -------------------------------------------------------------------------------
115 Jackson Street Mini Storage
- -------------------------------------------------------------------------------
126 Main Steel
- -------------------------------------------------------------------------------
<PAGE>
EXHIBIT K-1
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT I
K-1-1
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
(PRINCIPAL LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of July 28,
1999, between Principal Commercial Funding, LLC (the "Seller"), and Morgan
Stanley Capital I Inc. (the "Purchaser").
The Seller agrees to sell and the Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. The Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of August1, 1999, between the Purchaser,
as depositor, Wells Fargo Bank, National Association, as master servicer (the
"Master Servicer") and as special servicer (the "Special Servicer"), LaSalle
Bank National Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V.,
as fiscal agent (the "Fiscal Agent"). In exchange for the Mortgage Loans and
certain other mortgage loans to be purchased by the Purchaser (collectively the
"Other Mortgage Loans"), the Trust will issue to the Depositor pass-through
certificates to be known as Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE1 (the "Certificates"). The
Certificates will be issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class B, Class C, Class D and Class E
Certificates (the "Public Certificates") will be sold by the Purchaser to
Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co. (the
"Underwriters"), pursuant to an Underwriting Agreement, between the Purchaser
and the Underwriters, dated July 28, 1999 (the "Underwriting Agreement"), and
the Class X, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class R-I, Class R-II and Class R-III Certificates
(the "Private Certificates") will be sold by the Purchaser to Morgan Stanley &
Co. Incorporated (the "Initial Purchaser") pursuant to a Certificate Purchase
Agreement, between the Purchaser and the Initial Purchaser, dated July 28, 1999
(the "Certificate Purchase Agreement"). The Underwriters will offer the Public
Certificates for sale publicly pursuant to a Prospectus dated July 19, 1999, as
supplemented by a Prospectus Supplement dated July 28, 1999 (together, the
"Prospectus Supplement"), and will offer the Private Certificates for sale in
transactions exempt from the registration requirements of the Securities Act of
1933 pursuant to a Private Placement Memorandum dated July 28, 1999 (the
"Memorandum").
In consideration of the mutual agreements contained herein, the Seller
and the Purchaser hereby agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on a servicing released basis (but subject to the
designation of Principal Capital Management, LLC as primary servicer (the
"Primary Servicer") under the Pooling and Servicing Agreement as enduring
Primary Servicer), the Mortgage Loans identified on the schedule (the "Mortgage
Loan Schedule") annexed hereto as Exhibit 1, as such schedule
<PAGE>
may be amended to reflect the actual Mortgage Loans accepted by the Purchaser
pursuant to the terms hereof. The Cut-Off Date with respect to the loans set
forth on Schedule B shall be August 5, 1999; the Cut-Off Date with respect to
the remaining Mortgage Loans is August 1, 1999. The Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $337,702,158. The sale of the Mortgage Loans shall take place on
August 10, 1999 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The purchase price to be paid by the
Purchaser for the Mortgage Loans shall equal the amount set forth as such
purchase price on Exhibit 3 hereto. Such purchase price shall be paid to the
Seller by wire transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 14), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 14).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing Date, subject only to receipt of the consideration referred to in
Section 1 hereof and the satisfaction of the conditions specified in Sections 6
and 7 hereof, the Seller does hereby transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule
as of the Closing Date. The Mortgage Loan Schedule, as it may be amended from
time to time, on or prior to the Closing Date shall conform to the requirements
of this Agreement and the Pooling and Servicing Agreement. In connection with
such transfer and assignment, the Seller shall deliver to or on behalf of the
Trustee, on behalf of the Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage Loan. In
addition, not later than the 30th day following the Closing Date, the Seller
shall deliver to or on behalf of the Trustee each of the remaining documents or
instruments specified below (with such exceptions as are permitted by this
Section) with respect to each Mortgage Loan (each, a "Mortgage File"). (The
Seller acknowledges that the term "without recourse" does not modify the duties
of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to
the Closing Date are to be held by or on behalf of the Trustee in escrow on
behalf of the Seller at all times prior to the Closing Date. The Mortgage Files
shall be released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of LaSalle Bank National Association,
as Trustee for Morgan Stanley Capital I, Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1, without recourse, representation or warranty"
or if the original Mortgage Note is not included therein, then a lost note
affidavit, with a copy of the Mortgage Note attached thereto;
2
<PAGE>
(b) The original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon, (if recording is customary in the
jurisdiction in which such power of attorney was executed), or certified by a
title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 30th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Seller shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate (as defined below) of
the Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (ii) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon, or if such original modification,
consolidation and extension agreements have been delivered to the appropriate
recording office for recordation and either has not yet been returned with
evidence of recordation thereon or has been lost after recordation, true copies
of such modifications, consolidations and extensions certified by the Seller
together with (i) in the case of a delay caused by the public recording office,
an Officer's Certificate of the Seller stating that such original modification,
consolidation or extension agreement has been dispatched or sent to the
appropriate public recording official for recordation or (ii) in the case of an
original modification, consolidation or extension agreement that has been lost
after recordation, a certification by the appropriate county recording office
where such document is recorded that such a copy is a true and complete copy of
the original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any, each signed by the holder of
record in favor of "LaSalle Bank National Association, as Trustee for Morgan
Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-LIFE1";
(d) An original Assignment of Mortgage for each Mortgage Loan,
in form and substance acceptable for recording, signed by the holder of record
in favor of "LaSalle Bank National Association, as Trustee for Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-LIFE1";
(e) Originals of all intervening assignments of Mortgage, if
any, with evidence of recording thereon or, if such original assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such assignments of Mortgage certified by
the Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by the Seller, a copy thereof certified by the Seller or, if
any original intervening assignment of Mortgage has not yet been returned from
the applicable recording office or has been lost, a true and correct copy
thereof, together with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Seller stating that such
3
<PAGE>
original intervening assignment of Mortgage has been sent to the appropriate
public recording official for recordation or (ii) in the case of an original
intervening Assignment of Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such assignment
is recorded that such copy is a true and complete copy of the original recorded
intervening Assignment of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such Assignment of Leases
certified by the Seller to be a true and complete copy of the original
Assignment of Leases submitted for recording, together with (i) an original of
each assignment of such Assignment of Leases with evidence of recording thereon
and showing a complete recorded chain of assignment from the named assignee to
the holder of record, and if any such assignment of such Assignment of Leases
has not been returned from the applicable public recording office, a copy of
such assignment certified by the Seller to be a true and complete copy of the
original assignment submitted for recording, and (ii) an original assignment of
such Assignment of Leases, in recordable form, signed by the holder of record in
favor of "LaSalle Bank National Association, as Trustee for Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-LIFE1," which assignment may be effected in the related Assignment of
Mortgage;
(g) The original of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(i) UCC financing statements (together with all assignments
thereof to the Trustee) executed and delivered in connection with any Mortgage
Loan;
(j) Copies of ground leases, if any, related to any Mortgage
Loan where the Mortgagor is the lessee under such lease and there is a lien in
favor of the mortgagee in such lease.
(k) copies of any lock-box agreements and intercreditor
agreements, if any, related to any Mortgage Loan; and
(l) a copy of each Letter of Credit, if any, constituting
additional collateral for such Mortgage Loan, together with the original
supporting documentation evidencing a beneficial transfer, in favor of LaSalle
Bank National Association, as Trustee for Morgan Stanley Capital Inc.,
Commercial Pass-Through Certificates, Series 1999-LIFE1; provided, however, the
Trustee shall hold such Letter of Credit only in a custodian capacity and shall
have no obligation
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to maintain, extend the term of, enforce, or otherwise preserve any rights under
such Letter of Credit;
The original of each Letter of Credit referred to in clause
(l) above shall be delivered to the Primary Servicer within 45 days of the
Closing Date.
"Officer's Certificate" shall mean a certificate signed by one
or more of the Chairman of the Board, any Vice Chairman, the President, any
Senior Vice President, any Vice President, any Assistant Vice President, any
Treasurer or any Assistant Treasurer.
The Assignments of Mortgage, assignment of Assignment of
Leases and assignment of UCC financing statement referred to in clauses (d),
(e), (f) and (i) may be in the form of a single instrument assigning the
Mortgage, Assignment of Leases and UCC financing statement to the extent
permitted by applicable law. The Seller will deliver the original Mortgage Note
to the Trustee, on behalf of the Purchaser, endorsed, to effect the transfer to
the Purchaser of the Mortgage Notes and all related deeds of trust, mortgages
and other loan documents specified above. Concurrently herewith, the Purchaser
has contracted to sell the Mortgage Loans to the Trustee on behalf of the
Certificateholders. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, the Seller shall
execute, in accordance with the third succeeding paragraph, the assignments of
mortgages, the assignments of leases (to the extent separate from the mortgages)
and assignments of UCC financing statements relating to the Mortgage Loans
naming the Trustee on behalf of the Certificateholders as assignee.
Notwithstanding the fact that such assignments of mortgages, assignments of
leases (to the extent separate from the assignments of mortgages) and the
assignments of UCC financing statements shall name the Trustee on behalf of the
Certificateholders as the assignee, the parties hereto acknowledge and agree
that the Mortgage Loans shall for all purposes be deemed to have been
transferred from the Seller to the Purchaser and from the Purchaser to the
Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, to the
Trustee any of the documents or instruments referred to in clause (b), (c), (e)
or (f) with evidence of recording thereon for any other reason, or if the Seller
has not delivered, or caused to be delivered, to the Trustee the original
thereof with evidence of recording thereon within 45 days of the Closing Date,
the Seller shall deliver or cause to be delivered to the Trustee a photocopy of
such document or instrument with evidence of recording thereon and certified by
the appropriate county recorder's office be a true and complete copy of the
original thereof submitted for recording.
If the Seller cannot deliver, or cause to be delivered, as to
any Mortgage Loan, any of the documents and/or instruments referred to in
clauses(b), (c), (e) or (f), with evidence of recording thereon, solely because
of a delay caused by the public recording office where such document or
instrument has been delivered for recordation within such 45 day period, but the
Seller delivers a photocopy thereof (certified by the appropriate county
recorder's office to be a
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true and complete copy of the original thereof submitted for recording), to the
Trustee within such 45 day period, the Seller shall then deliver within 90 days
after the Closing Date the recorded document (or within such longer period after
the Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the Seller is, as certified in writing to the
Trustee no less often than monthly, in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Depositor, shall
be entitled to all scheduled payments of principal due after the Cut-Off Date,
all other payments of principal collected after the Cut-Off Date (other than
scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver and the Purchaser, the Trustee or the agents of either may submit or
cause to be submitted for recordation at the expense of the Seller, in the
appropriate public office for real property records, each assignment referred to
in clauses (d) and (f)(ii) above. Within 90 days following the Closing Date, the
Seller shall deliver and the Purchaser, the Trustee or the agents of either may
submit or cause to be submitted for filing, at the expense of the Seller, in the
appropriate public office for Uniform Commercial Code financing statements, the
assignment referred to in clause (i) above. If any such document or instrument
is lost or returned unrecorded or unfiled, as the case may be, because of a
defect therein, the Seller shall prepare a substitute therefor or cure such
defect, and the Seller shall, at its own expense (except in the case of a
document or instrument that is lost by the Trustee), record or file, as the case
may be, and deliver such document or instrument in accordance with this Section
2.
Documents relating to the Mortgage Loans that are not required
to be delivered to the Trustee, shall be shipped by the Seller to or on behalf
of the Master Servicer, on behalf of the Purchaser, on or prior to the Closing
Date, subject to the requirements of the Primary Servicing Agreement (as defined
in Section 6(j)).
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and the other contents of the related Mortgage File shall be vested in
the Purchaser and its assigns, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller shall immediately vest in the Purchaser and its
assigns, and shall be delivered promptly by the Seller to or on behalf of either
the Trustee or the Master Servicer as set forth herein, subject to the
requirements of the Primary Servicing Agreement. The Seller's and Purchaser's
records shall reflect the transfer of each Mortgage Loan from the Seller to the
Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Purchaser, by the
Seller as provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the
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intention of the parties that such conveyance be deemed a pledge of the Mortgage
Loans and related property by the Seller to the Purchaser to secure a debt or
other obligation of the Seller. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans or any related property is held to be
the property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed to be a grant by the Seller to the Purchaser, of a security
interest in all of the Seller's right, title, and interest, whether now
owned or hereafter acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to
any of the following property: the Mortgage Loans identified
on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and
other insurance policies, all distributions with respect
thereto payable after the Cut-Off Date, all substitute or
replacement Mortgage Loans and all distributions with respect
thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of deposit, goods, letters of credit, advices of credit,
investment property, and other rights arising from or by
virtue of the disposition of, or collections with respect to,
or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the
collateral described in clause (A) above (including any
accrued discount realized on liquidation of any investment
purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the
Mortgage Notes, the Mortgages, and such other goods, letters of credit, advices
of credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be possession by the secured party or possession
by a purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments, receipts, or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of,
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or Persons holding for, the Purchaser or its designee, as applicable, for the
purpose of perfecting such security interest under applicable law.
The Seller shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the property
described above, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. In such case, the Seller shall
file all filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect such security interest in such property. In connection herewith, the
Purchaser shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
Notwithstanding anything to the contrary contained herein, the
Purchaser shall not be required to purchase any Mortgage Loan as to which any
Mortgage Note (endorsed as described in clause (a) above) required to be
delivered to or on behalf of the Trustee or the Master Servicer pursuant to this
Section 2 on or before the Closing Date is not so delivered, or is not properly
executed or is defective on its face, and the Purchaser's acceptance of the
related Mortgage Loan on the Closing Date shall in no way constitute a waiver of
such omission or defect or of the Purchaser's or its successors' and assigns'
rights in respect thereof pursuant to Section 5.
SECTION 3. Examination of Mortgage Files and Due Diligence
Review. The Seller shall (i) deliver to the Purchaser on or before the Closing
Date a diskette acceptable to the Purchaser which contains such information
about the Mortgage Loans as may be reasonably requested by the Purchaser, (ii)
deliver to the Purchaser investor files (collectively the "Collateral
Information") with respect to the assets proposed to be included in the Mortgage
Pool and made available at the Purchaser's headquarters in New York, and (iii)
otherwise cooperate fully with the Purchaser in its examination of the credit
files, underwriting documentation and Mortgage Files for the Mortgage Loans and
its due diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency to examine
and audit all books, records and files pertaining to the Mortgage Loans, the
Seller's underwriting procedures and the Seller's ability to perform or observe
all of the terms, covenants and conditions of this Agreement. Such examinations
and audits shall take place at one or more offices of the Seller during normal
business hours and shall not be conducted in a manner that is disruptive to the
Seller's normal business operations upon reasonable prior advance notice. In the
course of such examinations and audits, the Seller will make available to such
representatives of any of the Purchaser, each Underwriter, the Initial
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Purchaser, the Trustee, the Special Servicer and each Rating Agency reasonably
adequate facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the Mortgage
Loans and the terms of this Agreement, and the Seller shall cooperate fully with
any such examination and audit in all material respects. On or prior to the
Closing Date, the Seller shall provide the Purchaser with all material
information regarding the Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to the Seller's financial condition, financial statements
as provided to the Purchaser or other developments affecting the Seller's
ability to consummate the transactions contemplated hereby or otherwise
affecting the Seller in any material respect.
The Purchaser may exercise any of its rights hereunder through
one or more designees or agents; provided the Purchaser has provided the Seller
with prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information
regarding the Seller that has been delivered into the Purchaser's possession and
that is not otherwise publicly available; provided, however, that such
information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
SECTION 4. Representations and Warranties of the Seller and
the Purchaser.(a) To induce the Purchaser to enter into this Agreement, the
Seller hereby makes for the benefit of the Purchaser and its assigns with
respect to each Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty) each of
the representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on ScheduleA attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
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(i) The Seller is duly organized and is validly existing as a
limited liability company in good standing under the laws of the State
of Delaware. The Seller has the requisite power and authority and
legal right to own the Mortgage Loans and to transfer and convey the
Mortgage Loans to the Purchaser and has the requisite power and
authority to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of,
this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, and assuming the due
authorization, execution and delivery hereof by the Purchaser, this
Agreement constitutes the valid, legal and binding agreement of the
Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws
relating to or affecting the rights of creditors generally, (C)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (D) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification
from liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court, is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such qualifications as may be
required under state securities or blue sky laws, (2) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of
the Mortgage Loans to the Purchaser, (3) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained and (4) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the
Purchaser, nor the execution, delivery or performance of this
Agreement by the Seller, conflicts or will conflict with, results or
will result in a breach of, or constitutes or will constitute a
default under (A) any term or provision of the Seller's articles of
organization or by-laws, (B) any term or provision of any material
agreement, contract, instrument or indenture, to which the Seller is a
party or by which it or any of its assets is bound or results in the
creation or imposition of any lien, charge or encumbrance upon any of
its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, other than pursuant to this Agreement,
or (C) after giving effect to the consents or taking of the actions
contemplated in subsection (iii), any law, rule, regulation, order,
judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Seller or its assets, except
where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of
any lien, charge or encumbrance, will not have a material adverse
effect on the consummation of the
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transactions contemplated hereby by the Seller or its ability to
perform its obligations and duties hereunder or result in any material
adverse change in the business, operations, financial condition,
properties or assets of the Seller, or in any material impairment of
the right or ability of the Seller to carry on its business
substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer
of the Mortgage Loans to the Purchaser or the execution or delivery by,
or enforceability against, the Seller of this Agreement or have an
effect on the financial condition of the Seller that would materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans
pursuant to this Agreement will effect a transfer by the Seller of all
of its right, title and interest in and to the Mortgage Loans to the
Purchaser.
(vii) To the Seller's knowledge, the Seller's Information (as
defined in that certain indemnification agreement, dated July 28, 1999,
between the Seller, Principal Life Insurance Company, the Purchaser,
the Underwriters and the Initial Purchaser (the "Indemnification
Agreement")) relating to the Mortgage Loans does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. Notwithstanding anything
contained herein to the contrary, this subparagraph (vii) shall run
exclusively to the benefit of the Purchaser and no other party.
To induce the Purchaser to enter into this Agreement, the
Seller hereby covenants that the foregoing representations and warranties and
those set forth on Exhibit 2 hereto will be true and correct in all material
respects on and as of the Closing Date with the same effect as if made on the
Closing Date.
Each of the representations, warranties and covenants made by
the Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(b) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date hereof:
(i) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(ii) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the
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execution, delivery and performance of this Agreement and has duly and
validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by the Seller, constitutes
the valid and binding obligation of the Purchaser, enforceable against
it in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court, is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby which has not been obtained or made by the
Purchaser.
(iv) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the Purchaser
will violate the Purchaser's certificate of incorporation or by-laws or
constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which the
Purchaser is a party or which may be applicable to the Purchaser or its
assets.
(v) The Purchaser's execution and delivery of this Agreement
and its performance and compliance with the terms of this Agreement
will not constitute a violation of, any law, rule, writ, injunction, or
any order or decree of any court, or any order or regulation of any
federal, state or municipal government agency having jurisdiction over
the Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the
operation of the Purchaser or its assets or could materially and
adversely affect its ability to perform its obligations and duties
hereunder.
(vi) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
condition of the Purchaser that would materially and adversely affect
the ability of the Purchaser to perform its obligation under this
Agreement.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loans or consummation of any of the transactions
contemplated hereby.
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To induce the Seller to enter into this Agreement, the
Purchaser hereby covenants that the foregoing representations and warranties
will be true and correct in all material respects on and as of the Closing Date
with the same effect as if made on the Closing Date.
Each of the representations and warranties made by the
Purchaser pursuant to this Section 4(b) shall survive the purchase of the
Mortgage Loans.
SECTION 5. Remedies Upon Breach of Representations and
Warranties Made by the Seller.(a) It is hereby acknowledged that the Seller
shall make for the benefit of the holders of the Certificates, whether directly
or by way of assignment of its rights hereunder to the Trustee, the
representations and warranties set forth on Exhibit 2 hereto (each as of the
date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document
required to be delivered to the Trustee pursuant to Section 2 is not delivered
as and when required, not properly executed or is defective on its face, or if
there is a breach of any of the representations and warranties required to be
made by the Seller regarding the characteristics of the Mortgage Loans or the
related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either
case such defect or breach materially and adversely affects the interests of the
holders of the Certificates (a "Material Document Defect" and a "Material
Breach", respectively), the party discovering such Material Document Defect or
Material Breach shall promptly notify the other parties and within 90 days of
the earlier of discovery by the Seller or receipt by the Seller of notice of
such Material Document Defect or such Material Breach , as the case may be, the
Seller shall be required to cure such Material Document Defect or Material
Breach; provided, however, the Purchaser or its assignee shall extend the cure
period an additional 90 days if the Seller certifies to the Purchaser or its
assignee, as applicable, that the Seller has been diligently attempting to cure
such breach within the 90 day period.
The Seller hereby covenants and agrees that, if any such
Material Document Defect or Material Breach cannot be corrected or cured within
the above cure periods, the Seller shall, on or before the termination of such
cure periods, either (i) repurchase the related Mortgage Loan from the Purchaser
or its assignee at the Purchase Price as defined in the Pooling and Servicing
Agreement, or (ii) if within the three-month period commencing on the Closing
Date (or within the two-year period commencing on the Closing Date if the
related Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), at
its option replace any Mortgage Loan to which such defect relates with a
Qualifying Substitute Mortgage Loan. If such defect would cause the Mortgage
Loan to be other than a "qualified mortgage" (as defined in the Code), then
notwithstanding the previous sentence, repurchase or substitution must occur
within 90 days from the date the Seller was notified of the defect. The Seller
agrees that any such substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
The obligations of the Seller set forth in this Section 5(b)
to cure a Material Document Defect or a Material Breach or repurchase or replace
a defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document
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Defect or Material Breach or breach of the representations and warranties set
forth in Exhibit2 hereto in respect of an outstanding Mortgage Loan; provided,
that this limitation shall not in any way limit the Purchaser's rights or
remedies upon breach of any other representation or warranty or covenant by the
Seller set forth in this Agreement (other than those set forth in Exhibit 2).
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the Master Servicer or the Special Servicer on its behalf) shall
give prompt written notice to the Seller of its discovery of any Material
Document Defect or Material Breach and prompt written notice to the Seller in
the event that any Mortgage Loan becomes a Specially Serviced Mortgage Loan (as
defined in the Pooling and Servicing Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to
this Section 5, the Purchaser or its assignee, following receipt by the Trustee
of the Purchase Price therefor, promptly shall deliver or cause to be delivered
to the Seller, all Mortgage Loan documents with respect to such Mortgage Loan,
and each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Trustee shall be endorsed and assigned to the Seller in the
same manner such that the Seller shall be vested with legal and beneficial title
to such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such mortgage or proceeds of any insurance policies with
respect thereto.
SECTION 6. Closing. The closing of the sale of the Mortgage
Loans shall be held at the offices of Latham & Watkins, 885 Third Avenue, New
York, NY 10022 at 9:00 a.m., New York time, on the Closing Date.
The closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller
and the Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date (to the extent of
the standard, if any, set forth in each representation and warranty).
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and reasonably acceptable to the
Seller or the Purchaser, as applicable, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the
Purchaser or its designee all documents required to be delivered to the
Purchaser as of the Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller's Information to be
disclosed in the Memorandum and the Prospectus Supplement.
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(e) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been complied with,
and the Seller and the Purchaser shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable
by it to the Purchaser pursuant to Section8 hereof.
(g) The Certificates to be so rated shall have been assigned
ratings by each Rating Agency no lower than the ratings specified for each such
Class in the Memorandum and the Prospectus Supplement.
(h) Neither Underwriter shall have terminated the Underwriting
Agreement and neither Initial Purchaser shall have terminated the Certificate
Purchase Agreement.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section1 hereof.
(j) The Master Servicer and Principal Capital Management, LLC
shall have entered into a primary servicing agreement as contemplated by the
Engagement Letter described in Section 8 herein (such agreement, the "Primary
Servicing Agreement").
All parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall
consist of the following:
(a) This Agreement duly executed by the Purchaser and the
Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles
of organization and limited liability company operating agreement.
(d) A certificate of existence for the Seller from the
Secretary of State of Delaware dated not earlier than 30 days prior to the
Closing Date.
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(e) A certificate of the Secretary or Assistant Secretary of
the Seller, dated the Closing Date, and upon which the Purchaser may rely, to
the effect that each individual who, as an officer or representative of the
Seller, signed this Agreement or any other document or certificate delivered on
or before the Closing Date in connection with the transactions contemplated
herein, was at the respective times of such signing and delivery, and is as of
the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under Delaware law and has
full power as a limited liability company and authority to enter into
and perform its obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(iii) No consent, approval, authorization or order of any
federal court or governmental agency or body is required for the
consummation by the Seller of the transactions contemplated by the
terms of this Agreement except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of
the transactions contemplated by the terms of this Agreement (A)
conflicts with or results in a breach or violation of, or constitute a
default under, the organizational documents of the Seller, (B) to the
knowledge of such counsel, constitutes a default under any term or
provision of any material agreement, contract, instrument or indenture,
to which the Seller is a party or by which it or any of its assets is
bound or result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant
to this Agreement, or (C) conflicts with or results in a breach or
violation of any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict,
breach or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the
consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations
and duties hereunder or result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Seller, or in any material impairment of the right or ability of the
Seller to carry on its business substantially as now conducted
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(v) To his or her knowledge, there are no legal or
governmental actions, investigations or proceedings pending to which
the Seller is a party, or threatened against the Seller, (a) asserting
the invalidity of this Agreement or (b) which materially and adversely
affect the performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of
the Seller, enforceable against the Seller in accordance with its
terms, except as such enforcement may be limited by (1) laws relating
to bankruptcy, insolvency, reorganization, receivership or moratorium,
(2) other laws relating to or affecting the rights of creditors
generally, (3) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law) or (4)
public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of this Agreement that purport to provide
indemnification from liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters
on, among other things specified in such opinion, the representations and
warranties made by, and on certificates or other documents furnished by officers
of, the parties to this Agreement.
In rendering the opinions expressed above, such counsel may
limit such opinions to matters governed by the federal laws of the United States
and the corporate laws of the State of Delaware and the State of New York, as
applicable.
(g) Such other opinions of counsel as any Rating Agency may
request in connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller's execution and delivery of, or performance under, this
Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or
others and such other documents to evidence fulfillment of the conditions set
forth in this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Bill of Sale in the form attached hereto as
Exhibit 4.
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SECTION 8. Costs. The Seller shall pay the Purchaser the costs
and expenses specified in the Engagement Letter dated July 15, 1999 between the
Seller and the Purchaser.
SECTION 9. Notices. All communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if (a) personally delivered, (b) mailed by registered or certified mail,
postage prepaid and received by the addressee, (c) sent by express courier
delivery service and received by the addressee, or (d) transmitted by telex or
facsimile transmission (or any other type of electronic transmission agreed upon
by the parties) and confirmed by a writing delivered by any of the means
described in (a), (b) or (c), if (i) to the Purchaser, addressed to Morgan
Stanley Capital I Inc., 1585 Broadway, New York, New York 10036, Attention:
Pamela Hudson, with a copy to Morgan Stanley Capital I Inc., 1585 Broadway, New
York, New York 10036, Attention: General Counsel (or such other address as may
hereafter be furnished in writing by the Purchaser), or (ii) if to the Seller,
addressed to the Seller at Principal Commercial Funding, LLC, 711 High Street,
Des Moines, Iowa 50392-0001, Attention: Patrick G. Halter, (or to such other
address as the Seller may designate in writing with copies to the attention of
Karen A. Pearston, Esq.).
SECTION 10. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 11. Further Assurances. The Seller and the Purchaser
each agree to execute and deliver such instruments and take such actions as the
other may, from time to time, reasonably request in order to effectuate the
purpose and to carry out the terms of this Agreement and the Pooling and
Servicing Agreement.
SECTION 12. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
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SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS,
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE
OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that the rights and obligations of the
Purchaser pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12
hereof may be assigned to the Trustee as may be required to effect the purposes
of the Pooling and Servicing Agreement and, upon such assignment, the Trustee
shall succeed to the rights and obligations hereunder of the Purchaser. No owner
of a Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
SECTION 15. Miscellaneous. This Agreement may be executed in
two or more counterparts, each of which when so executed and delivered shall be
an original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
SECTION 16. Entire Agreement. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof (other than the Engagement Letter referred to in
Section 8 above, the Letter of Understanding, the Indemnification Agreement and
the Pooling and Servicing Agreement), and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any course
of performance or usage of the trade inconsistent with any of the terms hereof.
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IN WITNESS WHEREOF, the Purchaser and the Seller have caused
this Agreement to be executed by their respective duly authorized officers as of
the date first above written.
PRINCIPAL COMMERCIAL FUNDING, LLC
By:______________________________________
Name:
Title
By:______________________________________
Name:
Title
MORGAN STANLEY CAPITAL I INC.
By:______________________________________
Name: Russell Rahbany
Title: Vice President
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EXHIBIT 1
MORTGAGE LOAN SCHEDULE
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(Representations and Warranties with respect to Principal Loans)
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule is complete, true and correct in all material respects as
of the date of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan
is a whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and
interest under any Mortgage Loan was 30 days or more past due as of the Cut-Off
Date, and no Mortgage Loan was 30 days or more delinquent in the twelve-month
period immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and, subject
to the exceptions set forth in paragraph 13 below, enforceable first priority
lien upon the related Mortgaged Property, prior to all other liens and
encumbrances, except for (a) the lien for current real estate taxes and
assessments not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters that are of public record and/or are
referred to in the related lender's title insurance policy, (c) exceptions and
exclusions specifically referred to in such lender's title insurance policy, and
(d) other matters to which like properties are commonly subject, none of which
matters referred to in clauses (b), (c) or (d) materially interferes with the
security intended to be provided by such Mortgage, the marketability or current
use of the Mortgaged Property or the current ability of the Mortgaged Property
to generate operating income sufficient to service the Mortgage Loan debt (the
foregoing items (a) through (d) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security interest in
favor of the holder
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thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate, the related Mortgaged Property. A Uniform
Commercial Code financing statement has been filed and/or recorded in all places
necessary to perfect a valid security interest in such personal property, to the
extent a security interest may be so created therein, and such security interest
is a first priority security interest, subject to any prior purchase money
security interest in such personal property and any personal property leases
applicable to such personal property. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in rents or
other personal property to the extent that possession or control of such items
or actions other than the filing of Uniform Commercial Code financing statements
are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases
set forth in the Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien and
first priority security interest in the related Mortgagor's interest in all
leases, sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage has been executed and delivered in favor of the Trustee
and is in recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has
been satisfied, cancelled, rescinded or subordinated in whole or in material
part, and the related Mortgaged Property has not been released from the lien of
such Mortgage, in whole or in material part, nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release, except for any partial reconveyances of real property
which are included in the related Mortgage File. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived,
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File.
7. Condition of Property; Condemnation. Except as set forth in
an engineering report prepared in connection with the origination of the related
Mortgage Loan, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage that would materially and adversely affect its value as
security for the related Mortgage Loan. The Seller has received no notice of the
commencement of any proceeding for the condemnation of all or any material
portion of any Mortgaged Property. To the Seller's knowledge (based on surveys
and/or title insurance obtained in connection with the origination of the
Mortgage Loans), as of the date of the origination of each Mortgage Loan, all of
the material improvements on the related Mortgaged Property which were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon
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such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy (the "Title Policy") in the original principal amount of the
related Mortgage Loan after all advances of principal. Each Title Policy insures
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein (or an escrow letter or
a marked up title insurance commitment on which the required premium has been
paid exists which evidences that such Title Policy will be issued). Each Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid and no material
claims have been made thereunder and no claims have been paid thereunder. No
mortgagee under the related Mortgage has done, by act or omission, anything that
would materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Mortgage Loan to the
Trustee, such Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of the Trustee without the consent
of or notice to the insurer. To the Seller's knowledge, the insurer issuing such
Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been
fully disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
funds escrowed for such purpose that were to have been complied with on or
before the Closing Date have been complied with, or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for
each Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of
trust, (1) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (2) no fees or expenses
are payable to such trustee by the Seller, the Purchaser or any transferee
thereof except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions. An environmental site assessment
was performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse
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environmental condition or circumstance affecting any Mortgaged Property that
was not disclosed in such report. Each Mortgage requires the related Mortgagor
to comply with all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a material and
adverse environmental condition or circumstance affecting any Mortgaged
Property, (i) a party not related to the Mortgagor was identified as the
responsible party for such condition or circumstance, (ii) recourse to a
clean-up remediation or reimbursement fund was available under applicable state
law, (iii) state law provides for a mechanism implemented by the related
Mortgagor by which such environmental condition or circumstance is brought into
compliance with applicable law and does not pose an imminent threat to health or
safety, (iv) environmental insurance covering such condition was obtained or
must be maintained until the condition is remediated, or (v) the related
Mortgagor was required either to provide additional security which was deemed to
be sufficient by the originator in light of the circumstances and/or to obtain
an operations and maintenance plan.
13. Loan Document Status. Each Mortgage Note, Mortgage and
other agreement that evidences or secures a Mortgage Loan and that was executed
by or on behalf of the related Mortgagor is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements.
14. Insurance. Each Mortgaged Property is, and is required
pursuant to the related Mortgage, to be insured by (a) a fire and extended
perils insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles and smoke, and, to the extent
required as of the date of origination by the originator of such Mortgage Loan
consistent with its normal commercial mortgage lending practices, against other
risks insured against by persons operating like properties in the locality of
the Mortgaged Property in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the Mortgaged
Property, and not less than the amount necessary to avoid the operation of any
co-insurance provisions with respect to the Mortgaged Property; (b) a business
interruption or rental loss insurance policy, in an amount at least equal to six
months of operations of the Mortgaged Property; (c) a flood insurance policy (if
any portion of buildings or other structures on the Mortgaged Property are
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards); and (d) a comprehensive general liability
insurance policy in amounts as are generally required by commercial mortgage
lenders, and in any event not less than $1 million per occurrence. Such
insurance policy contains a standard mortgagee clause that names the mortgagee
as an additional insured and requires prior notice to the holder of the Mortgage
of termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related
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Mortgagor to maintain all such insurance and, upon such Mortgagor's failure to
do so, authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from such
Mortgagor. Each Mortgage provides that casualty insurance proceeds will be
applied either to the restoration or repair of the related Mortgaged Property or
to the reduction of the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are
no delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property which are or may become a lien of priority equal to or higher than the
lien of the related Mortgage. For purposes of this representation and warranty,
real property taxes and assessments shall not be considered unpaid until the
date on which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to the Seller's
knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple estate.
18. Escrow Deposits. All escrow deposits and payments relating
to each Mortgage Loan that are, as of the Closing Date, required to be deposited
or paid have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property having a fair market value (i) at the date the
Mortgage Loan was originated, at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (ii) at the Closing Date, at least
equal to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (x) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (a)(i) and (a)(ii) of
this paragraph 19 shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans); or (b) substantially all the proceeds of such Mortgage Loan
were used to acquire, improve or protect the real property which served as the
only security for such Mortgage Loan (other than a recourse feature or other
third party credit enhancement within the meaning of Treasury Regulations
Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default or reasonably foreseeable default of such Mortgage Loan or (b)
satisfies the provisions of either clause (a)(i) of
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paragraph 19 (substituting the date of the last such modification for the date
the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19, including
the proviso thereto.
21. Advancement of Funds by the Seller. No holder of a
Mortgage Loan has advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by such
Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and
clear of any and all mechanics' and materialmen's liens that are prior or equal
to the lien of the related Mortgage, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied
with all applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the
next sentence, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property that was included
in the appraisal for such Mortgaged Property, and/or generates income from the
lien of the related Mortgage except upon payment in full of all amounts due
under the related Mortgage Loan. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a release
price and prepayment consideration in connection therewith. . Except as
described in the first sentence hereof and for those Mortgage Loans identified
on Schedule A, no Mortgage Loan permits the release or substitution of
collateral unless the mortgagee can require the Borrower to provide an opinion
of tax counsel to the effect that such release or substitution of collateral (a)
would not constitute a "significant modification" of such Mortgage Loan within
the meaning of Treas. Reg. ss.1.1001-3 and (b) would not cause such Mortgage
Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the lender or provides for
negative amortization or for any contingent or additional interest in the form
of participation in the cash flow of the related Mortgaged Property.
27. No Material Default. To the Seller's knowledge, there
exists no material default, breach, violation or event of acceleration (and no
event which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided,
2-6
<PAGE>
however, that this representation and warranty does not address or otherwise
cover any default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any of paragraphs 3, 7, 12, 14, 15, 16 and 17 of
this Exhibit 2.
28. Inspections. The Seller (or if the Seller is not the
originator, the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of the
related Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part of
each Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal or internal or external market study performed at origination.
30. Junior Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any lien junior to or of equal
priority with the lien of the related Mortgage without the prior written consent
of the holder thereof or the satisfaction of debt service coverage or similar
criteria specified therein. The Seller has no knowledge that any of the
Mortgaged Properties is encumbered by any lien junior to the lien of the related
Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor or
related Mortgaged Property that might adversely affect title to the Mortgage
Loan or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by
the Seller have been in all material respects legal, proper and prudent and have
met customary industry standards.
33. Licenses and Permits. To the Seller's knowledge, based on
due diligence that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage Loan, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgage Property as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged
Property is operated as an assisted living facility, to the Seller's knowledge
(a) the related Mortgagor is in compliance in all material respects with all
federal and state laws applicable to the use and operation of the related
Mortgaged Property and (b) if the operator of the Mortgaged Property
participates in Medicare or Medicaid programs, the facility is in compliance in
all material respects with the requirements for participation in such programs.
2-7
<PAGE>
35. Collateral in Trust. The Mortgage Note for each Mortgage
Loan is not secured by any collateral that is not included in the Trust.
36. Valid Assignment. The assignment of the related Mortgage
in favor of the Trustee constitutes a legal, valid and binding assignment by the
Seller.
37. Due on Sale. Each Mortgage Loan contains a "due on sale"
clause, which provides for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any material
portion thereof, is transferred, sold or encumbered by a junior mortgage or deed
of trust; provided, however, that certain Mortgage Loans provide a mechanism for
the assumption of the loan by a third party upon the Mortgagor's satisfaction of
certain conditions precedent, and upon payment of a transfer fee, if any, or
transfer of interests in the Mortgagor or constituent entities of the Mortgagor
to a third party or parties related to the Mortgagor upon the Mortgagor's
satisfaction of certain conditions precedent.
38. Non-Recourse Exceptions. The Mortgage Loan documents for
each Mortgage Loan provide that such Mortgage Loan constitutes the non-recourse
obligations of the related Mortgagor and non-recourse guarantors, if any, except
that either (i) such provision does not apply in the case of fraud by the
Mortgagor or (ii) such documents provide that the Mortgagor shall be liable to
the holder of the Mortgage Loan for losses incurred as a result of fraud by the
Mortgagor.
2-8
<PAGE>
Schedule A
Exceptions to Representations and Warranties
<PAGE>
EXHIBIT 3
PRICING FORMULATION
3-1
<PAGE>
EXHIBIT 4
BILL OF SALE
1. PARTIES. The parties to this Bill of Sale are the
following:
Seller: Principal Commercial Funding, LLC
Purchaser: Morgan Stanley Capital I Inc.
2. SALE. For value received, the Seller hereby conveys to the
Purchaser, without recourse, all right, title and interest in and to the
Mortgage Loans identified on Exhibit 1 (the "Mortgage Loan Schedule") to the
Mortgage Loan Purchase Agreement, dated as of July 28, 1999 (the "Mortgage Loan
Purchase Agreement"), between the Seller and the Purchaser and all of the
following property:
(a) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the Mortgage Loan
Schedule including the related Mortgage Notes, Mortgages, security
agreements, and title, hazard and other insurance policies, all
distributions with respect thereto payable after the Cut-Off Date, all
substitute or replacement Mortgage Loans and all distributions with
respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property, and other rights arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable with
respect to, or claims against other Persons with respect to, all or any
part of the collateral described in clause (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the collateral described
in clauses(a) and (b) above.
3. PURCHASE PRICE. The amount set forth on Exhibit 3 to the
Mortgage Loan Purchase Agreement.
4. DEFINITIONS. Terms used but not defined herein shall have
the meanings assigned to them in the Mortgage Loan Purchase Agreement.
4-1
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this
Bill of Sale to be duly executed and delivered on this __ day of August, 1999.
SELLER: PRINCIPAL COMMERCIAL FUNDING, LLC
By:______________________________________
Name:
Title
By:______________________________________
Name:
Title
PURCHASER: MORGAN STANLEY CAPITAL I INC.
By:______________________________________
Name: Russell Rahbany
Title: Vice President
4-2
<PAGE>
Schedule B
Loans with August 5th Cut-Off Dates
Control No. Loan Name
35 Indian Ridge Apartments
72 200 Forest Drive
84 Citrus Village Shopping Center
88 7 Holland
92 Eastgate Village Shopping Center
120 6 Corporate Drive
<PAGE>
EXHIBIT K-2
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT II
K-2-1
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
(JHREF LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of July 28,
1999, between John Hancock Real Estate Finance Inc. (the "Seller"), and Morgan
Stanley Capital I Inc. (the "Purchaser").
The Seller agrees to sell and the Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. The Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of August 1, 1999 (the "Cut-Off Date"),
between the Purchaser, as depositor, Wells Fargo Bank, National Association, as
master servicer (the "Master Servicer") and as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee"), and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). In exchange for the
Mortgage Loans and certain other mortgage loans to be purchased by the
Purchaser (collectively the "Other Mortgage Loans"), the Trust will issue to
the Depositor pass-through certificates to be known as Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-LIFE1 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class B, Class C, Class D and Class E
Certificates (the "Public Certificates") will be sold by the Purchaser to
Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co. (the
"Underwriters"), pursuant to an Underwriting Agreement, between the Purchaser
and the Underwriters, dated July 28, 1999 (the "Underwriting Agreement"), and
the Class X, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class R-I, Class R-II and Class R-III Certificates
(the "Private Certificates") will be sold by the Purchaser to Morgan Stanley &
Co. Incorporated (the "Initial Purchaser") pursuant to a Certificate Purchase
Agreement, between the Purchaser and the Initial Purchaser, dated July 28, 1999
(the "Certificate Purchase Agreement"). The Underwriters will offer the Public
Certificates for sale publicly pursuant to a Prospectus dated July 19, 1999, as
supplemented by a Prospectus Supplement dated July 28, 1999 (together, the
"Prospectus Supplement"), and will offer the Private Certificates for sale in
transactions exempt from the registration requirements of the Securities Act of
1933 pursuant to a Private Placement Memorandum dated July 28, 1999 (the
"Memorandum").
In consideration of the mutual agreements contained herein, the Seller
and the Purchaser hereby agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on a servicing released basis (but subject to the
designation of the Seller as primary servicer (the "Primary Servicer") under the
Pooling and Servicing Agreement as enduring Primary Servicer), the Mortgage
Loans identified on the schedule (the "Mortgage Loan Schedule") annexed hereto
as Exhibit 1, as such schedule may be amended to reflect the
<PAGE>
actual Mortgage Loans accepted by the Purchaser pursuant to the terms hereof.
The Mortgage Loans will have an aggregate principal balance as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not received, of $173,161,737. The sale of the
Mortgage Loans shall take place on August 10, 1999 or such other date as shall
be mutually acceptable to the parties hereto (the "Closing Date"). The purchase
price to be paid by the Purchaser for the Mortgage Loans shall equal the amount
set forth as such purchase price on Exhibit 3 hereto. Such purchase price shall
be paid to the Seller by wire transfer in immediately available funds on the
Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 14), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 14).
SECTION 2. Conveyance of Mortgage Loans. Effective as of the
Closing Date, subject only to receipt of the consideration referred to in
Section 1 hereof and the satisfaction of the conditions specified in Sections 6
and 7 hereof, the Seller does hereby transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule
as of the Closing Date. The Mortgage Loan Schedule, as it may be amended from
time to time, on or prior to the Closing Date shall conform to the requirements
of this Agreement and the Pooling and Servicing Agreement. In connection with
such transfer and assignment, the Seller shall deliver to or on behalf of the
Trustee, on behalf of the Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage Loan. In
addition, not later than the 30th day following the Closing Date, the Seller
shall deliver to or on behalf of the Trustee each of the remaining documents or
instruments specified below (with such exceptions as are permitted by this
Section) with respect to each Mortgage Loan (each, a "Mortgage File"). (The
Seller acknowledges that the term "without recourse" does not modify the duties
of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to
the Closing Date are to be held by or on behalf of the Trustee in escrow on
behalf of the Seller at all times prior to the Closing Date. The Mortgage Files
shall be released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of LaSalle Bank National Association,
as Trustee for Morgan Stanley Capital I, Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1, without recourse, representation or warranty"
or if the original Mortgage Note is not included therein, then a lost note
affidavit, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of
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<PAGE>
attorney certified by the public recorder's office, with evidence of recording
thereon, (if recording is customary in the jurisdiction in which such power of
attorney was executed), or certified by a title insurance company or escrow
company to be a true copy thereof; provided that if such original Mortgage
cannot be delivered with evidence of recording thereon on or prior to the 30th
day following the Closing Date because of a delay caused by the public recording
office where such original Mortgage has been delivered for recordation or
because such original Mortgage has been lost, the Seller shall deliver or cause
to be delivered to the Trustee a true and correct copy of such Mortgage,
together with (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
original Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original Mortgage that has been lost after
recordation, a certification by the appropriate county recording office where
such Mortgage is recorded that such copy is a true and complete copy of the
original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon, or if such original modification,
consolidation and extension agreements have been delivered to the appropriate
recording office for recordation and either has not yet been returned with
evidence of recordation thereon or has been lost after recordation, true copies
of such modifications, consolidations and extensions certified by the Seller
together with (i) in the case of a delay caused by the public recording office,
an Officer's Certificate of the Seller stating that such original modification,
consolidation or extension agreement has been dispatched or sent to the
appropriate public recording official for recordation or (ii) in the case of an
original modification, consolidation or extension agreement that has been lost
after recordation, a certification by the appropriate county recording office
where such document is recorded that such a copy is a true and complete copy of
the original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any, each signed by the holder of
record in favor of "LaSalle Bank National Association, as Trustee for Morgan
Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-LIFE1";
(d) An original Assignment of Mortgage for each Mortgage Loan,
in form and substance acceptable for recording, signed by the holder of record
in favor of "LaSalle Bank National Association, as Trustee for Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-LIFE1";
(e) Originals of all intervening assignments of Mortgage, if
any, with evidence of recording thereon or, if such original assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such assignments of Mortgage certified by
the Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by the Seller, a copy thereof certified by the Seller or, if
any original intervening assignment of Mortgage has not yet been returned from
the applicable recording office or has been lost, a true and correct copy
thereof, together with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Seller stating that such original
intervening assignment of Mortgage has been sent to the appropriate public
recording official for recordation or (ii) in the case of an original
intervening Assignment of Mortgage that
3
<PAGE>
has been lost after recordation, a certification by the appropriate county
recording office where such assignment is recorded that such copy is a true and
complete copy of the original recorded intervening Assignment of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such Assignment of Leases
certified by the Seller to be a true and complete copy of the original
Assignment of Leases submitted for recording, together with (i) an original of
each assignment of such Assignment of Leases with evidence of recording thereon
and showing a complete recorded chain of assignment from the named assignee to
the holder of record, and if any such assignment of such Assignment of Leases
has not been returned from the applicable public recording office, a copy of
such assignment certified by the Seller to be a true and complete copy of the
original assignment submitted for recording, and (ii) an original assignment of
such Assignment of Leases, in recordable form, signed by the holder of record in
favor of "LaSalle Bank National Association, as Trustee for Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-LIFE1," which assignment may be effected in the related Assignment of
Mortgage;
(g) The original of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(i) UCC financing statements (together with all assignments
thereof to the Trustee) executed and delivered in connection with any Mortgage
Loan;
(j) Copies of ground leases, if any, related to any Mortgage
Loan where the Mortgagor is the lessee under such lease and there is a lien in
favor of the mortgagee in such lease;
(k) copies of any lock-box agreements and intercreditor
agreements, if any, related to any Mortgage Loan; and
(l) a copy of each Letter of Credit, if any, constituting
additional collateral for such Mortgage Loan, together with the original
supporting documentation evidencing a beneficial transfer, in favor of LaSalle
Bank National Association, as Trustee for Morgan Stanley Capital Inc.,
Commercial Pass-Through Certificates, Series 1999-LIFE1; provided, however, the
Trustee shall hold such Letter of Credit only in a custodian capacity and shall
have no obligation to maintain, extend the term of, enforce, or otherwise
preserve any rights under such Letter of Credit;
4
<PAGE>
The original of each Letter of Credit referred to in clause
(l) above shall be delivered to the Primary Servicer within 45 days of the
Closing Date.
"Officer's Certificate" shall mean a certificate signed by one
or more of the Chairman of the Board, any Vice Chairman, the President, any
Senior Vice President, any Vice President, any Assistant Vice President, any
Treasurer or any Assistant Treasurer.
The Assignments of Mortgage, assignment of Assignment of
Leases and assignment of UCC financing statement referred to in clauses (d),
(e), (f) and (i) may be in the form of a single instrument assigning the
Mortgage, Assignment of Leases and UCC financing statement to the extent
permitted by applicable law. The Seller will deliver the original Mortgage Note
to the Trustee, on behalf of the Purchaser, endorsed, to effect the transfer to
the Purchaser of the Mortgage Notes and all related deeds of trust, mortgages
and other loan documents specified above. Concurrently herewith, the Purchaser
has contracted to sell the Mortgage Loans to the Trustee on behalf of the
Certificateholders. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, the Seller shall
execute, in accordance with the third succeeding paragraph, the assignments of
mortgages, the assignments of leases (to the extent separate from the mortgages)
and assignments of UCC financing statements relating to the Mortgage Loans
naming the Trustee on behalf of the Certificateholders as assignee.
Notwithstanding the fact that such assignments of mortgages, assignments of
leases (to the extent separate from the assignments of mortgages) and the
assignments of UCC financing statements shall name the Trustee on behalf of the
Certificateholders as the assignee, the parties hereto acknowledge and agree
that the Mortgage Loans shall for all purposes be deemed to have been
transferred from the Seller to the Purchaser and from the Purchaser to the
Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, to the
Trustee any of the documents or instruments referred to in clause (b), (c), (e)
or (f) with evidence of recording thereon for any other reason, or if the Seller
has not delivered, or caused to be delivered, to the Trustee the original
thereof with evidence of recording thereon within 45 days of the Closing Date,
the Seller shall deliver or cause to be delivered to the Trustee a photocopy of
such document or instrument with evidence of recording thereon and certified by
the appropriate county recorder's office be a true and complete copy of the
original thereof submitted for recording.
If the Seller cannot deliver, or cause to be delivered, as to
any Mortgage Loan, any of the documents and/or instruments referred to in
clauses(b), (c), (e) or (f), with evidence of recording thereon, solely because
of a delay caused by the public recording office where such document or
instrument has been delivered for recordation within such 45 day period, but the
Seller delivers a photocopy thereof (certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording), to the Trustee within such 45 day period, the Seller
shall then deliver within 90 days after the Closing Date the recorded document
(or within such longer period after the Closing Date as the Trustee may
5
<PAGE>
consent to, which consent shall not be unreasonably withheld so long as the
Seller is, as certified in writing to the Trustee no less often than monthly, in
good faith attempting to obtain from the appropriate county recorder's office
such original or photocopy).
The Trustee, as assignee or transferee of the Depositor, shall
be entitled to all scheduled payments of principal due after the Cut-Off Date,
all other payments of principal collected after the Cut-Off Date (other than
scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver and the Purchaser, the Trustee or the agents of either may submit or
cause to be submitted for recordation at the expense of the Seller, in the
appropriate public office for real property records, each assignment referred to
in clauses (d) and (f)(ii) above. Within 90 days following the Closing Date, the
Seller shall deliver and the Purchaser, the Trustee or the agents of either may
submit or cause to be submitted for filing, at the expense of the Seller, in the
appropriate public office for Uniform Commercial Code financing statements, the
assignment referred to in clause (i) above. If any such document or instrument
is lost or returned unrecorded or unfiled, as the case may be, because of a
defect therein, the Seller shall prepare a substitute therefor or cure such
defect, and the Seller shall, at its own expense (except in the case of a
document or instrument that is lost by the Trustee), record or file, as the case
may be, and deliver such document or instrument in accordance with this Section
2.
Documents relating to the Mortgage Loans that are not required
to be delivered to the Trustee, shall be shipped by the Seller to or on behalf
of the Master Servicer, on behalf of the Purchaser, on or prior to the Closing
Date, subject to the requirements of the Primary Servicing Agreement (as defined
in Section 6(j)).
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and the other contents of the related Mortgage File shall be vested in
the Purchaser and its assigns, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller shall immediately vest in the Purchaser and its
assigns, and shall be delivered promptly by the Seller to or on behalf of either
the Trustee or the Master Servicer as set forth herein, subject to the
requirements of the Primary Servicing Agreement. The Seller's and Purchaser's
records shall reflect the transfer of each Mortgage Loan from the Seller to the
Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Purchaser, by the
Seller as provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any
6
<PAGE>
related property is held to be the property of the Seller, or if for any other
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans or any related property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed to be a grant by the Seller to the Purchaser, of a security
interest in all of the Seller's right, title, and interest, whether now
owned or hereafter acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to
any of the following property: the Mortgage Loans identified
on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and
other insurance policies, all distributions with respect
thereto payable after the Cut-Off Date, all substitute or
replacement Mortgage Loans and all distributions with respect
thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of deposit, goods, letters of credit, advices of credit,
investment property, and other rights arising from or by
virtue of the disposition of, or collections with respect to,
or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the
collateral described in clause (A) above (including any
accrued discount realized on liquidation of any investment
purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the
Mortgage Notes, the Mortgages, and such other goods, letters of credit, advices
of credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be possession by the secured party or possession
by a purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments, receipts, or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or Persons
holding for, the Purchaser or its designee, as applicable, for the purpose of
perfecting such security interest under applicable law.
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The Seller shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the property
described above, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. In such case, the Seller shall
file all filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect such security interest in such property. In connection herewith, the
Purchaser shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
Notwithstanding anything to the contrary contained herein, the
Purchaser shall not be required to purchase any Mortgage Loan as to which any
Mortgage Note (endorsed as described in clause (a) above) required to be
delivered to or on behalf of the Trustee or the Master Servicer pursuant to this
Section 2 on or before the Closing Date is not so delivered, or is not properly
executed or is defective on its face, and the Purchaser's acceptance of the
related Mortgage Loan on the Closing Date shall in no way constitute a waiver of
such omission or defect or of the Purchaser's or its successors' and assigns'
rights in respect thereof pursuant to Section 5.
SECTION 3. Examination of Mortgage Files and Due Diligence
Review. The Seller shall (i) deliver to the Purchaser on or before the Closing
Date a diskette acceptable to the Purchaser which contains such information
about the Mortgage Loans as may be reasonably requested by the Purchaser, (ii)
deliver to the Purchaser investor files (collectively the "Collateral
Information") with respect to the assets proposed to be included in the Mortgage
Pool and made available at the Purchaser's headquarters in New York, and (iii)
otherwise cooperate fully with the Purchaser in its examination of the credit
files, underwriting documentation and Mortgage Files for the Mortgage Loans and
its due diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency to examine
and audit all books, records and files pertaining to the Mortgage Loans, the
Seller's underwriting procedures and the Seller's ability to perform or observe
all of the terms, covenants and conditions of this Agreement. Such examinations
and audits shall take place at one or more offices of the Seller during normal
business hours and shall not be conducted in a manner that is disruptive to the
Seller's normal business operations upon reasonable prior advance notice. In the
course of such examinations and audits, the Seller will make available to such
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency reasonably
adequate facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the Mortgage
Loans and the terms of this Agreement, and the
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Seller shall cooperate fully with any such examination and audit in all material
respects. On or prior to the Closing Date, the Seller shall provide the
Purchaser with all material information regarding the Seller's financial
condition and access to knowledgeable financial or accounting officers for the
purpose of answering questions with respect to the Seller's financial condition,
financial statements as provided to the Purchaser or other developments
affecting the Seller's ability to consummate the transactions contemplated
hereby or otherwise affecting the Seller in any material respect.
The Purchaser may exercise any of its rights hereunder through
one or more designees or agents; provided the Purchaser has provided the Seller
with prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information
regarding the Seller that has been delivered into the Purchaser's possession and
that is not otherwise publicly available; provided, however, that such
information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
SECTION 4. Representations and Warranties of the Seller and
the Purchaser.(a) To induce the Purchaser to enter into this Agreement, the
Seller hereby makes for the benefit of the Purchaser and its assigns with
respect to each Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty) each of
the representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on ScheduleA attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
The Seller has the requisite
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power and authority and legal right to own the Mortgage Loans and to
transfer and convey the Mortgage Loans to the Purchaser and has the
requisite power and authority to execute and deliver, engage in the
transactions contemplated by, and perform and observe the terms and
conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, and assuming the due
authorization, execution and delivery hereof by the Purchaser, this
Agreement constitutes the valid, legal and binding agreement of the
Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws
relating to or affecting the rights of creditors generally, (C) general
equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law) or (D) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions
of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court, is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such qualifications as may be
required under state securities or blue sky laws, (2) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (3) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained and (4) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the
Purchaser, nor the execution, delivery or performance of this Agreement
by the Seller, conflicts or will conflict with, results or will result
in a breach of, or constitutes or will constitute a default under (A)
any term or provision of the Seller's articles of organization or
by-laws, (B) any term or provision of any material agreement, contract,
instrument or indenture, to which the Seller is a party or by which it
or any of its assets is bound or results in the creation or imposition
of any lien, charge or encumbrance upon any of its property pursuant to
the terms of any such indenture, mortgage, contract or other
instrument, other than pursuant to this Agreement, or (C) after giving
effect to the consents or taking of the actions contemplated in
subsection (iii), any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict,
breach or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the
consummation of the transactions contemplated hereby by the Seller or
its ability to perform its obligations and duties hereunder or result
in any material adverse change in the business, operations,
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financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer
of the Mortgage Loans to the Purchaser or the execution or delivery by,
or enforceability against, the Seller of this Agreement or have an
effect on the financial condition of the Seller that would materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans
pursuant to this Agreement will effect a transfer by the Seller of all
of its right, title and interest in and to the Mortgage Loans to the
Purchaser.
(vii) To the Seller's knowledge, the JHREF's Information (as
defined in that certain indemnification agreement, dated July 28, 1999,
between the Seller, the Purchaser, the Underwriters and the Initial
Purchaser (the "Indemnification Agreement")) relating to the Mortgage
Loans does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. Notwithstanding anything contained herein to the contrary,
this subparagraph (vii) shall run exclusively to the benefit of the
Purchaser and no other party.
To induce the Purchaser to enter into this Agreement, the
Seller hereby covenants that the foregoing representations and warranties and
those set forth on Exhibit 2 hereto will be true and correct in all material
respects on and as of the Closing Date with the same effect as if made on the
Closing Date.
Each of the representations, warranties and covenants made by
the Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(b) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date hereof:
(i) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(ii) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution
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and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court, is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby which has not been obtained or made by the
Purchaser.
(iv) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the Purchaser
will violate the Purchaser's certificate of incorporation or by-laws or
constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which the
Purchaser is a party or which may be applicable to the Purchaser or its
assets.
(v) The Purchaser's execution and delivery of this Agreement
and its performance and compliance with the terms of this Agreement
will not constitute a violation of, any law, rule, writ, injunction, or
any order or decree of any court, or any order or regulation of any
federal, state or municipal government agency having jurisdiction over
the Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the
operation of the Purchaser or its assets or could materially and
adversely affect its ability to perform its obligations and duties
hereunder.
(vi) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
condition of the Purchaser that would materially and adversely affect
the ability of the Purchaser to perform its obligation under this
Agreement.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loans or consummation of any of the transactions
contemplated hereby.
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To induce the Seller to enter into this Agreement, the
Purchaser hereby covenants that the foregoing representations and warranties
will be true and correct in all material respects on and as of the Closing Date
with the same effect as if made on the Closing Date.
Each of the representations and warranties made by the
Purchaser pursuant to this Section 4(b) shall survive the purchase of the
Mortgage Loans.
SECTION 5. Remedies Upon Breach of Representations and
Warranties Made by the Seller.(a) It is hereby acknowledged that the Seller
shall make for the benefit of the holders of the Certificates, whether directly
or by way of assignment of its rights hereunder to the Trustee, the
representations and warranties set forth on Exhibit 2 hereto (each as of the
date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document
required to be delivered to the Trustee pursuant to Section 2 is not delivered
as and when required, not properly executed or is defective on its face, or if
there is a breach of any of the representations and warranties required to be
made by the Seller regarding the characteristics of the Mortgage Loans or the
related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either
case such defect or breach materially and adversely affects the interests of the
holders of the Certificates (a "Material Document Defect" and a "Material
Breach", respectively), the party discovering such Material Document Defect or
Material Breach shall promptly notify the other parties and within 90 days of
the earlier of discovery by the Seller or receipt by the Seller of notice of
such Material Document Defect or such Material Breach, as the case may be, the
Seller shall be required to cure such Material Document Defect or Material
Breach; provided, however, the Purchaser or its assignee shall extend the cure
period an additional 90 days if the Seller certifies to the Purchaser or its
assignee, as applicable, that the Seller has been diligently attempting to cure
such breach within the 90 day period.
The Seller hereby covenants and agrees that, if any such
Material Document Defect or Material Breach cannot be corrected or cured within
the above cure periods, the Seller shall, on or before the termination of such
cure periods, either (i) repurchase the related Mortgage Loan from the Purchaser
or its assignee at the Purchase Price as defined in the Pooling and Servicing
Agreement, or (ii) if within the three-month period commencing on the Closing
Date (or within the two-year period commencing on the Closing Date if the
related Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), at
its option replace any Mortgage Loan to which such defect relates with a
Qualifying Substitute Mortgage Loan. If such defect would cause the Mortgage
Loan to be other than a "qualified mortgage" (as defined in the Code), then
notwithstanding the previous sentence, repurchase or substitution must occur
within 90 days from the date the Seller was notified of the defect. The Seller
agrees that any such substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
The obligations of the Seller set forth in this Section 5(b)
to cure a Material Document Defect or a Material Breach or repurchase or replace
a defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document
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Defect or Material Breach or breach of the representations and warranties set
forth in Exhibit2 hereto in respect of an outstanding Mortgage Loan; provided,
that this limitation shall not in any way limit the Purchaser's rights or
remedies upon breach of any other representation or warranty or covenant by the
Seller set forth in this Agreement (other than those set forth in Exhibit 2).
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the Master Servicer or the Special Servicer on its behalf) shall
give prompt written notice to the Seller of its discovery of any Material
Document Defect or Material Breach and prompt written notice to the Seller in
the event that any Mortgage Loan becomes a Specially Serviced Mortgage Loan (as
defined in the Pooling and Servicing Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to
this Section 5, the Purchaser or its assignee, following receipt by the Trustee
of the Purchase Price therefor, promptly shall deliver or cause to be delivered
to the Seller, all Mortgage Loan documents with respect to such Mortgage Loan,
and each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Trustee shall be endorsed and assigned to the Seller in the
same manner such that the Seller shall be vested with legal and beneficial title
to such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such mortgage or proceeds of any insurance policies with
respect thereto.
SECTION 6. Closing. The closing of the sale of the Mortgage
Loans shall be held at the offices of Latham & Watkins, 885 Third Avenue, New
York, NY 10022 at 9:00 a.m., New York time, on the Closing Date.
The closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller
and the Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date (to the extent of
the standard, if any, set forth in each representation and warranty).
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and reasonably acceptable to the
Seller or the Purchaser, as applicable, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the
Purchaser or its designee all documents required to be delivered to the
Purchaser as of the Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the JHREF's Information to be
disclosed in the Memorandum and the Prospectus Supplement.
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(e) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been complied with,
and the Seller and the Purchaser shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable
by it to the Purchaser pursuant to Section8 hereof.
(g) The Certificates to be so rated shall have been assigned
ratings by each Rating Agency no lower than the ratings specified for each such
Class in the Memorandum and the Prospectus Supplement.
(h) Neither Underwriter shall have terminated the Underwriting
Agreement and neither Initial Purchaser shall have terminated the Certificate
Purchase Agreement.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section1 hereof.
(j) The Master Servicer and the Seller shall have entered into
a primary servicing agreement as contemplated by the Engagement Letter described
in Section 8 herein (such agreement, the "Primary Servicing Agreement").
All parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall
consist of the following:
(a) This Agreement duly executed by the Purchaser and the
Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles
of organization and by-laws.
(d) A certificate of existence for the Seller from the
Secretary of State of Delaware dated not earlier than 30 days prior to the
Closing Date.
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(e) A certificate of the Secretary or Assistant Secretary of
the Seller, dated the Closing Date, and upon which the Purchaser may rely, to
the effect that each individual who, as an officer or representative of the
Seller, signed this Agreement or any other document or certificate delivered on
or before the Closing Date in connection with the transactions contemplated
herein, was at the respective times of such signing and delivery, and is as of
the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under Delaware law and has
full corporate power and authority to enter into and perform its
obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(iii) No consent, approval, authorization or order of any
federal court or governmental agency or body is required for the
consummation by the Seller of the transactions contemplated by the
terms of this Agreement except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of
the transactions contemplated by the terms of this Agreement (A)
conflicts with or results in a breach or violation of, or constitute a
default under, the charter documents of the Seller, (B) to the
knowledge of such counsel, constitutes a default under any term or
provision of any material agreement, contract, instrument or indenture,
to which the Seller is a party or by which it or any of its assets is
bound or result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant
to this Agreement, or (C) conflicts with or results in a breach or
violation of any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict,
breach or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the
consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations
and duties hereunder or result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Seller, or in any material impairment of the right or ability of the
Seller to carry on its business substantially as now conducted
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(v) To his or her knowledge, there are no legal or
governmental actions, investigations or proceedings pending to which
the Seller is a party, or threatened against the Seller, (a) asserting
the invalidity of this Agreement or (b) which materially and adversely
affect the performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of
the Seller, enforceable against the Seller in accordance with its
terms, except as such enforcement may be limited by (1) laws relating
to bankruptcy, insolvency, reorganization, receivership or moratorium,
(2) other laws relating to or affecting the rights of creditors
generally, (3) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law) or (4)
public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of this Agreement that purport to provide
indemnification from liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters
on, among other things specified in such opinion, the representations and
warranties made by, and on certificates or other documents furnished by officers
of, the parties to this Agreement.
In rendering the opinions expressed above, such counsel may
limit such opinions to matters governed by the federal laws of the United States
and the corporate laws of the State of Delaware and the State of New York, as
applicable, assuming (other than with respect to clause (vi)) that the laws of
such states are identical to the laws of the Commonwealth of Massachusetts.
(g) Such other opinions of counsel as any Rating Agency may
request in connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller's execution and delivery of, or performance under, this
Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or
others and such other documents to evidence fulfillment of the conditions set
forth in this Agreement as the Seller or its counsel may reasonably request.
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(l) An executed Bill of Sale in the form attached hereto as
Exhibit 4.
SECTION 8. Costs. The Seller shall pay the Purchaser the costs
and expenses specified in the Engagement Letter dated August 11, 1997 between
the Seller and the Purchaser.
SECTION 9. Notices. All communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if (a) personally delivered, (b) mailed by registered or certified mail,
postage prepaid and received by the addressee, (c) sent by express courier
delivery service and received by the addressee, or (d) transmitted by telex or
facsimile transmission (or any other type of electronic transmission agreed upon
by the parties) and confirmed by a writing delivered by any of the means
described in (a), (b) or (c), if (i) to the Purchaser, addressed to Morgan
Stanley Capital I Inc., 1585 Broadway, New York, New York 10036, Attention:
Pamela Hudson, with a copy to Morgan Stanley Capital I Inc., 1585 Broadway, New
York, New York 10036, Attention: General Counsel (or such other address as may
hereafter be furnished in writing by the Purchaser), or (ii) if to the Seller,
addressed to the Seller at John Hancock Real Estate Finance, Inc., 200 Clarendon
Street, Boston, Massachusetts 02117, Attention: M.W. Sam Davis, Senior Vice
President (or to such other address as the Seller may designate in writing with
copies to the attention of Michael M. Epstein, Esq. and Nathaniel I. Margolis,
Esq.).
SECTION 10. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 11. Further Assurances. The Seller and the Purchaser
each agree to execute and deliver such instruments and take such actions as the
other may, from time to time, reasonably request in order to effectuate the
purpose and to carry out the terms of this Agreement and the Pooling and
Servicing Agreement.
SECTION 12. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified
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endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS,
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE
OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that the rights and obligations of the
Purchaser pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12
hereof may be assigned to the Trustee as may be required to effect the purposes
of the Pooling and Servicing Agreement and, upon such assignment, the Trustee
shall succeed to the rights and obligations hereunder of the Purchaser. No owner
of a Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
SECTION 15. Miscellaneous. This Agreement may be executed in
two or more counterparts, each of which when so executed and delivered shall be
an original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
SECTION 16. Entire Agreement. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof (other than the Engagement Letter referred to in
Section 8 above, the Letter of Understanding, the Indemnification Agreement and
the Pooling and Servicing Agreement), and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The
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express terms hereof control and supersede any course of performance or usage of
the trade inconsistent with any of the terms hereof.
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IN WITNESS WHEREOF, the Purchaser and the Seller have caused
this Agreement to be executed by their respective duly authorized officers as of
the date first above written.
JOHN HANCOCK REAL ESTATE FINANCE, INC.
By:______________________________________
Name:
Title:
MORGAN STANLEY CAPITAL I INC.
By:______________________________________
Name: Russell Rahbany
Title: Vice President
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EXHIBIT 1
MORTGAGE LOAN SCHEDULE
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(Representations and Warranties with respect to JHREF Loans)
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule is complete, true and correct in all material respects as
of the date of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan
is a whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and
interest under any Mortgage Loan was 30 days or more past due as of the Cut-Off
Date, and no Mortgage Loan was 30 days or more delinquent in the twelve-month
period immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and, subject
to the exceptions set forth in paragraph 13 below, enforceable first priority
lien upon the related Mortgaged Property, prior to all other liens and
encumbrances, except for (a) the lien for current real estate taxes and
assessments not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters that are of public record and/or are
referred to in the related lender's title insurance policy, (c) exceptions and
exclusions specifically referred to in such lender's title insurance policy, and
(d) other matters to which like properties are commonly subject, none of which
matters referred to in clauses (b), (c) or (d) materially interferes with the
security intended to be provided by such Mortgage, the marketability or current
use of the Mortgaged Property or the current ability of the Mortgaged Property
to generate operating income sufficient to service the Mortgage Loan debt (the
foregoing items (a) through (d) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security interest in
favor of the holder
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thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate, the related Mortgaged Property. A Uniform
Commercial Code financing statement has been filed and/or recorded in all places
necessary to perfect a valid security interest in such personal property, to the
extent a security interest may be so created therein, and such security interest
is a first priority security interest, subject to any prior purchase money
security interest in such personal property and any personal property leases
applicable to such personal property. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in rents or
other personal property to the extent that possession or control of such items
or actions other than the filing of Uniform Commercial Code financing statements
are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases
set forth in the Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien and
first priority security interest in the related Mortgagor's interest in all
leases, sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage has been executed and delivered in favor of the Trustee
and is in recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has
been satisfied, cancelled, rescinded or subordinated in whole or in material
part, and the related Mortgaged Property has not been released from the lien of
such Mortgage, in whole or in material part, nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release, except for any partial reconveyances of real property
which are included in the related Mortgage File. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived,
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File.
7. Condition of Property; Condemnation. Except as set forth in
an engineering report prepared in connection with the origination of the related
Mortgage Loan, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage that would materially and adversely affect its value as
security for the related Mortgage Loan. The Seller has received no notice of the
commencement of any proceeding for the condemnation of all or any material
portion of any Mortgaged Property. To the Seller's knowledge (based on surveys
and/or title insurance obtained in connection with the origination of the
Mortgage Loans), as of the date of the origination of each Mortgage Loan, all of
the material improvements on the related Mortgaged Property which were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon
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such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy (the "Title Policy") in the original principal amount of the
related Mortgage Loan after all advances of principal. Each Title Policy insures
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein (or an escrow letter or
a marked up title insurance commitment on which the required premium has been
paid exists which evidences that such Title Policy will be issued). Each Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid and no material
claims have been made thereunder and no claims have been paid thereunder. No
mortgagee under the related Mortgage has done, by act or omission, anything that
would materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Mortgage Loan to the
Trustee, such Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of the Trustee without the consent
of or notice to the insurer. To the Seller's knowledge, the insurer issuing such
Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been
fully disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
funds escrowed for such purpose that were to have been complied with on or
before the Closing Date have been complied with, or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for
each Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of
trust, (1) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (2) no fees or expenses
are payable to such trustee by the Seller, the Purchaser or any transferee
thereof except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions. An environmental site assessment
was performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse
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environmental condition or circumstance affecting any Mortgaged Property that
was not disclosed in such report. Each Mortgage requires the related Mortgagor
to comply with all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a material and
adverse environmental condition or circumstance affecting any Mortgaged
Property, (i) a party not related to the Mortgagor was identified as the
responsible party for such condition or circumstance, (ii) recourse to a
clean-up, remediation or reimbursement fund was available under applicable state
law, (iii) state law provides for a mechanism implemented by the related
Mortgagor by which such environmental condition or circumstance is brought into
compliance with applicable law and does not pose an imminent threat to health or
safety, (iv) environmental insurance covering such condition was obtained or
must be maintained until the condition is remediated, or (v) the related
Mortgagor was required either to provide additional security which was deemed to
be sufficient by the originator in light of the circumstances and/or to obtain
an operations and maintenance plan.
13. Loan Document Status. Each Mortgage Note, Mortgage and
other agreement that evidences or secures a Mortgage Loan and that was executed
by or on behalf of the related Mortgagor is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements.
14. Insurance. Each Mortgaged Property is, and is required
pursuant to the related Mortgage, to be insured by (a) a fire and extended
perils insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles and smoke, and, to the extent
required as of the date of origination by the originator of such Mortgage Loan
consistent with its normal commercial mortgage lending practices, against other
risks insured against by persons operating like properties in the locality of
the Mortgaged Property in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the Mortgaged
Property, and not less than the amount necessary to avoid the operation of any
co-insurance provisions with respect to the Mortgaged Property; (b) a business
interruption or rental loss insurance policy, in an amount at least equal to six
months of operations of the Mortgaged Property; (c) a flood insurance policy (if
any portion of buildings or other structures on the Mortgaged Property are
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards); and (d) a comprehensive general liability
insurance policy in amounts as are generally required by commercial mortgage
lenders, and in any event not less than $1 million per occurrence. Such
insurance policy contains a standard mortgagee clause that names the mortgagee
as an additional insured and requires prior notice to the holder of the Mortgage
of termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related
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Mortgagor to maintain all such insurance and, upon such Mortgagor's failure to
do so, authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from such
Mortgagor. Each Mortgage provides that casualty insurance proceeds will be
applied either to the restoration or repair of the related Mortgaged Property or
to the reduction of the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are
no delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property which are or may become a lien of priority equal to or higher than the
lien of the related Mortgage. For purposes of this representation and warranty,
real property taxes and assessments shall not be considered unpaid until the
date on which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to the Seller's
knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple estate.
18. Escrow Deposits. All escrow deposits and payments relating
to each Mortgage Loan that are, as of the Closing Date, required to be deposited
or paid have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property having a fair market value (i) at the date the
Mortgage Loan was originated, at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (ii) at the Closing Date, at least
equal to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (x) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (a)(i) and (a)(ii) of
this paragraph 19 shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans); or (b) substantially all the proceeds of such Mortgage Loan
were used to acquire, improve or protect the real property which served as the
only security for such Mortgage Loan (other than a recourse feature or other
third party credit enhancement within the meaning of Treasury Regulations
Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default or reasonably foreseeable default of such Mortgage Loan or (b)
satisfies the provisions of either clause (a)(i) of
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paragraph 19 (substituting the date of the last such modification for the date
the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19, including
the proviso thereto.
21. Advancement of Funds by the Seller. No holder of a
Mortgage Loan has advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by such
Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and
clear of any and all mechanics' and materialmen's liens that are prior or equal
to the lien of the related Mortgage, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied
with all applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the
next sentence, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property that was included
in the appraisal for such Mortgaged Property and/or generates income from the
lien of the related Mortgage except upon payment in full of all amounts due
under the related Mortgage Loan. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a release
price and prepayment consideration in connection therewith. Except as described
in the first sentence hereof and for those Mortgage Loans identified on Schedule
A, no Mortgage Loan permits the release or substitution of collateral unless the
mortgagee can require the Borrower to provide an opinion of tax counsel to the
effect that such release or substitution of collateral (a) would not constitute
a "significant modification" of such Mortgage Loan within the meaning of Treas.
Reg. ss.1.1001-3 and (b) would not cause such Mortgage Loan to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the lender or provides for
negative amortization or for any contingent or additional interest in the form
of participation in the cash flow of the related Mortgaged Property.
27. No Material Default. To the Seller's knowledge, there
exists no material default, breach, violation or event of acceleration (and no
event which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided,
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however, that this representation and warranty does not address or otherwise
cover any default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any of paragraphs 3, 7, 12, 14, 15, 16 and 17 of
this Exhibit 2.
28. Inspections. The Seller (or if the Seller is not the
originator, the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of the
related Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part of
each Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal or internal or external market study performed at origination.
30. Junior Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any lien junior to or of equal
priority with the lien of the related Mortgage without the prior written consent
of the holder thereof or the satisfaction of debt service coverage or similar
criteria specified therein. The Seller has no knowledge that any of the
Mortgaged Properties is encumbered by any lien junior to the lien of the related
Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor or
related Mortgaged Property that might adversely affect title to the Mortgage
Loan or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by
the Seller have been in all material respects legal, proper and prudent and have
met customary industry standards.
33. Licenses and Permits. To the Seller's knowledge, based on
due diligence that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage Loan, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgage Property as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged
Property is operated as an assisted living facility, to the Seller's knowledge
(a) the related Mortgagor is in compliance in all material respects with all
federal and state laws applicable to the use and operation of the related
Mortgaged Property and (b) if the operator of the Mortgaged Property
participates in Medicare or Medicaid programs, the facility is in compliance in
all material respects with the requirements for participation in such programs.
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35. Collateral in Trust. The Mortgage Note for each Mortgage
Loan is not secured by any collateral that is not included in the Trust.
36. Valid Assignment. The assignment of the related Mortgage
in favor of the Trustee constitutes a legal, valid and binding assignment by the
Seller.
37. Due on Sale. Each Mortgage Loan contains a "due on sale"
clause, which provides for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any material
portion thereof, is transferred, sold or encumbered by a junior mortgage or deed
of trust (except for Mortgage Loan No. 22 (Plaza Madison) which permits junior
debt if certain conditions are met); provided, however, that certain Mortgage
Loans provide a mechanism for the assumption of the loan by a third party upon
the Mortgagor's satisfaction of certain conditions precedent, and upon payment
of a transfer fee, if any, or transfer of interests in the Mortgagor or
constituent entities of the Mortgagor to a third party or parties related to the
Mortgagor upon the Mortgagor's satisfaction of certain conditions precedent.
38. Non-Recourse Exceptions. Except for Mortgage Loan No.29
(Peddler's Village) which is recourse to the related Mortgagor, the Mortgage
Loan documents for each Mortgage Loan provide that such Mortgage Loan
constitutes the non-recourse obligations of the related Mortgagor and
non-recourse guarantors, if any, except that either (i) such provision does not
apply in the case of fraud by the Mortgagor or (ii) such documents provide that
the Mortgagor shall be liable to the holder of the Mortgage Loan for losses
incurred as a result of fraud by the Mortgagor.
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Schedule A
Exceptions to Representations and Warranties
<PAGE>
EXHIBIT 3
PRICING FORMULATION
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EXHIBIT 4
BILL OF SALE
1. PARTIES. The parties to this Bill of Sale are the
following:
Seller: John Hancock Real Estate Finance, Inc.
Purchaser: Morgan Stanley Capital I Inc.
2. SALE. For value received, the Seller hereby conveys to the
Purchaser, without recourse, all right, title and interest in and to the
Mortgage Loans identified on Exhibit 1 (the "Mortgage Loan Schedule") to the
Mortgage Loan Purchase Agreement, dated as of July 28, 1999 (the "Mortgage Loan
Purchase Agreement"), between the Seller and the Purchaser and all of the
following property:
(a) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the Mortgage Loan
Schedule including the related Mortgage Notes, Mortgages, security
agreements, and title, hazard and other insurance policies, all
distributions with respect thereto payable after the Cut-Off Date, all
substitute or replacement Mortgage Loans and all distributions with
respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property, and other rights arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable with
respect to, or claims against other Persons with respect to, all or any
part of the collateral described in clause (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the collateral described
in clauses(a) and (b) above (but excluding the Purchase Price paid by
the Purchaser to the Seller).
3. PURCHASE PRICE. The amount set forth on Exhibit 3 to the
Mortgage Loan Purchase Agreement.
4. DEFINITIONS. Terms used but not defined herein shall have
the meanings assigned to them in the Mortgage Loan Purchase Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Bill of Sale to be duly executed and delivered on this __ day of August, 1999.
SELLER: JOHN HANCOCK REAL ESTATE FINANCE INC.
By:__________________________________
Name:
Title:
PURCHASER: MORGAN STANLEY CAPITAL I INC.
By:__________________________________
Name: Russell Rahbany
Title: Vice President
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EXHIBIT K-3
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT III
K-3-1
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MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of
July 28, 1999, between Morgan Stanley Mortgage Capital Inc. (the "Seller"), and
Morgan Stanley Capital I Inc. (the "Purchaser").
The Seller agrees to sell and the Purchaser agrees to purchase
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of August 1, 1999 (the "Cut-Off Date"),
between the Purchaser, as depositor, Wells Fargo Bank, National Association, as
master servicer (the "Master Servicer") and as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee"), and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). In exchange for the
Mortgage Loans and certain other mortgage loans to be purchased by the Purchaser
(collectively the "Other Mortgage Loans"), the Trust will issue to the Depositor
pass-through certificates to be known as Morgan Stanley Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1999-LIFE1 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall
have the meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class B, Class C, Class D and Class
E Certificates (the "Public Certificates") will be sold by the Purchaser to
Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co. (the "Underwriters"),
pursuant to an Underwriting Agreement, between the Purchaser and the
Underwriters, dated July 28, 1999 (the "Underwriting Agreement"), and the Class
X, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
O, Class P, Class RI, Class RII and Class RIII Certificates (the "Private
Certificates") will be sold by the Purchaser to Morgan Stanley & Co.
Incorporated (the "Initial Purchaser") pursuant to a Certificate Purchase
Agreement, between the Purchaser and the Initial Purchaser, dated July 28, 1999
(the "Certificate Purchase Agreement"). The Underwriters will offer the Public
Certificates for sale publicly pursuant to a Prospectus dated July 19, 1999, as
supplemented by a Prospectus Supplement dated July 28, 1999 (together, the
"Prospectus Supplement"), and will offer the Private Certificates for sale in
transactions exempt from the registration requirements of the Securities Act of
1933 pursuant to a Private Placement Memorandum dated July 28, 1999 (the
"Memorandum").
In consideration of the mutual agreements contained herein,
the Seller and the Purchaser hereby agree as follows:
Section 1. SECTION 1. Agreement to Purchase. The Seller agrees
to sell, and the Purchaser agrees to purchase, on a servicing released basis
under the Pooling and Servicing Agreement as enduring Primary Servicers), the
Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit 1, as such schedule may be amended to reflect the actual
Mortgage Loans accepted by the Purchaser pursuant to the terms
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hereof. The Mortgage Loans will have an aggregate principal balance as of the
close of business on the Cut-Off Date, after giving effect to any payments due
on or before such date, whether or not received, of $83,182,148. The sale of the
Mortgage Loans shall take place on August 10, 1999 or such other date as shall
be mutually acceptable to the parties hereto (the "Closing Date"). The purchase
price to be paid by the Purchaser for the Mortgage Loans shall equal the amount
set forth as such purchase price on Exhibit 3 hereto. Such purchase price shall
be paid to the Seller by wire transfer in immediately available funds on the
Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 14), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 14).
Section 2. SECTION 2. Conveyance of Mortgage Loans. Effective
as of the Closing Date, subject only to receipt of the consideration referred to
in Section 1 hereof and the satisfaction of the conditions specified in Sections
6 and 7 hereof, the Seller does hereby transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule
as of the Closing Date. The Mortgage Loan Schedule, as it may be amended from
time to time, on or prior to the Closing Date shall conform to the requirements
of this Agreement and the Pooling and Servicing Agreement. In connection with
such transfer and assignment, the Seller shall deliver to or on behalf of the
Trustee, on behalf of the Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage Loan. In
addition, not later than the 30th day following the Closing Date, the Seller
shall deliver to or on behalf of the Trustee each of the remaining documents or
instruments specified below (with such exceptions as are permitted by this
Section) with respect to each Mortgage Loan (each, a "Mortgage File"). (The
Seller acknowledges that the term "without recourse" does not modify the duties
of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to
the Closing Date are to be held by or on behalf of the Trustee in escrow on
behalf of the Seller at all times prior to the Closing Date. The Mortgage Files
shall be released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of LaSalle Bank National Association,
as Trustee for Morgan Stanley Capital I, Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-LIFE1, without recourse, representation or warranty"
or if the original Mortgage Note is not included therein, then a lost note
affidavit, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon, (if
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recording is customary in the jurisdiction in which such power of attorney was
executed), or certified by a title insurance company or escrow company to be a
true copy thereof; provided that if such original Mortgage cannot be delivered
with evidence of recording thereon on or prior to the 30th day following the
Closing Date because of a delay caused by the public recording office where such
original Mortgage has been delivered for recordation or because such original
Mortgage has been lost, the Seller shall deliver or cause to be delivered to the
Trustee a true and correct copy of such Mortgage, together with (i) in the case
of a delay caused by the public recording office, an Officer's Certificate (as
defined below) of the Seller stating that such original Mortgage has been sent
to the appropriate public recording official for recordation or (ii) in the case
of an original Mortgage that has been lost after recordation, a certification by
the appropriate county recording office where such Mortgage is recorded that
such copy is a true and complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon, or if such original modification,
consolidation and extension agreements have been delivered to the appropriate
recording office for recordation and either has not yet been returned with
evidence of recordation thereon or has been lost after recordation, true copies
of such modifications, consolidations and extensions certified by the Seller
together with (i) in the case of a delay caused by the public recording office,
an Officer's Certificate of the Seller stating that such original modification,
consolidation or extension agreement has been dispatched or sent to the
appropriate public recording official for recordation or (ii) in the case of an
original modification, consolidation or extension agreement that has been lost
after recordation, a certification by the appropriate county recording office
where such document is recorded that such a copy is a true and complete copy of
the original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any, each signed by the holder of
record in favor of "LaSalle Bank National Association, as Trustee for Morgan
Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-LIFE1";
(d) An original Assignment of Mortgage for each Mortgage Loan,
in form and substance acceptable for recording, signed by the holder of record
in favor of "LaSalle Bank National Association, as Trustee for Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-LIFE1";
(e) Originals of all intervening assignments of Mortgage, if
any, with evidence of recording thereon or, if such original assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such assignments of Mortgage certified by
the Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by the Seller, a copy thereof certified by the Seller or, if
any original intervening assignment of Mortgage has not yet been returned from
the applicable recording office or has been lost, a true and correct copy
thereof, together with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Seller stating that such original
intervening assignment of Mortgage has been sent to the appropriate public
recording official for recordation or (ii) in the case of an original
intervening Assignment of Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where
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such assignment is recorded that such copy is a true and complete copy of the
original recorded intervening Assignment of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such Assignment of Leases
certified by the Seller to be a true and complete copy of the original
Assignment of Leases submitted for recording, together with (i) an original of
each assignment of such Assignment of Leases with evidence of recording thereon
and showing a complete recorded chain of assignment from the named assignee to
the holder of record, and if any such assignment of such Assignment of Leases
has not been returned from the applicable public recording office, a copy of
such assignment certified by the Seller to be a true and complete copy of the
original assignment submitted for recording, and (ii) an original assignment of
such Assignment of Leases, in recordable form, signed by the holder of record in
favor of "LaSalle Bank National Association, as Trustee for Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-LIFE1," which assignment may be effected in the related Assignment of
Mortgage;
(g) The original of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(i) UCC financing statements (together with all assignments
thereof to the Trustee) executed and delivered in connection with any Mortgage
Loan;
(j) Copies of ground leases, if any, related to any Mortgage
Loan where the Mortgagor is the lessee under such lease and there is a lien in
favor of the mortgagee in such lease.
(k) copies of any lock-box agreements and intercreditor
agreements, if any, related to any Mortgage Loan; and
(l) a copy of each Letter of Credit, if any, constituting
additional collateral for such Mortgage Loan, together with the original
supporting documentation evidencing a beneficial transfer, in favor of LaSalle
Bank National Association, as Trustee for Morgan Stanley Capital Inc.,
Commercial Pass-Through Certificates, Series 1999-LIFE1; provided, however, the
Trustee shall hold such Letter of Credit only in a custodian capacity and shall
have no obligation to maintain, extend the term of, enforce, or otherwise
preserve any rights under such Letter of Credit;
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The original of each Letter of Credit referred to in clause
(l) above shall be delivered to the Master Servicer within 45 days of the
Closing Date.
"Officer's Certificate" shall mean a certificate signed by one
or more of the Chairman of the Board, any Vice Chairman, the President, any
Senior Vice President, any Vice President, any Assistant Vice President, any
Treasurer or any Assistant Treasurer.
The Assignments of Mortgage, assignment of Assignment of
Leases and assignment of UCC financing statement referred to in clauses (d),
(e), (f) and (i) may be in the form of a single instrument assigning the
Mortgage, Assignment of Leases and UCC financing statement to the extent
permitted by applicable law. The Seller will deliver the original Mortgage Note
to the Trustee, on behalf of the Purchaser, endorsed, to effect the transfer to
the Purchaser of the Mortgage Notes and all related deeds of trust, mortgages
and other loan documents specified above. Concurrently herewith, the Purchaser
has contracted to sell the Mortgage Loans to the Trustee on behalf of the
Certificateholders. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, the Seller shall
execute, in accordance with the third succeeding paragraph, the assignments of
mortgages, the assignments of leases (to the extent separate from the mortgages)
and assignments of UCC financing statements relating to the Mortgage Loans
naming the Trustee on behalf of the Certificateholders as assignee.
Notwithstanding the fact that such assignments of mortgages, assignments of
leases (to the extent separate from the assignments of mortgages) and the
assignments of UCC financing statements shall name the Trustee on behalf of the
Certificateholders as the assignee, the parties hereto acknowledge and agree
that the Mortgage Loans shall for all purposes be deemed to have been
transferred from the Seller to the Purchaser and from the Purchaser to the
Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, to the
Trustee any of the documents or instruments referred to in clause (b), (c), (e)
or (f) with evidence of recording thereon for any other reason, or if the Seller
has not delivered, or caused to be delivered, to the Trustee the original
thereof with evidence of recording thereon within 45 days of the Closing Date,
the Seller shall deliver or cause to be delivered to the Trustee a photocopy of
such document or instrument with evidence of recording thereon and certified by
the appropriate county recorder's office be a true and complete copy of the
original thereof submitted for recording.
If the Seller cannot deliver, or cause to be delivered, as to
any Mortgage Loan, any of the documents and/or instruments referred to in
clauses (b), (c), (e) or (f), with evidence of recording thereon, solely because
of a delay caused by the public recording office where such document or
instrument has been delivered for recordation within such 45 day period, but the
Seller delivers a photocopy thereof (certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording), to the Trustee within such 45 day period, the Seller
shall then deliver within 90 days after the Closing Date the recorded document
(or within such longer period after the Closing Date as the Trustee may
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consent to, which consent shall not be unreasonably withheld so long as the
Seller is, as certified in writing to the Trustee no less often than monthly, in
good faith attempting to obtain from the appropriate county recorder's office
such original or photocopy).
The Trustee, as assignee or transferee of the Depositor, shall
be entitled to all scheduled payments of principal due after the Cut-Off Date,
all other payments of principal collected after the Cut-Off Date (other than
scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver and the Purchaser, the Trustee or the agents of either may submit or
cause to be submitted for recordation at the expense of the Seller, in the
appropriate public office for real property records, each assignment referred to
in clauses (d) and (f)(ii) above. Within 90 days following the Closing Date, the
Seller shall deliver and the Purchaser, the Trustee or the agents of either may
submit or cause to be submitted for filing, at the expense of the Seller, in the
appropriate public office for Uniform Commercial Code financing statements, the
assignment referred to in clause (i) above. If any such document or instrument
is lost or returned unrecorded or unfiled, as the case may be, because of a
defect therein, the Seller shall prepare a substitute therefor or cure such
defect, and the Seller shall, at its own expense (except in the case of a
document or instrument that is lost by the Trustee), record or file, as the case
may be, and deliver such document or instrument in accordance with this Section
2.
Documents relating to the Mortgage Loans that are not required
to be delivered to the Trustee, shall be shipped by the Seller to or on behalf
of the Master Servicer, on behalf of the Purchaser, on or prior to the Closing
Date, subject to the requirements of the Primary Servicing Agreement (as defined
in Section 6(j)).
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and the other contents of the related Mortgage File shall be vested in
the Purchaser and its assigns, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller shall immediately vest in the Purchaser and its
assigns, and shall be delivered promptly by the Seller to or on behalf of either
the Trustee or the Master Servicer as set forth herein, subject to the
requirements of the Primary Servicing Agreement. The Seller's and Purchaser's
records shall reflect the transfer of each Mortgage Loan from the Seller to the
Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Purchaser, by the
Seller as provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any
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related property is held to be the property of the Seller, or if for any other
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans or any related property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed to be a grant by the Seller to the Purchaser, of a security
interest in all of the Seller's right, title, and interest, whether
now owned or hereafter acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to
any of the following property: the Mortgage Loans identified
on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and
other insurance policies, all distributions with respect
thereto payable after the Cut-Off Date, all substitute or
replacement Mortgage Loans and all distributions with respect
thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of deposit, goods, letters of credit, advices of credit,
investment property, and other rights arising from or by
virtue of the disposition of, or collections with respect to,
or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the
collateral described in clause (A) above (including any
accrued discount realized on liquidation of any investment
purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the
Mortgage Notes, the Mortgages, and such other goods, letters of credit, advices
of credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be possession by the secured party or possession
by a purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments, receipts, or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or Persons
holding for, the Purchaser or its designee, as applicable, for the purpose of
perfecting such security interest under applicable law.
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The Seller shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the property
described above, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. In such case, the Seller shall
file all filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect such security interest in such property. In connection herewith, the
Purchaser shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
Notwithstanding anything to the contrary contained herein, the
Purchaser shall not be required to purchase any Mortgage Loan as to which any
Mortgage Note (endorsed as described in clause (a) above) required to be
delivered to or on behalf of the Trustee or the Master Servicer pursuant to this
Section 2 on or before the Closing Date is not so delivered, or is not properly
executed or is defective on its face, and the Purchaser's acceptance of the
related Mortgage Loan on the Closing Date shall in no way constitute a waiver of
such omission or defect or of the Purchaser's or its successors' and assigns'
rights in respect thereof pursuant to Section 5.
Section 3 SECTION 3. Examination of Mortgage Files and Due
Diligence Review. The Seller shall (i) deliver to the Purchaser on or before the
Closing Date a diskette acceptable to the Purchaser which contains such
information about the Mortgage Loans as may be reasonably requested by the
Purchaser, (ii) deliver to the Purchaser investor files (collectively the
"Collateral Information") with respect to the assets proposed to be included in
the Mortgage Pool and made available at the Purchaser's headquarters in New
York, and (iii) otherwise cooperate fully with the Purchaser in its examination
of the credit files, underwriting documentation and Mortgage Files for the
Mortgage Loans and its due diligence review of the Mortgage Loans. The fact that
the Purchaser has conducted or has failed to conduct any partial or complete
examination of the credit files, underwriting documentation or Mortgage Files
for the Mortgage Loans shall not affect the right of the Purchaser or the
Trustee to cause the Seller to cure any Material Document Defect or Material
Breach (each as defined below), or to repurchase or replace the defective
Mortgage Loans pursuant to Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency to examine
and audit all books, records and files pertaining to the Mortgage Loans, the
Seller's underwriting procedures and the Seller's ability to perform or observe
all of the terms, covenants and conditions of this Agreement. Such examinations
and audits shall take place at one or more offices of the Seller during normal
business hours and shall not be conducted in a manner that is disruptive to the
Seller's normal business operations upon reasonable prior advance notice. In the
course of such examinations and audits, the Seller will make available to such
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency reasonably
adequate facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the Mortgage
Loans and the terms of this Agreement, and the
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Seller shall cooperate fully with any such examination and audit in all material
respects. On or prior to the Closing Date, the Seller shall provide the
Purchaser with all material information regarding the Seller's financial
condition and access to knowledgeable financial or accounting officers for the
purpose of answering questions with respect to the Seller's financial condition,
financial statements as provided to the Purchaser or other developments
affecting the Seller's ability to consummate the transactions contemplated
hereby or otherwise affecting the Seller in any material respect.
The Purchaser may exercise any of its rights hereunder through
one or more designees or agents; provided the Purchaser has provided the Seller
with prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information
regarding the Seller that has been delivered into the Purchaser's possession and
that is not otherwise publicly available; provided, however, that such
information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4 SECTION 4. Representations and Warranties of the
Seller and the Purchaser.
(a) (a) To induce the Purchaser to enter into this Agreement,
the Seller hereby makes for the benefit of the Purchaser and its assigns with
respect to each Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty) each of
the representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
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(i) (i) The Seller is duly organized and is validly existing
as a corporation in good standing under the laws of the State of New
York. The Seller has the requisite power and authority and legal right
to own the Mortgage Loans and to transfer and convey the Mortgage Loans
to the Purchaser and has the requisite power and authority to execute
and deliver, engage in the transactions contemplated by, and perform
and observe the terms and conditions of, this Agreement.
(ii) (ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, and assuming the due
authorization, execution and delivery hereof by the Purchaser, this
Agreement constitutes the valid, legal and binding agreement of the
Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws
relating to or affecting the rights of creditors generally, (C) general
equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law) or (D) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions
of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court, is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such qualifications as may be
required under state securities or blue sky laws, (2) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (3) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained and (4) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the
Purchaser, nor the execution, delivery or performance of this Agreement
by the Seller, conflicts or will conflict with, results or will result
in a breach of, or constitutes or will constitute a default under (A)
any term or provision of the Seller's articles of organization or
by-laws, (B) any term or provision of any material agreement, contract,
instrument or indenture, to which the Seller is a party or by which it
or any of its assets is bound or results in the creation or imposition
of any lien, charge or encumbrance upon any of its property pursuant to
the terms of any such indenture, mortgage, contract or other
instrument, other than pursuant to this Agreement, or (C) after giving
effect to the consents or taking of the actions contemplated in
subsection (iii), any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict,
breach or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the
consummation of the
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transactions contemplated hereby by the Seller or its ability to
perform its obligations and duties hereunder or result in any material
adverse change in the business, operations, financial condition,
properties or assets of the Seller, or in any material impairment of
the right or ability of the Seller to carry on its business
substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer
of the Mortgage Loans to the Purchaser or the execution or delivery by,
or enforceability against, the Seller of this Agreement or have an
effect on the financial condition of the Seller that would materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans
pursuant to this Agreement will effect a transfer by the Seller of all
of its right, title and interest in and to the Mortgage Loans to the
Purchaser.
(vii) To the Seller's knowledge, the Seller's Information (as
defined in that certain indemnification agreement, dated July 28, 1999,
between the Seller, the Purchaser, the Underwriters and the Initial
Purchaser (the "Indemnification Agreement")) relating to the Mortgage
Loans does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. Notwithstanding anything contained herein to the contrary,
this subparagraph (vii) shall run exclusively to the benefit of the
Purchaser and no other party.
To induce the Purchaser to enter into this Agreement, the
Seller hereby covenants that the foregoing representations and warranties and
those set forth on Exhibit 2 hereto will be true and correct in all material
respects on and as of the Closing Date with the same effect as if made on the
Closing Date.
Each of the representations, warranties and covenants made by
the Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(b) (b) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date hereof:
(i) (i) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(ii) (ii) The Purchaser has full power and authority to
acquire the Mortgage Loans, to execute and deliver this Agreement and
to enter into and consummate all transactions contemplated by this
Agreement. The Purchaser has duly and validly
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authorized the execution, delivery and performance of this Agreement
and has duly and validly executed and delivered this Agreement. This
Agreement, assuming due authorization, execution and delivery by the
Seller, constitutes the valid and binding obligation of the Purchaser,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(iii) (iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court, is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby which has not been obtained or made by the
Purchaser.
(iv) (iv) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the Purchaser
will violate the Purchaser's certificate of incorporation or by-laws or
constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which the
Purchaser is a party or which may be applicable to the Purchaser or its
assets.
(v) (v) The Purchaser's execution and delivery of this
Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, rule, writ,
injunction, or any order or decree of any court, or any order or
regulation of any federal, state or municipal government agency having
jurisdiction over the Purchaser or its assets, which violation could
materially and adversely affect the condition (financial or otherwise)
or the operation of the Purchaser or its assets or could materially and
adversely affect its ability to perform its obligations and duties
hereunder.
(vi) (vi) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
condition of the Purchaser that would materially and adversely affect
the ability of the Purchaser to perform its obligation under this
Agreement.
(vii) (vii) The Purchaser has not dealt with any broker,
investment banker, agent or other person, other than the Seller, the
Underwriters, the Initial Purchaser and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or consummation of any of the
transactions contemplated hereby.
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To induce the Seller to enter into this Agreement, the
Purchaser hereby covenants that the foregoing representations and warranties
will be true and correct in all material respects on and as of the Closing Date
with the same effect as if made on the Closing Date.
Each of the representations and warranties made by the
Purchaser pursuant to this Section 4(b) shall survive the purchase of the
Mortgage Loans.
Section 5 SECTION 5. Remedies Upon Breach of Representations
and Warranties Made by the Seller.
(a) (a) It is hereby acknowledged that the Seller shall make
for the benefit of the holders of the Certificates, whether directly or by way
of assignment of its rights hereunder to the Trustee, the representations and
warranties set forth on Exhibit 2 hereto (each as of the date hereof unless
otherwise specified).
(b) (b) It is hereby further acknowledged that if any document
required to be delivered to the Trustee pursuant to Section 2 is not delivered
as and when required, not properly executed or is defective on its face, or if
there is a breach of any of the representations and warranties required to be
made by the Seller regarding the characteristics of the Mortgage Loans or the
related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either
case such defect or breach materially and adversely affects the interests of the
holders of the Certificates (a "Material Document Defect" and a "Material
Breach", respectively), the party discovering such Material Document Defect or
Material Breach shall promptly notify the other parties and within 90 days of
the earlier of discovery by the Seller or receipt by the Seller of notice of
such Material Document Defect or such Material Breach , as the case may be, the
Seller shall be required to cure such Material Document Defect or Material
Breach; provided, however, the Purchaser or its assignee shall extend the cure
period an additional 90 days if the Seller certifies to the Purchaser or its
assignee, as applicable, that the Seller has been diligently attempting to cure
such breach within the 90 day period.
The Seller hereby covenants and agrees that, if any such
Material Document Defect or Material Breach cannot be corrected or cured within
the above cure periods, the Seller shall, on or before the termination of such
cure periods, either (i) repurchase the related Mortgage Loan from the Purchaser
or its assignee at the Purchase Price as defined in the Pooling and Servicing
Agreement, or (ii) if within the three-month period commencing on the Closing
Date (or within the two-year period commencing on the Closing Date if the
related Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), at
its option replace any Mortgage Loan to which such defect relates with a
Qualifying Substitute Mortgage Loan. If such defect would cause the Mortgage
Loan to be other than a "qualified mortgage" (as defined in the Code), then
notwithstanding the previous sentence, repurchase or substitution must occur
within 90 days from the date the Seller was notified of the defect. The Seller
agrees that any such substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
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The obligations of the Seller set forth in this Section 5(b) to
cure a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach or
breach of the representations and warranties set forth in Exhibit 2 hereto in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
(c) (c) The Pooling and Servicing Agreement shall provide that
the Trustee (or the Master Servicer or the Special Servicer on its behalf) shall
give prompt written notice to the Seller of its discovery of any Material
Document Defect or Material Breach and prompt written notice to the Seller in
the event that any Mortgage Loan becomes a Specially Serviced Mortgage Loan (as
defined in the Pooling and Servicing Agreement).
(d) (d) If the Seller repurchases any Mortgage Loan pursuant
to this Section 5, the Purchaser or its assignee, following receipt by the
Trustee of the Purchase Price therefor, promptly shall deliver or cause to be
delivered to the Seller, all Mortgage Loan documents with respect to such
Mortgage Loan, and each document that constitutes a part of the Mortgage File
that was endorsed or assigned to the Trustee shall be endorsed and assigned to
the Seller in the same manner such that the Seller shall be vested with legal
and beneficial title to such Mortgage Loan, in each case without recourse,
including any property acquired in respect of such mortgage or proceeds of any
insurance policies with respect thereto.
Section 6 SECTION 6. Closing. The closing of the sale of the
Mortgage Loans shall be held at the offices of Latham & Watkins, 885 Third
Avenue, New York, NY 10022 at 9:00 a.m., New York time, on the Closing Date.
The closing shall be subject to each of the following
conditions:
(a) (a) All of the representations and warranties of the
Seller and the Purchaser specified in Section 4 of this Agreement (including,
without limitation, the representations and warranties set forth on Exhibit 2 to
this Agreement) shall be true and correct as of the Closing Date (to the extent
of the standard, if any, set forth in each representation and warranty).
(b) (b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and reasonably acceptable to the
Seller or the Purchaser, as applicable, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof.
(c) (c) The Seller shall have delivered and released to the
Purchaser or its designee all documents required to be delivered to the
Purchaser as of the Closing Date pursuant to Section 2 of this Agreement.
(d) (d) The result of the examination and audit performed by the Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory to the
Purchaser and its
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affiliates in their sole determination and the parties shall have agreed to the
form and contents of the Seller's Information to be disclosed in the Memorandum
and the Prospectus Supplement.
(e) (e) All other terms and conditions of this Agreement
required to be complied with on or before the Closing Date shall have been
complied with, and the Seller and the Purchaser shall have the ability to comply
with all terms and conditions and perform all duties and obligations required to
be complied with or performed after the Closing Date.
(f) (f) The Seller shall have paid all fees and expenses
payable by it to the Purchaser pursuant to Section 8 hereof.
(g) (g) The Certificates to be so rated shall have been
assigned ratings by each Rating Agency no lower than the ratings specified for
each such Class in the Memorandum and the Prospectus Supplement.
(h) (h) Neither Underwriter shall have terminated the
Underwriting Agreement and neither Initial Purchaser shall have terminated the
Certificate Purchase Agreement.
(i) (i) The Seller shall have received the purchase price for
the Mortgage Loans pursuant to Section 1 hereof.
All parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
Section 7 SECTION 7. Closing Documents. The Closing Documents
shall consist of the following:
(a) (a) This Agreement duly executed by the Purchaser and the
Seller.
(b) (b) A certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) (c) True, complete and correct copies of the Seller's
articles of incorporation and by-laws.
(d) (d) A certificate of existence for the Seller from the
Secretary of State of New York dated not earlier than 30 days prior to the
Closing Date.
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(e) (e) A certificate of the Secretary or Assistant Secretary
of the Seller, dated the Closing Date, and upon which the Purchaser may rely, to
the effect that each individual who, as an officer or representative of the
Seller, signed this Agreement or any other document or certificate delivered on
or before the Closing Date in connection with the transactions contemplated
herein, was at the respective times of such signing and delivery, and is as of
the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures.
(f) (f) An opinion of counsel (which, other than as to the
opinion described in paragraph (vi) below, may be in-house counsel) to the
Seller, dated the Closing Date, substantially to the effect of the following
(with such changes and modifications as the Purchaser may approve and subject to
such counsel's reasonable qualifications):
(i) (i) The Seller is validly existing under New York law and
has full corporate power and authority to enter into and perform its
obligations under this Agreement.
(ii) (ii) This Agreement has been duly authorized, executed
and delivered by the Seller.
(iii) (iii) No consent, approval, authorization or order of
any federal court or governmental agency or body is required for the
consummation by the Seller of the transactions contemplated by the
terms of this Agreement except any approvals as have been obtained.
(iv) (iv) Neither the execution, delivery or performance of
this Agreement by the Seller, nor the consummation by the Seller of any
of the transactions contemplated by the terms of this Agreement (A)
conflicts with or results in a breach or violation of, or constitute a
default under, the charter documents of the Seller, (B) to the
knowledge of such counsel, constitutes a default under any term or
provision of any material agreement, contract, instrument or indenture,
to which the Seller is a party or by which it or any of its assets is
bound or result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant
to this Agreement, or (C) conflicts with or results in a breach or
violation of any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict,
breach or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the
consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations
and duties hereunder or result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Seller, or in any material impairment of the right or ability of the
Seller to carry on its business substantially as now conducted
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(v) (v) To his or her knowledge, there are no legal or
governmental actions, investigations or proceedings pending to which
the Seller is a party, or threatened against the Seller, (a) asserting
the invalidity of this Agreement or (b) which materially and adversely
affect the performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement.
(vi) (vi) This Agreement is a valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by (1) laws
relating to bankruptcy, insolvency, reorganization, receivership or
moratorium, (2) other laws relating to or affecting the rights of
creditors generally, (3) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law) or (4) public policy considerations underlying the securities
laws, to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement that purport to
provide indemnification from liabilities under applicable securities
laws.
Such opinion may express its reliance as to factual matters
on, among other things specified in such opinion, the representations and
warranties made by, and on certificates or other documents furnished by officers
of, the parties to this Agreement.
In rendering the opinions expressed above, such counsel may
limit such opinions to matters governed by the federal laws of the United States
and the corporate laws of the State of Delaware and the State of New York, as
applicable.
(g) (g) Such other opinions of counsel as any Rating Agency
may request in connection with the sale of the Mortgage Loans by the Seller to
the Purchaser or the Seller's execution and delivery of, or performance under,
this Agreement.
(h) (h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) (i) Such further certificates, opinions and documents as
the Purchaser may reasonably request.
(j) (j) An officer's certificate of the Purchaser, dated as of
the Closing Date, with the resolutions of the Purchaser authorizing the
transactions described herein attached thereto, together with certified copies
of the charter, by-laws and certificate of good standing of the Purchaser dated
not earlier than 30 days prior to the Closing Date.
(k) (k) Such other certificates of the Purchaser's officers or
others and such other documents to evidence fulfillment of the conditions set
forth in this Agreement as the Seller or its counsel may reasonably request.
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(l) (l) An executed Bill of Sale in the form attached hereto
as Exhibit 4.
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Section 8 SECTION 8. Costs. The Seller shall pay the Purchaser
costs and expenses as otherwise agreed upon between the Seller and the
Purchaser.
Section 9 SECTION 9. Notices. All communications provided for
or permitted hereunder shall be in writing and shall be deemed to have been duly
given if (a) personally delivered, (b) mailed by registered or certified mail,
postage prepaid and received by the addressee, (c) sent by express courier
delivery service and received by the addressee, or (d) transmitted by telex or
facsimile transmission (or any other type of electronic transmission agreed upon
by the parties) and confirmed by a writing delivered by any of the means
described in (a), (b) or (c), if (i) to the Purchaser, addressed to Morgan
Stanley Capital I Inc., 1585 Broadway, New York, New York 10036, Attention:
Pamela Hudson, with a copy to Morgan Stanley Capital I Inc., 1585 Broadway, New
York, New York 10036, Attention: General Counsel (or such other address as may
hereafter be furnished in writing by the Purchaser), or (ii) if to the Seller,
addressed to the Seller at Morgan Stanley Mortgage Capital Inc., 1585 Broadway,
New York, New York 10036, Attention: Pamela Hudson, (or to such other address as
the Seller may designate in writing with copies to the attention of Gregory
Walker, Esq.).
Section 10 SECTION 10. Severability of Provisions. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or which is held to be void or unenforceable shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation, warranty or
covenant of this Agreement that is prohibited or unenforceable or is held to be
void or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
Section 11 SECTION 11. Further Assurances. The Seller and the
Purchaser each agree to execute and deliver such instruments and take such
actions as the other may, from time to time, reasonably request in order to
effectuate the purpose and to carry out the terms of this Agreement and the
Pooling and Servicing Agreement.
Section 12 SECTION 12. Survival. Each party hereto agrees that
the representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
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Section 13 SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE
RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF
THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 14 SECTION 14. Benefits of Mortgage Loan Purchase
Agreement. This Agreement shall inure to the benefit of and shall be binding
upon the Seller, the Purchaser and their respective successors, legal
representatives, and permitted assigns and nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this Agreement,
or any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that the
rights and obligations of the Purchaser pursuant to Sections 2, 4(a) (other than
clause (vii)), 5, 11 and 12 hereof may be assigned to the Trustee as may be
required to effect the purposes of the Pooling and Servicing Agreement and, upon
such assignment, the Trustee shall succeed to the rights and obligations
hereunder of the Purchaser. No owner of a Certificate issued pursuant to the
Pooling and Servicing Agreement shall be deemed a successor or permitted assigns
because of such ownership.
Section 15 SECTION 15. Miscellaneous. This Agreement may be
executed in two or more counterparts, each of which when so executed and
delivered shall be an original, but all of which together shall constitute one
and the same instrument. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Seller is a party, or any person succeeding to the entire business of the
Seller shall be the successor to the Seller hereunder.
SECTION 16. Entire Agreement. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof (other than the Engagement Letter referred to in
Section 8 above, the Letter of Understanding, the Indemnification Agreement and
the Pooling and Servicing Agreement), and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any course
of performance or usage of the trade inconsistent with any of the terms hereof.
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IN WITNESS WHEREOF, the Purchaser and the Seller have caused
this Agreement to be executed by their respective duly authorized officers as of
the date first above written.
MORGAN STANLEY MORTGAGE CAPITAL INC.
By: _________________________________________
Name:
Title
MORGAN STANLEY CAPITAL I INC.
By: _________________________________________
Name: Russell Rahbany
Title: Vice President
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EXHIBIT 1
MORTGAGE LOAN SCHEDULE
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(Representations and Warranties with respect to MSMC Loans)
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule is complete, true and correct in all material respects as
of the date of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan
is a whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and
interest under any Mortgage Loan was 30 days or more past due as of the Cut-Off
Date, and no Mortgage Loan was 30 days or more delinquent in the twelve-month
period immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and, subject
to the exceptions set forth in paragraph 13 below, enforceable first priority
lien upon the related Mortgaged Property, prior to all other liens and
encumbrances, except for (a) the lien for current real estate taxes and
assessments not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters that are of public record and/or are
referred to in the related lender's title insurance policy, (c) exceptions and
exclusions specifically referred to in such lender's title insurance policy, and
(d) other matters to which like properties are commonly subject, none of which
matters referred to in clauses (b), (c) or (d) materially interferes with the
security intended to be provided by such Mortgage, the marketability or current
use of the Mortgaged Property or the current ability of the Mortgaged Property
to generate operating income sufficient to service the Mortgage Loan debt (the
foregoing items (a) through (d) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security interest in
favor of the holder
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thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate, the related Mortgaged Property. A Uniform
Commercial Code financing statement has been filed and/or recorded in all places
necessary to perfect a valid security interest in such personal property, to the
extent a security interest may be so created therein, and such security interest
is a first priority security interest, subject to any prior purchase money
security interest in such personal property and any personal property leases
applicable to such personal property. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in rents or
other personal property to the extent that possession or control of such items
or actions other than the filing of Uniform Commercial Code financing statements
are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases
set forth in the Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien and
first priority security interest in the related Mortgagor's interest in all
leases, sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage has been executed and delivered in favor of the Trustee
and is in recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has
been satisfied, cancelled, rescinded or subordinated in whole or in material
part, and the related Mortgaged Property has not been released from the lien of
such Mortgage, in whole or in material part, nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release, except for any partial reconveyances of real property
which are included in the related Mortgage File. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived,
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File.
7. Condition of Property; Condemnation. Except as set forth in
an engineering report prepared in connection with the origination of the related
Mortgage Loan, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage that would materially and adversely affect its value as
security for the related Mortgage Loan. The Seller has received no notice of the
commencement of any proceeding for the condemnation of all or any material
portion of any Mortgaged Property. To the Seller's knowledge (based on surveys
and/or title insurance obtained in connection with the origination of the
Mortgage Loans), as of the date of the origination of each Mortgage Loan, all of
the material improvements on the related Mortgaged Property which were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon
2-2
<PAGE>
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy (the "Title Policy") in the original principal amount of the
related Mortgage Loan after all advances of principal. Each Title Policy insures
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein (or an escrow letter or
a marked up title insurance commitment on which the required premium has been
paid exists which evidences that such Title Policy will be issued). Each Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid and no material
claims have been made thereunder and no claims have been paid thereunder. No
mortgagee under the related Mortgage has done, by act or omission, anything that
would materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Mortgage Loan to the
Trustee, such Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of the Trustee without the consent
of or notice to the insurer. To the Seller's knowledge, the insurer issuing such
Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been
fully disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
funds escrowed for such purpose that were to have been complied with on or
before the Closing Date have been complied with, or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for
each Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of
trust, (1) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (2) no fees or expenses
are payable to such trustee by the Seller, the Purchaser or any transferee
thereof except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions. An environmental site assessment
was performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse
2-3
<PAGE>
environmental condition or circumstance affecting any Mortgaged Property that
was not disclosed in such report. Each Mortgage requires the related Mortgagor
to comply with all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a material and
adverse environmental condition or circumstance affecting any Mortgaged
Property, (i) a party not related to the Mortgagor was identified as the
responsible party for such condition or circumstance, (ii) recourse to a
clean-up remediation or reimbursement fund was available under applicable state
law, (iii) state law provides for a mechanism implemented by the related
Mortgagor by which such environmental condition or circumstance is brought into
compliance with applicable law and does not pose an imminent threat to health or
safety, (iv) environmental insurance covering such condition was obtained or
must be maintained until the condition is remediated, or (v) the related
Mortgagor was required either to provide additional security which was deemed to
be sufficient by the originator in light of the circumstances and/or to obtain
an operations and maintenance plan.
13. Loan Document Status. Each Mortgage Note, Mortgage and
other agreement that evidences or secures a Mortgage Loan and that was executed
by or on behalf of the related Mortgagor is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements.
14. Insurance. Each Mortgaged Property is, and is required
pursuant to the related Mortgage, to be insured by (a) a fire and extended
perils insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles and smoke, and, to the extent
required as of the date of origination by the originator of such Mortgage Loan
consistent with its normal commercial mortgage lending practices, against other
risks insured against by persons operating like properties in the locality of
the Mortgaged Property in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the Mortgaged
Property, and not less than the amount necessary to avoid the operation of any
co-insurance provisions with respect to the Mortgaged Property; (b) a business
interruption or rental loss insurance policy, in an amount at least equal to six
months of operations of the Mortgaged Property; (c) a flood insurance policy (if
any portion of buildings or other structures on the Mortgaged Property are
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards); and (d) a comprehensive general liability
insurance policy in amounts as are generally required by commercial mortgage
lenders, and in any event not less than $1 million per occurrence. Such
insurance policy contains a standard mortgagee clause that names the mortgagee
as an additional insured and requires prior notice to the holder of the Mortgage
of termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related
2-4
<PAGE>
Mortgagor to maintain all such insurance and, upon such Mortgagor's failure to
do so, authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from such
Mortgagor. Each Mortgage provides that casualty insurance proceeds will be
applied either to the restoration or repair of the related Mortgaged Property or
to the reduction of the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are
no delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property which are or may become a lien of priority equal to or higher than the
lien of the related Mortgage. For purposes of this representation and warranty,
real property taxes and assessments shall not be considered unpaid until the
date on which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to the Seller's
knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple estate.
18. Escrow Deposits. All escrow deposits and payments relating
to each Mortgage Loan that are, as of the Closing Date, required to be deposited
or paid have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property having a fair market value (i) at the date the
Mortgage Loan was originated, at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (ii) at the Closing Date, at least
equal to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (x) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (a)(i) and (a)(ii) of
this paragraph 19 shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans); or (b) substantially all the proceeds of such Mortgage Loan
were used to acquire, improve or protect the real property which served as the
only security for such Mortgage Loan (other than a recourse feature or other
third party credit enhancement within the meaning of Treasury Regulations
Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default or reasonably foreseeable default of such Mortgage Loan or (b)
satisfies the provisions of either clause (a)(i) of
2-5
<PAGE>
paragraph 19 (substituting the date of the last such modification for the date
the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19, including
the proviso thereto.
21. Advancement of Funds by the Seller. No holder of a
Mortgage Loan has advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by such
Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and
clear of any and all mechanics' and materialmen's liens that are prior or equal
to the lien of the related Mortgage, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied
with all applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the
next sentence, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property that was included
in the appraisal for such Mortgaged Property, and/or generates income from the
lien of the related Mortgage except upon payment in full of all amounts due
under the related Mortgage Loan. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a release
price and prepayment consideration in connection therewith. . Except as
described in the first sentence hereof and for those Mortgage Loans identified
on Schedule A, no Mortgage Loan permits the release or substitution of
collateral unless the mortgagee can require the Borrower to provide an opinion
of tax counsel to the effect that such release or substitution of collateral (a)
would not constitute a "significant modification" of such Mortgage Loan within
the meaning of Treas. Reg. ss.1.1001-3 and (b) would not cause such Mortgage
Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the lender or provides for
negative amortization or for any contingent or additional interest in the form
of participation in the cash flow of the related Mortgaged Property.
27. No Material Default. To the Seller's knowledge, there
exists no material default, breach, violation or event of acceleration (and no
event which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided,
2-6
<PAGE>
however, that this representation and warranty does not address or otherwise
cover any default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any of paragraphs 3, 7, 12, 14, 15, 16 and 17 of
this Exhibit 2.
28. Inspections. The Seller (or if the Seller is not the
originator, the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of the
related Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part of
each Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal or internal or external market study performed at origination.
30. Junior Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any lien junior to or of equal
priority with the lien of the related Mortgage without the prior written consent
of the holder thereof or the satisfaction of debt service coverage or similar
criteria specified therein. The Seller has no knowledge that any of the
Mortgaged Properties is encumbered by any lien junior to the lien of the related
Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor or
related Mortgaged Property that might adversely affect title to the Mortgage
Loan or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by
the Seller have been in all material respects legal, proper and prudent and have
met customary industry standards.
33. Licenses and Permits. To the Seller's knowledge, based on
due diligence that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage Loan, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgage Property as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged
Property is operated as an assisted living facility, to the Seller's knowledge
(a) the related Mortgagor is in compliance in all material respects with all
federal and state laws applicable to the use and operation of the related
Mortgaged Property and (b) if the operator of the Mortgaged Property
participates in Medicare or Medicaid programs, the facility is in compliance in
all material respects with the requirements for participation in such programs.
2-7
<PAGE>
35. Collateral in Trust. The Mortgage Note for each Mortgage
Loan is not secured by any collateral that is not included in the Trust.
36. Valid Assignment. The assignment of the related Mortgage
in favor of the Trustee constitutes a legal, valid and binding assignment by the
Seller.
37. Due on Sale. Each Mortgage Loan contains a "due on sale"
clause, which provides for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any material
portion thereof, is transferred, sold or encumbered by a junior mortgage or deed
of trust; provided, however, that certain Mortgage Loans provide a mechanism for
the assumption of the loan by a third party upon the Mortgagor's satisfaction of
certain conditions precedent, and upon payment of a transfer fee, if any, or
transfer of interests in the Mortgagor or constituent entities of the Mortgagor
to a third party or parties related to the Mortgagor upon the Mortgagor's
satisfaction of certain conditions precedent.
38. Non-Recourse Exceptions. The Mortgage Loan documents for
each Mortgage Loan provide that such Mortgage Loan constitutes the non-recourse
obligations of the related Mortgagor and non-recourse guarantors, if any, except
that either (i) such provision does not apply in the case of fraud by the
Mortgagor or (ii) such documents provide that the Mortgagor shall be liable to
the holder of the Mortgage Loan for losses incurred as a result of fraud by the
Mortgagor.
2-8
<PAGE>
Schedule A
Exceptions to Representations and Warranties
<PAGE>
EXHIBIT 3
PRICING FORMULATION
3-1
<PAGE>
EXHIBIT 4
BILL OF SALE
1. PARTIES. The parties to this Bill of Sale are the
following:
Seller: Morgan Stanley Mortgage Capital Inc.
Purchaser: Morgan Stanley Capital I Inc.
2. SALE. For value received, the Seller hereby conveys to the
Purchaser, without recourse, all right, title and interest in and to the
Mortgage Loans identified on Exhibit 1 (the "Mortgage Loan Schedule") to the
Mortgage Loan Purchase Agreement, dated as of July 28, 1999 (the "Mortgage Loan
Purchase Agreement"), between the Seller and the Purchaser and all of the
following property:
(a) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the Mortgage Loan
Schedule including the related Mortgage Notes, Mortgages, security
agreements, and title, hazard and other insurance policies, all
distributions with respect thereto payable after the Cut-Off Date, all
substitute or replacement Mortgage Loans and all distributions with
respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property, and other rights arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable with
respect to, or claims against other Persons with respect to, all or any
part of the collateral described in clause (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the collateral described
in clauses (a) and (b) above.
3. PURCHASE PRICE. The amount set forth on Exhibit 3 to the
Mortgage Loan Purchase Agreement.
4. DEFINITIONS. Terms used but not defined herein shall have
the meanings assigned to them in the Mortgage Loan Purchase Agreement.
4-1
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this
Bill of Sale to be duly executed and delivered on this __ day of August, 1999.
SELLER: MORGAN STANLEY MORTGAGE CAPITAL INC.
By: _________________________________________
Name:
Title:
PURCHASER: MORGAN STANLEY CAPITAL I INC.
By: __________________________________________
Name: Russell Rahbany
Title: Vice President
4-2
<PAGE>
EXHIBIT L
FORM OF INSPECTION REPORT
L-1
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================================
WELLS FARGO
COMMERCIAL MORTGAGE SERVICING
ANNUAL PROPERTY EVALUATION REPORT - OFFICE/RETAIL/IND. Report Date: Lender No:
==================================================================================================================================
<S> <C> <C>
- -------------------------------------------------------------------------
WFRF File No:
- -------------------------------------------------------------------------
Property Address:
- -------------------------------------------------------------------------
Property Type:
- -------------------------------------------------------------------------
Primary Use:
- -------------------------------------------------------------------------
Secondary Use:
- -------------------------------------------------------------------------
Other Use:
- -------------------------------------------------------------------------
Current Occupancy:
- -------------------------------------------------------------------------
Building Size Net:
- -------------------------------------------------------------------------
No. Of Buildings:
- -------------------------------------------------------------------------
No. Of Units:
- -------------------------------------------------------------------------
==================================================================================================================================
Year Built: Managed by:
- ----------------------------------------------------------------------------------------------------------------------------------
Year Renovated: Phone:
- ----------------------------------------------------------------------------------------------------------------------------------
Land Size: On-Site:
==================================================================================================================================
==================================================================================================================================
Date of Property Inspection: Inspected by:
- ----------------------------------------------------------------------------------------------------------------------------------
Date Reviewed: Reviewed by:
- ----------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Condition of the Property (Attach Photographs - Exterior, Interior and Neighboring: Properties):
- ------------------------------------------------------------------------------------------------
Deferred
Exterior Excellent Good Fair Poor Maintenance
- --------
<S> <C> <C> <C> <C> <C>
Landscaping [ ] [ ] [ ] [ ] [ ]
Paved Areas [ ] [ ] [ ] [ ] [ ]
Sidewalks [ ] [ ] [ ] [ ] [ ]
Exterior Finish [ ] [ ] [ ] [ ] [ ]
Roof [ ] [ ] [ ] [ ] [ ]
General Maintenance [ ] [ ] [ ] [ ] [ ]
- ----------------------------------------------------------------------------------------------------------------------------------
Comments (explain deferred maintenance):
==================================================================================================================================
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
Page 1 of 2
<PAGE>
<TABLE>
<CAPTION>
Deferred
Interior Excellent Good Fair Poor N/A Maintenance
- --------
<S> <C> <C> <C> <C> <C> <C>
Entry/Hallways [ ] [ ] [ ] [ ] [ ] [ ]
Walls/Ceilings [ ] [ ] [ ] [ ] [ ] [ ]
Lighting [ ] [ ] [ ] [ ] [ ] [ ]
Carpet/Floor Covering [ ] [ ] [ ] [ ] [ ] [ ]
Stairs [ ] [ ] [ ] [ ] [ ] [ ]
Elevators [ ] [ ] [ ] [ ] [ ] [ ]
Kitchen/Bathrooms [ ] [ ] [ ] [ ] [ ] [ ]
HVAC/Mechanical [ ] [ ] [ ] [ ] [ ] [ ]
Functional Utility [ ] [ ] [ ] [ ] [ ] [ ]
Overall Physical Condition [ ] [ ] [ ] [ ] [ ] [ ]
- ----------------------------------------------------------------------------------------------------------------------------------
Comments:
</TABLE>
<TABLE>
<CAPTION>
==================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
Market Strength Strong Stable Weak
[ ] [ ] [ ]
Economic Trend Improving Stable Declining
[ ] [ ] [ ]
Neighborhood Trend Improving Stable Declining
[ ] [ ] [ ]
Maintenance of
Neighboring properties Excellent Good Fair Poor
[ ] [ ] [ ] [ ]
Occupancy of
Neighboring Properties Excellent Good Fair Poor
[ ] [ ] [ ] [ ]
</TABLE>
<TABLE>
<CAPTION>
Competitive Rental Properties
- ----------------------------------------------------------------------------------------------------------------------------------
# Units Condition
Proximity to or Unit Avg. Unit Rent Compared to
Project Name Address Subject Square Feet Types Rent per s/f Subject
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Comments:
==================================================================================================================================
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
Page 2 of 2
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================================
WELLS FARGO
COMMERCIAL MORTGAGE SERVICING
ANNUAL PROPERTY EVALUATION REPORT - OFFICE/RETAIL/IND. Report Date: Lender No:
==================================================================================================================================
<S> <C> <C>
- -------------------------------------------------------------------------
WFRF File No:
- -------------------------------------------------------------------------
Property Address:
- -------------------------------------------------------------------------
Property Type:
- -------------------------------------------------------------------------
Primary Use:
- -------------------------------------------------------------------------
Secondary Use:
- -------------------------------------------------------------------------
Other Use:
- -------------------------------------------------------------------------
Current Occupancy:
- -------------------------------------------------------------------------
Building Size Net:
- -------------------------------------------------------------------------
No. Of Buildings:
- -------------------------------------------------------------------------
No. Of Units:
- -------------------------------------------------------------------------
==================================================================================================================================
Year Built: Managed by:
- ----------------------------------------------------------------------------------------------------------------------------------
Year Renovated: Phone:
- ----------------------------------------------------------------------------------------------------------------------------------
Land Size: On-Site:
==================================================================================================================================
==================================================================================================================================
Date of Property Inspection: Inspected by:
- ----------------------------------------------------------------------------------------------------------------------------------
Date Reviewed: Reviewed by:
- ----------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Condition of the Property (Attach Photographs - Exterior, Interior and Neighboring: Properties):
- ------------------------------------------------------------------------------------------------
Deferred
Exterior Excellent Good Fair Poor Maintenance
- --------
<S> <C> <C> <C> <C> <C>
Landscaping [ ] [ ] [ ] [ ] [ ]
Paved Areas [ ] [ ] [ ] [ ] [ ]
Sidewalks [ ] [ ] [ ] [ ] [ ]
Exterior Finish [ ] [ ] [ ] [ ] [ ]
Roof [ ] [ ] [ ] [ ] [ ]
General Maintenance [ ] [ ] [ ] [ ] [ ]
- ----------------------------------------------------------------------------------------------------------------------------------
Comments (explain deferred maintenance):
==================================================================================================================================
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
Page 1 of 2
<PAGE>
<TABLE>
<CAPTION>
Deferred
Interior Excellent Good Fair Poor N/A Maintenance
- --------
<S> <C> <C> <C> <C> <C> <C>
Entry/Hallways [ ] [ ] [ ] [ ] [ ] [ ]
Walls/Ceilings [ ] [ ] [ ] [ ] [ ] [ ]
Lighting [ ] [ ] [ ] [ ] [ ] [ ]
Carpet/Floor Covering [ ] [ ] [ ] [ ] [ ] [ ]
Stairs [ ] [ ] [ ] [ ] [ ] [ ]
Elevators [ ] [ ] [ ] [ ] [ ] [ ]
Kitchen/Bathrooms [ ] [ ] [ ] [ ] [ ] [ ]
HVAC/Mechanical [ ] [ ] [ ] [ ] [ ] [ ]
Functional Utility [ ] [ ] [ ] [ ] [ ] [ ]
Overall Physical Condition [ ] [ ] [ ] [ ] [ ] [ ]
----------------------------------------------------------------------------------------------------------------------------------
Comments:
</TABLE>
<TABLE>
<CAPTION>
==================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
Market Strength Strong Stable Weak
[ ] [ ] [ ]
Economic Trend Improving Stable Declining
[ ] [ ] [ ]
Neighborhood Trend Improving Stable Declining
[ ] [ ] [ ]
Maintenance of
Neighboring properties Excellent Good Fair Poor
[ ] [ ] [ ] [ ]
Occupancy of
Neighboring Properties Excellent Good Fair Poor
[ ] [ ] [ ] [ ]
- ---------------------------------------------------------------------------------------------------------------------------------
Regional Analysis:
=================================================================================================================================
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
Page 2 of 2
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================================
WELLS FARGO
COMMERCIAL MORTGAGE SERVICING
ANNUAL PROPERTY EVALUATION REPORT - OFFICE/RETAIL/IND. Report Date: Lender No:
==================================================================================================================================
<S> <C> <C>
- -------------------------------------------------------------------------
WFRF File No:
- -------------------------------------------------------------------------
Property Address:
- -------------------------------------------------------------------------
Property Type:
- -------------------------------------------------------------------------
Primary Use:
- -------------------------------------------------------------------------
Secondary Use:
- -------------------------------------------------------------------------
Other Use:
- -------------------------------------------------------------------------
Current Occupancy:
- -------------------------------------------------------------------------
Building Size Net Rentable: s/f
- -------------------------------------------------------------------------
No. of Buildings:
- -------------------------------------------------------------------------
No. Of Units:
- -------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
==================================================================================================================================
Apt Unit Breakdown:
<S> <C> <C> <C> <C> <C>
Studio # _________ Rent __________ 1 BR # ______________ Rent ________________ 2 BR # _____________ Rent ___________
3 Br # _________ Rent __________ Other ______________ Rent ________________ Description: _________________________
Year Built:
- ----------------------------------------------------------------------------------------------------------------------------------
Year Renovated: Offsite Management:
- ----------------------------------------------------------------------------------------------------------------------------------
Land Size: Phone:
- ----------------------------------------------------------------------------------------------------------------------------------
# of Parking Spaces: Covered Uncovered On-Site Contact:
- ----------------------------------------------------------------------------------------------------------------------------------
==================================================================================================================================
Date of Property Inspection: Inspected by:
- ----------------------------------------------------------------------------------------------------------------------------------
Date Reviewed: Reviewed by:
- ----------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Condition of the Property (Attach Photographs - Exterior, Interior and Neighboring Properties):
- -----------------------------------------------------------------------------------------------
Deferred
Exterior Excellent Good Fair Poor Maintenance
- --------
<S> <C> <C> <C> <C> <C>
Landscaping [ ] [ ] [ ] [ ] [ ]
Paved Areas [ ] [ ] [ ] [ ] [ ]
Sidewalks [ ] [ ] [ ] [ ] [ ]
Exterior Finish [ ] [ ] [ ] [ ] [ ]
Roof [ ] [ ] [ ] [ ] [ ]
General Maintenance [ ] [ ] [ ] [ ] [ ]
- ----------------------------------------------------------------------------------------------------------------------------------
Comments (explain deferred maintenance):
==================================================================================================================================
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
Page 1 of 2
<PAGE>
<TABLE>
<CAPTION>
Deferred
Interior Excellent Good Fair Poor N/A Maintenance
- --------
<S> <C> <C> <C> <C> <C> <C>
Entry/Hallways [ ] [ ] [ ] [ ] [ ] [ ]
Walls/Ceilings [ ] [ ] [ ] [ ] [ ] [ ]
Lighting [ ] [ ] [ ] [ ] [ ] [ ]
Carpet/Floor Covering [ ] [ ] [ ] [ ] [ ] [ ]
Stairs [ ] [ ] [ ] [ ] [ ] [ ]
Elevators [ ] [ ] [ ] [ ] [ ] [ ]
Kitchen/Bathrooms [ ] [ ] [ ] [ ] [ ] [ ]
HVAC/Mechanical [ ] [ ] [ ] [ ] [ ] [ ]
Functional Utility [ ] [ ] [ ] [ ] [ ] [ ]
Overall Physical Condition [ ] [ ] [ ] [ ] [ ] [ ]
----------------------------------------------------------------------------------------------------------------------------------
Comments:
</TABLE>
<TABLE>
<CAPTION>
==================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
Market Strength Strong Stable Declining
[ ] [ ] [ ]
Economic Trend Improving Stable Declining
[ ] [ ] [ ]
Neighborhood Trend Improving Stable Declining
[ ] [ ] [ ]
Maintenance of
Neighboring properties Excellent Good Fair Poor
[ ] [ ] [ ] [ ]
Occupancy of
Neighboring Properties Excellent Good Fair Poor
[ ] [ ] [ ] [ ]
- ---------------------------------------------------------------------------------------------------------------------------------
Regional Analysis:
=================================================================================================================================
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
Page 2 of 2
<PAGE>
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
SUBSTANTIALLY SIMILAR TO THE INFORMATION
REPEATED IN THE FORM OF STATEMENT TO
CERTIFICATEHOLDERS IN THE
PROSPECTUS SUPPLEMENT
M-1
<PAGE>
EXHIBIT N
FORM OF ANNUAL REPORT
N-1
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------
WELLS FARGO - OPERATING STATEMENT REVIEW
- ----------------------------------------------------------------------------
-----------------------------------
<S> <C> <C> <C> <C>
LOAN #
INVESTOR # 1999 WF2
-------------------
PROPERTY TYPE COMPLETED
-----
CITY / STATE REVIEWED
----------------------------------- -------------------
-------------- --------------- --------------- --------------
# OF MONTHS 12 12 12
ANNUALIZED (Y/N) No No No
-------------- --------------- --------------- --------------
12/31/1999 12/31/1998 12/31/1997 AT ISSUE
-------------- --------------- --------------- --------------
GROSS RENTS
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
REIMBURSEMENTS
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
TOTAL INCOME 0 0
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
VACANCY
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
DISCOUNTS/CONCESSIONS
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
OTHER INCOME
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
EFFECTIVE GROSS INCOME 0 0 0 0
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
PROPERTY TAXES
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
INSURANCE
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
UTILITIES
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
MANAGEMENT
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
MAINT & REPAIRS
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
SALARIES & ADMIN
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
ADVERTISING
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
GROUND LEASE
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
OTHER
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
TOTAL OPER EXPENSES 0 0 0 0
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
NOI 0 0 0 0
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
CAPITAL RESERVES
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
TI / LC RESERVES
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
OTHER
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
NOI 0 0 0 0
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
DEBT SERVICE
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
DSCR #DIV/0! #DIV/0! #DIV/0! #DIV/0!
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
OCCUPANCY
-------------- --------------- --------------- --------------
-------------- --------------- --------------- --------------
AS OF
-------------- --------------- --------------- --------------
COMMENTS
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN FURNISHED BY BORROWERS, PROPERTY MANAGERS,
OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY WELLS FARGO AS
TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
<PAGE>
EXHIBIT O
FORM OF SPECIAL SERVICER MONTHLY REPORT
O-1
<PAGE>
<TABLE>
<CAPTION>
Special Servicer Remittance Report
08/01/99
Mortgage Pass-Through Certificate Series
Determination Date: 08/10/1999
Due Period: 7/2/99 to 8/1/99
Calculation of Special Servicer Servicing Fees:
- -----------------------------------------------------------------------------------------
Stated Principal Special Date Net
Balance as of the Servicer Returned Liquidation
Borrower beginning of the Loan Transfer to Master Proceeds Liquidation
Loan # Name due period Date Servicer Fixed Pmt Fee
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Specially Serviced Mortgage Loans and REO Loans:
- -----------------------------------------------------------------------------------------
N/A
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
Total $0.00
- -----------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------
Assumption Administration Modification Forbearance Administration
Fees Fees Fees Fees Fees Fees
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- -------------------------------------------------------------
Special Servicing Fee:
Mortgage Principal Balance as of 8/1/99 $0.00
Special Servicing Fee Rate (.25%)/12
-----------------
Special Servicing Fee $0.00
-----------------
Additional Fee Collected $0.00
Specially Serviced Loans: 100% of Fee $0.00
Assumption Fees $0.00
Extension Fees $0.00
Modification Fees $0.00
Late Fees $0.00
Forbearance Fees $0.00
Non Specially Serviced Loans: 50% of Fee $0.00
Assumption and Extension Fees $0.00
Liquidation Fee:
(1% X Net Proceeds X Net Proceeds $0.00
------------
Principal + Interest
Total Additional Fees $0.00
Total Special Servicing Compensation Due: $0.00
-----------------
- -------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Transaction:
Delinquent and Determination Date:
Specially Serviced Asset Report Report Due Date:
- -----------------------------------------------------------------------------
SS Principal
Prospectus Loan Prop Maturity Transfer Paid Bal at
ID No Type City State Date Date to Date Transfer
- -----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------
----------------------------
Special Servicing Codes
----------------------------
- ------------------------------------------------------------------------------
Current Scheduled Transfer Workout Status Current Total
Principal Balance Reason Strategy of Loan Monthly P&I P&I
Balance ($000) (1) (2) (3) P&I Advance Advances
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- -------------------------------------------
(1) Transfer Reason Codes
1. Request for forbearance or modification
2. Payment default
3. Balloon default
4. Bankruptcy
5. Tax or Insurance advance
6. Default Imminent
7. Nonmonetary default
8. Other
- -------------------------------------------
- -------------------------------------------
(2) Workout Strategy Codes (CSSA)
1. Modification
2. Foreclosure
3. Bankruptcy
4. Extension
5. Note Sale
6. DPO
7. REO
8. Resolved
9. Pending Return to Master Servicer
10. Deed in Lieu of Foreclosure
11. For Payoff
12. Reps and warranties
13. Other or TBD
- -------------------------------------------
- -------------------------------------------
(3) Status of Loan Codes (CSSA)
0 Current or under 30 days
1 30-59 Days Delinquent
2 60-89 Days Delinquent
3 90+ Days Delinquent
4 Assumed Sched Payment (Performing
Matured Balloon)
6 Defeasance
7 Foreclosure
8 REO
- -------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Transaction:
Delinquent and Determination Date:
Specially Serviced Asset Report Report Due Date:
- --------------------------------------------------------------------------------------
Current Total Latest Latest Latest
Servicing Servicing Appraisal Appraisal NOI Annual Latest Occupancy Occupancy
Advance Advances Date Value Date NOI DSCR Date %
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
Latest
Inspection Resolution Foreclosure Bankruptcy REO Comments on status of loan,
Date Date Date Date Date negotiations, etc.
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CSSA STANDARD INFORMATION PACKAGE
DELINQUENT LOAN STATUS REPORT
AS OF __________________
S58, S62,
S4 S55 S61 S57 or S63 P8 P7 P37 P39
- --------------------------------------------------------------------------------------------
(a) (b) (c)
- --------------------------------------------------------------------------------------------
Total
Short Name Sq Ft Paid Scheduled P&I Total
Prospectus (When Property or Thru Loan Advances Expenses
ID Appropriate) Type City State Units Date Balance To Date To Date
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
LOANS IN FORECLOSURE AND NOT REO
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
10+ DAYS DELINQUENT
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
10 DAYS DELINQUENT
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
10 DAYS DELINQUENT
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
Current & Special Servicer
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
P58 or P73, P92
P38 P25 P10 P11 or P96, P93 or P97 P74
- -----------------------------------------------------------------------------------
(d) (e)=a+b+c+d (f)=P38/P31
- -----------------------------------------------------------------------------------
Value
Other using
Advances Current Current LTM LTM NOI
(Taxes & Total Monthly Interest Maturity NCF LTM DSCR & Cap Valuation
Escrow) Exposure P&I Rate Date Date NCF (NCF) Rate Date
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
FCL - Foreclosure
- ------------------------------------------------------------------------------------------------------------------------------------
LTM - Latest 12 Months either Last Annual, Trailing 12 months or normalized YTD
- ------------------------------------------------------------------------------------------------------------------------------------
* Workout Strategy should match the CSSA Loan file using abreviated words in place of a code number such as (FCL - in Foreclosure,
MOD - Modification, DPO - Discount Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payment Plan, TBD - To
- ------------------------------------------------------------------------------------------------------------------------------------
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 Option, Int - Internal Value
- ------------------------------------------------------------------------------------------------------------------------------------
*** How to determine the cap rate is agreed upon by Underwriter and special servicer - to be provided by a third party.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CSSA STANDARD INFORMATION PACKAGE
DELINQUENT LOAN STATUS REPORT
AS OF __________________
- -----------------------------------------------------------------------------------
S4 S55 S61 S57 S58 P75 P35
- -----------------------------------------------------------------------------------
(g)=(.90f)-e
- -----------------------------------------------------------------------------------
Appraisal Total
Short Name BPO or Loss using Appraisal
Prospectus (When Property Internal 90% Appr. Reduction
ID Appropriate) Type City State Value** or BPO(f) Realized
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
00+ DAYS DELINQUENT
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
60 DAYS DELINQUENT
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
80 DAYS DELINQUENT
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
Current & Special Servicer
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- --------------------------------------------------------
P77 P79 P42 P82 P76
- --------------------------------------------------------
- --------------------------------------------------------
FCL Expected
Transfer Resolution Start FCL Sale Workout
Date Date Date Date Strategy Comments
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
FCL - Foreclosure
- ---------------------------------------------------------------------------------------------------
LTM - Latest 12 Months either Last Annual, Trailing 12
- ---------------------------------------------------------------------------------------------------
** Workout Strategy should match the CSSA Loan file using Determined etc.)
- ---------------------------------------------------------------------------------------------------
It is possible to combine the status codes if the loan is go
- ---------------------------------------------------------------------------------------------------
** App - Appraisal, BPO - Broker opinion, Int - Internal Value
- ---------------------------------------------------------------------------------------------------
*** How to determine the cap rate is agreed upon by Underwriter
- ---------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CSSA STANDARD INFORMATION PACKAGE
REO STATUS REPORT
AS OF __________________
- --------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 S62 or P8 P7 P37 P19 P38
- --------------------------------------------------------------------------------------------------------
S63 (a) (b) (c) (d)
- --------------------------------------------------------------------------------------------------------
Allocated
Loan
Amount or Total Other
Short Name Sq Ft Paid Scheduled P&I Total Advances
Prospectus (When Property or Thru Loan Advances Expense (Taxes &
ID Apporpriate) Type City State Units Date Balance To Date To Date Escrow)
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
P58 or P73,
P25 P31 P93 or P97 P74 P75 P35
- ---------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (k) (f)=(?) (g) (b)=(30g)-t
- ---------------------------------------------------------------------------------------------------------
Appraisal
BPO or Appraisal Total
Current LTM LTM Value Using Internal BPO or Loan using Appraisal
Total Monthly Maturity NCF DSCR Valuation NOI & Cap Value Internal 90% Appr. Reduction
Expense P&I Date Date (NCF) Date Rate Square** Value or BPO 60 Realized
- ---------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
REO that are more than one loan should use the Allocated Loan Amount and prorate all advances and expenses.
- -----------------------------------------------------------------------------------------------------------
(1) Use the following codes; App - Appraisal, BPO - Brokers Options, Int - Internal Value
- -----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CSSA STANDARD INFORMATION PACKAGE
REO STATUS REPORT
AS OF __________________
- ---------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 P77 P82 P79
- ---------------------------------------------------------------------------------------------
Short Name REO Pending
Prospectus (When Property Transfer Acquisitions Resolution
ID Apporpriate) Type City State Date Date Date Comments
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------
- -------------------------------------------------------------
REO's that are more than one loan should use the
- -------------------------------------------------------------
(1) Use the following codes; App - Appraisal, BPO - Brokers
- -------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CSSA STANDARD INFORMATION PACKAGE
HISTORICAL LOAN MODIFICATION REPORT
AS OF __________________
S4 S57 P58 P39 P48 P74 P7* P50*
- ------------------------------------------------------------------------------------------------------
Extention Balance Balance at the
Mod/ per Docs When sent to Effective Date Month
Prospectus Extension or Effect Special of Old for Rate
ID City State Flag Service Date Servicer Rehabilitation Rate Change
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
- ------------------------------------------------------------------------------------------------------
Information is as of modification. Each time it should not change in the future.
Only new modifications should be added.
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
Total For All Loans:
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
Total For Loans in Current Month:
- ------------------------------------------------------------------------------------------------------
# of Loans $ Balance
- ------------------------------------------------------------------------------------------------------
Modifications
- ------------------------------------------------------------------------------------------------------
Maturity Date Extensions
- ------------------------------------------------------------------------------------------------------
Total:
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
* The information in these columns is as of a particular point in time and should not change
on this report once assigned.
- ------------------------------------------------------------------------------------------------------
Future modifications done on the same loan are additions to the report
- ------------------------------------------------------------------------------------------------------
(1) Actual principal loss taken by bonds
- ------------------------------------------------------------------------------------------------------
(2) Expected future loss due to a rate modification. This is just an estimate calculated at
the time of the modification.
- ------------------------------------------------------------------------------------------------------
P50* P25* P25 P11 P11 P47
- ----------------------------------------------------------------------------
(2) Est.
Future
Interest
Total (I) Loss to
Mths Realized Trust $
New Old New Old New For Change Loss to (Rate
Rate P&I P&I Maturity Maturity of Mod Trust $ Reduction) COMMENT
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CSSA STANDARD INFORMATION PACKAGE
HISTORICAL LIQUIDATION REPORT (REO-SOLD, DISCOUNTED PAYOFF OR NOTE SALE)
AS OF __________________
- -------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 P45/P7 P75 P45 P7 P37
- -------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b) (d) (e) (f)
- -------------------------------------------------------------------------------------------------------------------------
Latest
Short Name Received Appraisal Effect Net Amt
Prospectus (When Property From or Brokers Date of Sales Received Scheduled Total P&I
ID Appropriate) Type City State Liquidation Opinion Liquidation Price From Sale Balance Advanced
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <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:
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
P39+P38
- --------------------------------------------------------------------------------------
(g) (b) (i)=d(fg+h) (k)=i-e (m) (n)=k+m (o)=n+c
- --------------------------------------------------------------------------------------
Actual Minor Minor Total Loss %
Servicing Losses Date Loss Adj Adj Loss of
Total Fees Net Passed Passed to Passed With Scheduled
Expenses Expense Proceeds Thru Thru Trust Thru Adjustment Balance
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT P
RESERVED
P-1
<PAGE>
EXHIBIT Q
FORM OF MORTGAGE LOAN INFORMATION
SUBSTANTIALLY SIMILAR TO THE INFORMATION
REPEATED IN APPENDIX II TO THE
PROSPECTUS SUPPLEMENT
Q-1
<PAGE>
EXHIBIT R
RESERVED
R2-1
<PAGE>
EXHIBIT S-1
FORM OF POWER OF ATTORNEY FOR MASTER SERVICER
RECORDING REQUESTED BY:
WELLS FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
WELLS FARGO BANK, N.A.
555 Montgomery Street, 17th Floor
San Francisco, CA 94111
Attention:Commercial Mortgage Pass-
Through Series 1999-LIFE
Space above this line for Recorder's use
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE ("Trustee"), under that certain
Pooling and Servicing Agreement dated as of August 1, 1999 (the "Pooling and
Servicing Agreement"), does hereby nominate, constitute and appoint WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Master Servicer under the Pooling and Servicing
Agreement ("Wells Fargo Bank"), as its true and lawful attorney-in-fact for it
and in its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or
appropriate to enable Wells Fargo Bank to service and administer the Mortgage
Loans (as defined in the Pooling and Servicing Agreement) in connection with the
performance by Wells Fargo Bank of its duties as Master Servicer under the
Pooling and Servicing Agreement, giving and granting unto Wells Fargo Bank full
power and authority to do and perform any and every act necessary, requisite, or
proper in connection with the foregoing and hereby ratifying, approving or
confirming all that Wells Fargo Bank shall lawfully do or cause to be done by
virtue hereof.
S-1-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this limited
power of attorney to be executed as of this ___ day of August, 1999.
LASALLE BANK NATIONAL ASSOCIATION, as trustee for
Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE
By: ______________________________________________
Name:_____________________________________________
Title: ___________________________________________
S-1-2
<PAGE>
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ____________________________ before me, ___________________________________
Date Name and Title of Officer
(i.e., Your Name, Notary Public)
personally appeared ___________________________________________________________
Name(s) of Document Signer(s)
- -------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
--------------------------------------------
Signature of Notary
(Affix seal in the above blank space)
<PAGE>
EXHIBIT S-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
WELLS FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
WELLS FARGO BANK, N.A.
555 Montgomery Street, 17th Floor
San Francisco, CA 94111
Attention:Commercial Mortgage Pass-
Through Series 1999-LIFE
Space above this line for Recorder's use
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE ("Trustee"), under that certain
Pooling and Servicing Agreement dated as of August 1, 1999 (the "Pooling and
Servicing Agreement"), does hereby nominate, constitute and appoint WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Special Servicer under the Pooling and Servicing
Agreement ("Wells Fargo Bank"), as its true and lawful attorney-in-fact for it
and in its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or
appropriate to enable Wells Fargo Bank to service and administer the Mortgage
Loans (as defined in the Pooling and Servicing Agreement) in connection with the
performance by Wells Fargo Bank of its duties as Special Servicer under the
Pooling and Servicing Agreement, giving and granting unto Wells Fargo Bank full
power and authority to do and perform any and every act necessary, requisite, or
proper in connection with the foregoing and hereby ratifying, approving or
confirming all that Wells Fargo Bank shall lawfully do or cause to be done by
virtue hereof.
S-2-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this limited
power of attorney to be executed as of this ___ day of August, 1999.
LASALLE BANK NATIONAL ASSOCIATION, as trustee for
Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-LIFE
By: ________________________________________________
Name:_______________________________________________
Title: _____________________________________________
S-2-2
<PAGE>
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ____________________________ before me, ___________________________________
Date Name and Title of Officer
(i.e., Your Name, Notary Public)
personally appeared ___________________________________________________________
Name(s) of Document Signer(s)
- -------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
--------------------------------------------
Signature of Notary
(Affix seal in the above blank space)
<PAGE>
EXHIBIT T
PROCEDURES FOR CALCULATING DEBT SERVICE COVERAGE RATIO
"Debt Service Coverage Ratios" generally means the ratio of
"Underwritable Cash Flow" estimated to be produced by the related Mortgaged
Property to the annualized amount of debt service payable under that Mortgage
Loan. "Underwritable Cash Flow" in each case is an estimate of stabilized cash
flow available for debt service. In general, it is the estimated stabilized
revenue derived from the use and operation of a Mortgaged Property (consisting
primarily of rental income) less the sum of (a) estimated stabilized operating
expenses (such as utilities, administrative expenses, repairs and maintenance,
management fees and advertising), (b) fixed expenses (such as insurance, real
estate taxes and, if applicable, ground lease payments) and (c) capital
expenditures and reserves for capital expenditures, including tenant improvement
costs and leasing commissions. Underwritable Cash Flow generally does not
reflect interest expenses and non-cash items such as depreciation and
amortization. In determining Underwritable Cash Flow for a Mortgaged Property,
the Master Servicer may rely on rent rolls and other generally unaudited
financial information provided by the respective borrowers and may estimate cash
flow taking into account historical financial statements, material changes in
the operating position of the Mortgaged Property, and estimated capital
expenditures, leasing commissions and tenant improvement reserves. The Master
Servicer may make certain changes to operating statements and operating
information obtained from the respective borrowers.
T-1
<PAGE>
EXHIBIT U
ASSIGNMENT AND ASSUMPTION SUBMISSION
TO SPECIAL SERVICER
U-1
<PAGE>
ASSIGNMENT AND ASSUMPTION SUBMISSION TO SPECIAL SERVICER
PRESENT BORROWER:
PROPOSED BORROWER:
PRIMARY SERVICER #:
SPECIAL SERVICER #
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office, etc.)
ADDRESS: PROPERTY ADDRESS
CITY, STATE, ZIP CODE
ASSET STATUS: As of (date)
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
INSURANCE ESCROW BALANCE: $
Reserve Escrow Balance: $
Monthly (P&I) Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Maturity Date
Origination Date:
EXECUTIVE SUMMARY:
1. Summarize the transaction;
2. Discuss proposed borrower entity and ownership structure;
3. How will title be held;
4. Source of cash for down payment;
5. Briefly describe collateral
A. Size, occupancy, primary tenants, location,
<PAGE>
B. Prior year NOI and DSCR and Pro-forma NOI DSCR;
2. Complete the chart below:
The sale terms and property characteristics are summarized as follows:
Purchase price $
Buyer down payment $ (%)
Estimated closing date
1% loan fee split: Principal Capital .25% - $
WFB, Master Serv. .25% - $
WFB Special Serv. .50% - $
Most recent appraised value according to appraisal $
in Primary Servicer's possession
Loan-to-value as if initial underwriting %
Occupancy as of %
12/31/98 NOI $
Debt service coverage x
FINANCIAL CONDITION OF PROPOSED BORROWER/GUARANTOR:
1. Explain background and experience of the proposed borrower/principals;
2. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued;
3. Highlight Balance sheet and Income statement
A. Describe significant assets
(e.g. obtain from borrower information about how it values its assets)
B. Related debt
1. For public companies that have historical financial information:
A. Spread Balance Sheet for minimum of two (2) years (request three (3)
years, if available)
B. Spread and commonsize Income statement for minimum of two (2)
years (request three (3) years, if available);
1. Explain results of credit checks, legal searches and banking credit
references (two required)
PROJECT STATUS & DESCRIPTION: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of
the property: (e.g. issues surrounding current occupancy, anchor tenants,
tenant rollover)
PROPERTY FINANCIAL SUMMARY: (See attached most recent Income and Expense
Statement for Mortgaged Property and year-to-date operating statements)
NEW ENVIRONMENTAL AND ENGINEERING DEVELOPMENTS (IF ANY) AND STATUS OF ISSUES
IDENTIFIED IN ORIGINAL REPORTS OR LOAN DOCUMENTS AS NEEDING REMEDIATION: (See
attached Asset Summary)
1. Describe any material issues requiring remediation contained in original
reports
2. Describe current status of issue and remediation
Appendix 2
<PAGE>
ESCROW STATUS:
1. Explain reserves
PROPERTY MANAGEMENT SUMMARY:
1. Who is proposed property management firm
2. Background and Experience
COLLATERAL VALUATION:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's possession
1. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
CURRENT MARKET CONDITIONS:
Briefly state material current real estate market dynamics and economic
influences that may affect the operational performance of the property.
RECOMMENDATION:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weakness mitigated? (bullet
points are fine)
Appendix 2
<PAGE>
REQUEST FOR SPECIAL SERVICER CONSENT:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing Assignment and Assumption.
[less than] [more than]
By: ________________________________________
Title: _____________________________________
Date: ______________________________________
Consent to Assignment & Assumption is given:
WELLS FARGO BANK, NATIONAL ASSOCIATION, acting solely in its capacity
as Special Servicer
By: _______________________________________
Title: _____________________________________
Date: _____________________________________
Appendix 2
<PAGE>
SCHEDULE OF EXHIBITS TO ASSUMPTION SUBMISSION
1. Financial statements of purchasing entity (audited, if available)
2. Bank and /or credit references for transferee
3. Credit report for principal(s) of the proposed borrowing entity.
4. Most recent Income & Expense Statement for property and operating statement
review
5. Most recent Property Inspection report
6. Purchase and Sale Agreement
7. If available from borrower, diagram of proposed ownership structure,
including percentages of ownership
8. Proposed property management agreement
9. Description and source of equity being used for the purchase, if available
10. Most recent Rent Roll.
11. Other items as required by the description set forth above
Appendix 2
<PAGE>
SCHEDULE I
JHREF LOAN SCHEDULE
S-I-1
<PAGE>
<TABLE>
<CAPTION>
LOAN CUT-OFF
NO. SELLER PROPERTY NAME DATE BALANCE
<S> <C> <C> <C>
22 JHREF Plaza Madison $29,706,627
26 JHREF Peddler's Village $12,495,090
28 JHREF DM Management $11,915,229
31 JHREF DCT Industrial Buildings $6,205,588
32 JHREF Noble International Industrial Building $5,286,241
33 JHREF Plaza Building A of the Vienna Technology Park $11,156,935
36 JHREF Parke Towne North Apts. $10,000,000
37 JHREF The Landings Apartments $10,000,000
40 JHREF Point Defiance Village $9,706,774
44 JHREF Casa Grande Apartments $7,952,836
52 JHREF 110 Leroy Street $6,742,154
60 JHREF 1275 Commerce Boulevard $5,979,612
63 JHREF Encino Garden Court $5,693,331
64 JHREF Meadow Creek Village Shopping Center $3,301,651
65 JHREF Woodlake Village Shopping Center $2,381,054
66 JHREF Renaissance Plaza $5,593,636
73 JHREF Merrill Ridge Plaza $4,994,135
74 JHREF Corporate Center II $2,228,665
75 JHREF Corporate Center III $2,669,524
78 JHREF Bayshore Village Apartments $4,472,544
80 JHREF Kings Hill Industrial Center $4,294,604
103 JHREF Festivals Office Park $3,272,217
111 JHREF Nypro Building $2,991,686
115 JHREF Jackson Street Mini Storage $2,597,745
126 JHREF Main Steel $1,523,859
$173,161,737
</TABLE>
<TABLE>
<CAPTION>
PREPAYMENT DESCRIPTION (*)
MORTGAGE MONTHLY NOTE ORIG. TERM REM. TERM AMORT. LOCK- YM
RATE PAYMENT DATE (MOS) (MOS) (MOS) SEASONING OUT DEF YM1 OPEN FORMULA
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
6.730% $194,181 08/28/98 180 169 360 11 72 104 4 D
8.350% $94,789 06/21/99 120 119 360 1 60 56 4 A
7.300% $95,209 03/01/99 120 116 240 4 41 75 4 N/A
8.620% $50,508 06/11/99 120 119 300 1 60 56 4 A
8.620% $43,025 06/11/99 120 119 300 1 60 56 4 A
8.040% $82,494 01/15/99 120 114 360 6 48 68 4 A
7.170% $60,580 03/25/99 120 116 360 4 60 56 4 A
6.850% $57,083 09/23/98 120 110 N/A 10 60 56 4 A
7.190% $70,097 03/29/99 120 116 300 4 48 68 4 A
7.150% $54,033 11/23/98 120 112 360 8 60 56 4 A
7.875% $48,942 05/27/99 120 118 360 2 60 56 4 A
7.180% $40,646 02/25/99 120 115 360 5 60 56 4 A
7.850% $41,230 05/10/99 120 118 360 2 60 56 4 A
7.480% $24,430 03/30/99 120 117 300 3 60 56 4 A
7.480% $17,618 03/30/99 120 117 300 3 60 56 4 A
7.960% $40,935 05/18/99 120 118 360 2 60 56 4 A
7.840% $36,132 05/27/99 120 118 360 2 60 56 4 A
8.500% $17,154 06/22/99 120 119 360 1 60 56 4 A
8.500% $20,523 06/22/99 120 119 360 1 60 56 4 A
7.000% $29,939 11/25/98 120 112 360 8 60 56 4 A
7.580% $30,302 05/11/99 120 118 360 2 60 56 4 A
7.900% $23,810 05/14/99 120 118 360 2 60 56 4 A
7.210% $20,384 03/22/99 120 116 360 4 60 56 4 A
7.810% $19,741 06/08/99 120 119 300 1 60 56 4 A
7.750% $13,329 11/25/98 120 112 216 8 60 56 4 A
</TABLE>
<TABLE>
<CAPTION>
CONSISTING OF:
MASTER EXCESS WELLS FARGO JHREF PRIMARY
ADM. COST SERVICING SERVICING EXCESS SERV. EXCESS SERV. SERVICING TRUSTEE
RATE FEE RATE (bps) FEE RATE (bps) FEE RATE (bps) FEE RATE (bps) FEE RATE (bps) FEE RATE (bps)
<S> <C> <C> <C> <C> <C> <C>
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
13.40 3.00 9.00 2.00 7.00 1.00 0.40
</TABLE>
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
Each of the following Mortgage Loans is structured with a performance holdback
or letter of credit ("LOC") subject to achievement of certain release
conditions. The amount of the holdback was escrowed, or the letter of credit was
established, for each Mortgage Loan at closing. Although Mortgage Loan Nos. 69,
Haywood Plaza Shopping Center, 76, CCL Industries, and 90, 15800 NW 13th Ave, do
not have defined Outside Dates for Release, their loan balances may be prepaid
if the associated LOCs are not replaced per LOC Agreement terms, or upon an
event of default. Although all Mortgage Loans prohibit voluntary partial
prepayment, the following Mortgage Loans may require partial prepayments as
described.
<TABLE>
<CAPTION>
Mortgage
Loan No. Property Name Release Conditions
- -------- ------------- ------------------
<S> <C> <C>
24 609 Greenwich 1) Base rents increase for current tenant, Gun for Hire, per lease conditions.
2) Tenant delivers to Lender an estoppel certificate indicating that the Lease
is in full force and effect, and there are no defaults under the Mortgage
Loan.
25 The Office Center at Ramsey 1) Borrower has completed and performed or paid for all Tenant Improvements
("TIs") and Leasing Commissions ("LCs") associated with the JDR space.
1) Base rents increase for current tenant, UPS, per lease conditions.
30 Plymouth Plus Property 1) Immediate Repairs are performed per agreement.
34 Bloomington Distribution Center 1) Environmental Remediation is performed per agreement.
& StationStore
48 Monticello Village 1) Immediate Repairs are performed per agreement.
49 Monticello Townhouses 1) Immediate Repairs are performed per agreement.
50 Logan Way 1) Immediate Repairs are performed per agreement.
51 Essex House 1) Immediate Repairs are performed per agreement.
53 Holiday Companies Headquarters 1) Immediate Repairs are performed per agreement.
54 2495 Boulevard of the Generals
61 1233-1259 Reamwood Ave. 1) Seismic Upgrading is performed per agreement.
64-65 Meadow Creek Village Shopping Center 1) Borrower to provide evidence that Blockbuster has accepted leased premises
and Woodlake Village Shopping Center and is paying rent.
2) Lender has received estoppel certificate.
3) Lender's fees and expenses are reimbursed.
68 Diamondback Building 1) Single tenant, Derby Cycle Corp., commences paying full rent.
69 Haywood Plaza Shopping Center 1) Borrower has completed and performed or paid all TIs and LCs associated with
the largest tenant space, TJX.
</TABLE>
<TABLE>
<CAPTION>
Escrowed Holdback or
Letter of Credit Outside Date Prepayment
Amount for Release Premium Provisions
------ ----------- ------------------
<S> <C> <C>
$3,100,000 03/27/00 Yield Maintenance
$270,000 10/31/03 Yield Maintenance
$235,000 10/31/99 Yield Maintenance
$16,875 12/10/99 Yield Maintenance
$12,500 12/10/99 Yield Maintenance
$34,797 06/01/00 Yield Maintenance
$17,693 06/01/00 Yield Maintenance
$8,847 06/01/00 Yield Maintenance
$3,539 06/01/00 Yield Maintenance
$49,875 12/10/99 Yield Maintenance
$19,375 01/01/00 Yield Maintenance
$170,000 02/01/00 Yield Maintenance
$100,000 09/30/99 Yield Maintenance
$177,000 08/15/99 Yield Maintenance
$150,000 N/A Yield Maintenance
</TABLE>
II-16
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Mortgage
Loan No. Property Name Release Conditions
- -------- ------------- ------------------
<S> <C> <C>
2) Lender has received architect certificate, fully
executed lease(s), and lessee's estoppel certificate(s).
1) Borrower has completed and performed the Ongoing
Repairs and has paid all associated costs.
2) Lender approves of all such repairs.
71 Belz Factory Outlet Mall 1) Immediate Repairs are performed per agreement.
72 200 Forest Drive 1) Environmental Remediation is performed per agreement.
2) Immediate Repairs are performed per agreement.
76 CCL Industries 1) Lender has received lessee's estoppel certificate(s).
and confirmation that specified work was completed, and
lessee has given unconditional acceptance of the improvements.
79 Highland Ridge Apartments 1) Immediate Repairs are performed per agreement.
90 15800 NW 13th Ave 1) Borrower has completed and performed or paid for
Capital Expenses and TI/LCs that occur throughout the term
of the Mortgage Loan per agreements.
92 Eastgate Village Shopping Center 1) Borrower has completed and performed or paid for
all TIs associated with the build-out of a vacant space to
a vanilla box condition.
93 Normandy Manor Apartments 1) Immediate Repairs are performed per agreement.
94 Highland Creste Apartments 1) Immediate Repairs are performed per agreement.
95 2325 Maryland Road 1) Immediate Repairs are performed per agreement.
101 Riverview Village Shopping Center 1) Immediate Repairs are performed per agreement.
102 American Plaza Shopping Center 1) Immediate Repairs are performed per agreement.
107 4296 Albany Street 1) Immediate Repairs are performed per agreement.
110 910 Orlando Avenue 1) Immediate Repairs are performed per agreement.
112 The Weston Road Shoppes 1) Lady Fitness Center takes occupancy and commences
paying rent per the executed lease.
113 Central Jersey Office and 1) Immediate Repairs are performed per agreement.
Industrial Park
124 Pembrooke Medical Office 1) Immediate Repairs are performed per agreement.
</TABLE>
All yield maintenance premiums indicated above are to be paid by the Borrower.
<TABLE>
<CAPTION>
Escrowed Holdback or
Letter of Credit Outside Date Prepayment
Amount for Release Premium Provisions
-------- ------------ -------------------
<S> <C> <C>
$75,000 N/A Yield Maintenance
$17,600 01/01/00 Yield Maintenance
$25,000 05/01/99 Yield Maintenance
$100,000 12/31/01 Yield Maintenance
$48,750 N/A Yield Maintenance
$26,500 11/01/99 Yield Maintenance
$150,000 N/A Yield Maintenance
$22,500 12/01/99 Yield Maintenance
$27,438 11/01/99 Yield Maintenance
$55,780 11/01/99 Yield Maintenance
$17,750 01/01/00 Yield Maintenance
$108,000 06/01/00 Yield Maintenance
$13,750 01/01/00 Yield Maintenance
$58,375 03/30/00 Yield Maintenance
$51,813 05/01/00 Yield Maintenance
$461,500 09/02/99 Yield Maintenance
$18,600 05/01/01 Yield Maintenance
$9,375 12/31/99 Yield Maintenance
</TABLE>
All yield maintenance premiums indicated above are to be paid by the Borrower.
II-17
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
The "Prepayment Code" includes the number of loan payments from the first Due
Date (after the initial partial month interest only payment date, if any) to the
stated maturity. "DEF" represents defeasance. "YM1" represents the greater of
yield maintenance and 1%. "Open" represents the number of payments, including
the maturity date, at which principal prepayments are permitted without payment
of a prepayment premium. For each Mortgage Loan, the number set forth under a
category of "Prepayment Code" represents the number of payments in the Original
Term to Maturity for which such provision applies.
II-18
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
Mortgage Loans with associated Yield Maintenance Prepayment Premiums are
categorized according to unique Yield Maintenance formulas. There are four
different Yield Maintenance formulas represented by the loans in the subject
Mortgage Loan pool. The different formulas are reference by the letters "A",
"B", "C" and "D". Summaries for the four formulas are listed below:
YIELD MAINTENANCE FORMULAS
The following are summaries of yield maintenance provision, or formulas,
contained in the related promissory note for certain of the mortgage loans.
There are four unique yield maintenance formulas represented by the mortgage
loans, each labeled as "A", "B", "C" or "D". Each Mortgage Loan, which provides
for a yield maintenance formula, references the applicable formula printed
below in the column titled "YM Formula".
A On or after the end of the applicable Loan Year (as hereinafter
defined), on any scheduled payment date and subject to giving Payee not less
than thirty (30) not more than ninety (90) days' prior written notice specifying
the scheduled payment date on which prepayment is to be made (the "Prepayment
Date"). Maker may prepay the entire principal amount together with any and all
accrued interest and other sums due under the Loan Documents, and subject to
payment of a prepayment premium equal to the greater of:
(a) the positive amount, if any, equal to (i) the sum of the
present values of all scheduled payments due under the Note
from the Prepayment Date to and including the Maturity Date,
minus (ii) the principal balance of the Note immediately prior
to such prepayment; or
(b) one percent (1.00%) of the principal balance of the Note
immediately prior to such prepayment.
All present values shall be calculated as of the Prepayment Date, using
a discount rate, compounded monthly, equal to the yield rate, converted to its
monthly equivalent of the United States Treasury Security having the closest
maturity date to the Maturity Date of the Note as established in the Wall Street
Journal or other business publication of general circulation five (5) business
days before the Prepayment Date.
In the event that the yield rate on publicly traded United States
Treasury Securities is not obtainable, then the nearest equivalent issue or
index shall be selected, at Payee's reasonable determination, and used to
calculate the prepayment premium.
The loan will be open to prepayment without premium during the last
ninety (90) days of the term of the loan. If any notice of prepayment is given,
the principal balance of the loan and the other sums required pursuant to this
Section 2 shall be due and payable on the Prepayment Date, unless Maker provides
written notice to Payee that it is revoking said prepayment notice no later than
five (5) business days prior to the Prepayment Date.
- --------------------------------------------------------------------------------
Provided no default exists under the Loan Documents, the above premium
shall not be applicable to a prepayment resulting from Payee's election to
require insurance loss proceeds or condemnation awards to be applied to a
payment of principal.
- --------------------------------------------------------------------------------
No partial prepayment shall be allowed.
The Loan Year is defined as any twelve month period commencing with the
date on which the first monthly installment is due or any anniversary thereof.
- --------------------------------------------------------------------------------
NOTE: For Mortgage Loan No. 30, Kings Hill Industrial Center, the paragraph
highlighted above should be substituted by the following language:
The above premium shall not be applicable to a prepayment resulting
from Payee's election to require insurance loss proceeds or condemnation awards
to be applied to a payment of principal.
- --------------------------------------------------------------------------------
B Loan Prepayment. Borrower may not prepay any principal of the Note
prior to the Maturity Date, except that after the Lockout Date, Borrower may
prepay the Loan, upon thirty (30) days' prior written notice to the Lender, in
full, but not paid, except as allowed pursuant to paragraph 42 of the Mortgage,
by paying all principal and interest to the date of prepayment, along with all
other Indebtedness then due, and (subject to the provisions in the Mortgage
regarding the disposition of casualty and condemnation proceeds) upon the
payment of a "Make Whole Premium." The Make Whole Premium shall be the greater
of one percent (1%) of the principal amount to be prepaid or a premium
calculated as provided in subparagraphs (i) and (iv) below:
II-19
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
(i) Determine the "Reinvestment Yield." The Reinvestment Yield
will be equal to the yield on the U.S. Treasury Issue
("Primary Issue") published one week prior to the date of
prepayment and converted to an equivalent monthly compounded
nominal yield.
* At this time there is not a U.S. Treasury Issue for this prepayment period. At
the time of prepayment, Lender shall select on its sole and absolute discretion
a U.S. Treasury Issue with similar remaining time to maturity as the Note.
(ii) Calculate the "Present Value of the Loan." The Present Value
of the Loan is the present value of the payments to be made in
accordance with the Note (all installment payments and any
remaining payment due on the Maturity Date) discounted at the
Reinvestment Yield for the number of months remaining from the
date of prepayment to the Maturity Date.
(iii) Subtract the amount of the prepaid proceeds from the Present
Value of the Loan as of the date of prepayment. Any resulting
positive differential shall be the premium.
(iv) In the event the Loan is prepaid on or after that date which
is three (3) months prior to the Maturity Date, no Make Whole
Premium shall be due.
C Loan Prepayment. Borrower may not prepay any principal of the Note
prior to the Maturity Date, except that after the Lockout Date, Borrower may
prepay the Loan, upon thirty (30) days' prior written notice to the Lender, in
full, but not in part, by paying all principal and interest to the date of
prepayment, along with all other Indebtedness then due, and (subject to the
provisions in the Mortgage regarding the disposition of casualty and
condemnation proceeds) upon the payment of a "Make Whole Premium." The Make
Whole Premium shall be the greater of one percent (1%) of the principal amount
to be prepaid or a premium calculated as provided in subparagraphs (i) and (iii)
below:
(i) Determine the "Reinvestment Yield." The Reinvestment Yield
will be equal to the yield on the * U.S. Treasury Issue
("Primary Issue") published one week prior to the date of
prepayment and converted to an equivalent monthly compounded
nominal yield. In the event there is no market activity
involving the Primary Issue at the time of prepayment, the
Lender shall choose a comparable Treasury Bond, Note or Bill
("Secondary Issue") which the Lender reasonably deems to be
similar to the Primary Issue's characteristics (i.e., rate,
remaining time to maturity, yield).
* At this time there is not a U.S. Treasury Issue for this prepayment
period. At the time of prepayment, Lender shall select a U.S. Treasury
Issue with similar remaining time to maturity as the Note.
(ii) Calculate the "Present Value of the Loan." The Present Value
of the Loan is the present value of the payments to be made in
accordance with the Note (all installment payments and any
remaining payment due on the Maturity Date) discounted at the
Reinvestment Yield for the number of months remaining from the
date of prepayment to the Maturity Date.
(iii) Subtract the amount of the prepaid Indebtedness from the
Present Value of the Loan as of the date of prepayment. Any
resulting positive differential shall be the premium.
(iv) In the event the Loan is prepaid on or after that date which
is three (3) months prior to the Maturity Date, no Make Whole
Premium shall be due.
(v) In the event an Event of Default and acceleration occur, the
Make Whole Premium shall be due and payable.
D (A) On any Installment Payment Date on or after October 1, 2004, upon
not less than 30 nor more than 90 days' prior written notice to the Payee, the
Maker may, at its option, prepay the entire (but not less than the entire)
aggregate principal amount of this Note, at the principal amount so prepaid,
together with unpaid interest on the Note accrued to the date fixed for such
prepayment, plus a premium, unless all or any part of the principal of the Note
has become due and payable by declaration or acceleration following an Event of
Default in which event the premium shall be as provided in subsection (B), equal
to the greater of:
(i) 1% of the then outstanding principal balance of the Note or
II-20
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
(ii) the sum obtained by multiplying the then outstanding principal
balance of the Note by (x) the difference obtained by
subtracting the yield rate on publicly traded United States
Treasury Securities having the closest matching maturity date
to the maturity date of the Note as such yield rate is
reported in the Wall Street Journal or other similar business
publication of general circulation on the fifth business day
preceding the prepayment date or, if no yield rate on publicly
traded United States Treasury Securities is obtainable, at the
yield rate of the issue most closely equivalent to such United
States Treasury Securities, as determined by Payee in its
reasonable discretion, from 6.825% and (y) the number of years
and fraction thereof remaining between the prepayment date and
the scheduled maturity date of the Note.
In addition, during the final 90 days before maturity of the Note, upon
not less than 30 days' prior written notice, Maker may prepay the entire (but
not less than the entire) aggregate principal amount of the Note at the time
outstanding, at the principal amount so prepaid, together with unpaid interest
on the Note accrued to the date fixed for such prepayment and together with
other sums due under this Mortgage and all other documents evidencing or
securing the Note or otherwise pertaining thereto, without premium, unless Payee
has accelerated following an Event of Default as provided below.
The entire unpaid and outstanding aggregate principal amount of the
Note shall mature and become due and payable on the date fixed for prepayment,
together with the applicable premium and interest accrued and unpaid on such
date and together with such other sums due under the Mortgage and all other
documents evidencing or securing the Note or otherwise pertaining thereto.
(B) Except as specifically set forth in this Note and in Section 1.3 of
the Mortgage, this Note may not be prepaid in whole or in part. If, pursuant to
any provision of the Mortgage or otherwise, any principal of this Note shall
become due and payable by declaration of the Payee or acceleration by the Payee
following the occurrence of an Event of Default, the Payee shall be entitled to
receive a premium equal to the greater of:
(i) 10% of the then outstanding principal balance of the Note or
(ii) the sum obtained by multiplying the then outstanding principal
balance of the Note by (x) the difference obtained by
subtracting the yield rate on publicly traded United States
Treasury Securities having the closest matching maturity date
to the maturity date of the Note as such yield rate is
reported in the Wall Street Journal or other similar business
publication of general circulation on the fifth business day
preceding the prepayment date or, if no yield rate on publicly
traded United States Treasury Securities is obtainable, at the
yield rate of the issue most closely equivalent to such United
States Treasury Securities, as determined by Payee in its
reasonable discretion from 6.825% and (y) the number of years
and fraction thereof remaining between the prepayment date and
the scheduled maturity date of the Note.
If such Event of Default occurs on or after the date specified in the
first sentence of subsection (A) above, then in lieu of the premium specified in
this subsection (B), payment of a premium calculated in the manner set forth in
such subsection (A) shall be required.
<PAGE>
SCHEDULE II
MSMC LOAN SCHEDULE
S-II-1
<PAGE>
<TABLE>
<CAPTION>
LOAN CUT-OFF MORTGAGE MONTHLY NOTE ORIG. TERM REM. TERM AMORT.
NO. SELLER PROPERTY NAME DATE BALANCE RATE PAYMENT DATE (MOS) (MOS) (MOS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 MSMC Heritage Park $8,048,394 6.800% $45,608 6/21/99 120 119 N/A
2 MSMC Oakwood Square $7,297,001 6.800% $41,350 6/21/99 120 119 N/A
3 MSMC Towne Crossings $6,548,222 6.800% $37,107 6/21/99 120 119 N/A
4 MSMC Crofton Station $5,642,731 6.800% $31,975 6/21/99 120 119 N/A
5 MSMC Village Court $3,206,994 6.800% $18,173 6/21/99 120 119 N/A
6 MSMC The Marketplace at Ocala $3,114,231 6.800% $17,647 6/21/99 120 119 N/A
7 MSMC University Center $1,852,724 6.800% $10,499 6/21/99 120 119 N/A
8 MSMC Litchfield Landing $1,837,686 6.800% $10,414 6/21/99 120 119 N/A
9 MSMC Robbins Towne Centre $1,692,218 6.800% $9,589 6/21/99 120 119 N/A
10 MSMC First Street Station $1,641,797 6.800% $9,304 6/21/99 120 119 N/A
11 MSMC Taylorsville $1,461,664 6.800% $8,283 6/21/99 120 119 N/A
12 MSMC Lake Montclair Centre $6,914,560 6.800% $39,183 6/21/99 120 119 N/A
13 MSMC Centre at Riverchase $5,410,901 6.800% $30,662 6/21/99 120 119 N/A
14 MSMC The Corridors at Ponte Vedra $5,326,925 6.800% $30,186 6/21/99 120 119 N/A
15 MSMC Shannon Crossing $5,300,598 6.800% $30,037 6/21/99 120 119 N/A
16 MSMC Mandarin Oaks $4,836,743 6.800% $27,408 6/21/99 120 119 N/A
17 MSMC Seven Hills Plaza $4,191,277 6.800% $23,751 6/21/99 120 119 N/A
18 MSMC Barclay Square $2,942,718 6.800% $16,675 6/21/99 120 119 N/A
19 MSMC Shoppes at Cloverplace $2,631,822 6.800% $14,914 6/21/99 120 119 N/A
20 MSMC Hillview Plaza $1,676,710 6.800% $9,501 6/21/99 120 119 N/A
21 MSMC River Bend $1,606,232 6.800% $9,102 6/21/99 120 119 N/A
$83,182,148
</TABLE>
<TABLE>
<CAPTION>
PREPAYMENT DESCRIPTION (*) MASTER EXCESS
LOAN LOCK- YM ADM. COST SERVICING SERVICING
NO. SELLER PROPERTY NAME SEASONING OUT DEF YM1 OPEN FORMULA RATE FEE RATE (BPS) FEE RATE (BPS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 MSMC Heritage Park 1 25 92 3 N/A 9.40 3.00 5.00
2 MSMC Oakwood Square 1 25 92 3 N/A 9.40 3.00 5.00
3 MSMC Towne Crossings 1 25 92 3 N/A 9.40 3.00 5.00
4 MSMC Crofton Station 1 25 92 3 N/A 9.40 3.00 5.00
5 MSMC Village Court 1 25 92 3 N/A 9.40 3.00 5.00
6 MSMC The Marketplace at Ocala 1 25 92 3 N/A 9.40 3.00 5.00
7 MSMC University Center 1 25 92 3 N/A 9.40 3.00 5.00
8 MSMC Litchfield Landing 1 25 92 3 N/A 9.40 3.00 5.00
9 MSMC Robbins Towne Centre 1 25 92 3 N/A 9.40 3.00 5.00
10 MSMC First Street Station 1 25 92 3 N/A 9.40 3.00 5.00
11 MSMC Taylorsville 1 25 92 3 N/A 9.40 3.00 5.00
12 MSMC Lake Montclair Centre 1 25 92 3 N/A 9.40 3.00 5.00
13 MSMC Centre at Riverchase 1 25 92 3 N/A 9.40 3.00 5.00
14 MSMC The Corridors at Ponte Vedra 1 25 92 3 N/A 9.40 3.00 5.00
15 MSMC Shannon Crossing 1 25 92 3 N/A 9.40 3.00 5.00
16 MSMC Mandarin Oaks 1 25 92 3 N/A 9.40 3.00 5.00
17 MSMC Seven Hills Plaza 1 25 92 3 N/A 9.40 3.00 5.00
18 MSMC Barclay Square 1 25 92 3 N/A 9.40 3.00 5.00
19 MSMC Shoppes at Cloverplace 1 25 92 3 N/A 9.40 3.00 5.00
20 MSMC Hillview Plaza 1 25 92 3 N/A 9.40 3.00 5.00
21 MSMC River Bend 1 25 92 3 N/A 9.40 3.00 5.00
</TABLE>
<TABLE>
<CAPTION>
CONSISTING OF:
WELLS FARGO JHREF PRIMARY
LOAN EXCESS SERV. EXCESS SERV. SERVICING TRUSTEE
NO. SELLER PROPERTY NAME FEE RATE (BPS) FEE RATE (BPS) FEE RATE (BPS) FEE RATE (BPS)
<S> <C> <C> <C> <C> <C> <C>
1 MSMC Heritage Park 5.00 0.00 1.00 0.40
2 MSMC Oakwood Square 5.00 0.00 1.00 0.40
3 MSMC Towne Crossings 5.00 0.00 1.00 0.40
4 MSMC Crofton Station 5.00 0.00 1.00 0.40
5 MSMC Village Court 5.00 0.00 1.00 0.40
6 MSMC The Marketplace at Ocala 5.00 0.00 1.00 0.40
7 MSMC University Center 5.00 0.00 1.00 0.40
8 MSMC Litchfield Landing 5.00 0.00 1.00 0.40
9 MSMC Robbins Towne Centre 5.00 0.00 1.00 0.40
10 MSMC First Street Station 5.00 0.00 1.00 0.40
11 MSMC Taylorsville 5.00 0.00 1.00 0.40
12 MSMC Lake Montclair Centre 5.00 0.00 1.00 0.40
13 MSMC Centre at Riverchase 5.00 0.00 1.00 0.40
14 MSMC The Corridors at Ponte Vedra 5.00 0.00 1.00 0.40
15 MSMC Shannon Crossing 5.00 0.00 1.00 0.40
16 MSMC Mandarin Oaks 5.00 0.00 1.00 0.40
17 MSMC Seven Hills Plaza 5.00 0.00 1.00 0.40
18 MSMC Barclay Square 5.00 0.00 1.00 0.40
19 MSMC Shoppes at Cloverplace 5.00 0.00 1.00 0.40
20 MSMC Hillview Plaza 5.00 0.00 1.00 0.40
21 MSMC River Bend 5.00 0.00 1.00 0.40
</TABLE>
II-1
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
Each of the following Mortgage Loans is structured with a performance holdback
or letter of credit ("LOC") subject to achievement of certain release
conditions. The amount of the holdback was escrowed, or the letter of credit was
established, for each Mortgage Loan at closing. Although Mortgage Loan Nos. 69,
Haywood Plaza Shopping Center, 76, CCL Industries, and 90, 15800 NW 13th Ave, do
not have defined Outside Dates for Release, their loan balances may be prepaid
if the associated LOCs are not replaced per LOC Agreement terms, or upon an
event of default. Although all Mortgage Loans prohibit voluntary partial
prepayment, the following Mortgage Loans may require partial prepayments as
described.
<TABLE>
<CAPTION>
Mortgage
Loan No. Property Name Release Conditions
- -------- ------------- ------------------
<S> <C> <C>
24 609 Greenwich 1) Base rents increase for current tenant, Gun for Hire, per lease conditions.
2) Tenant delivers to Lender an estoppel certificate indicating that the Lease
is in full force and effect, and there are no defaults under the Mortgage
Loan.
25 The Office Center at Ramsey 1) Borrower has completed and performed or paid for all Tenant Improvements
("TIs") and Leasing Commissions ("LCs") associated with the JDR space.
1) Base rents increase for current tenant, UPS, per lease conditions.
30 Plymouth Plus Property 1) Immediate Repairs are performed per agreement.
34 Bloomington Distribution Center 1) Environmental Remediation is performed per agreement.
& StationStore
48 Monticello Village 1) Immediate Repairs are performed per agreement.
49 Monticello Townhouses 1) Immediate Repairs are performed per agreement.
50 Logan Way 1) Immediate Repairs are performed per agreement.
51 Essex House 1) Immediate Repairs are performed per agreement.
53 Holiday Companies Headquarters 1) Immediate Repairs are performed per agreement.
54 2495 Boulevard of the Generals
61 1233-1259 Reamwood Ave. 1) Seismic Upgrading is performed per agreement.
64-65 Meadow Creek Village Shopping Center 1) Borrower to provide evidence that Blockbuster has accepted leased premises
and Woodlake Village Shopping Center and is paying rent.
2) Lender has received estoppel certificate.
3) Lender's fees and expenses are reimbursed.
68 Diamondback Building 1) Single tenant, Derby Cycle Corp., commences paying full rent.
69 Haywood Plaza Shopping Center 1) Borrower has completed and performed or paid all TIs and LCs associated with
the largest tenant space, TJX.
</TABLE>
<TABLE>
<CAPTION>
Escrowed Holdback or
Letter of Credit Outside Date Prepayment
Amount for Release Premium Provisions
------ ----------- ------------------
<S> <C> <C>
$3,100,000 03/27/00 Yield Maintenance
$270,000 10/31/03 Yield Maintenance
$235,000 10/31/99 Yield Maintenance
$16,875 12/10/99 Yield Maintenance
$12,500 12/10/99 Yield Maintenance
$34,797 06/01/00 Yield Maintenance
$17,693 06/01/00 Yield Maintenance
$8,847 06/01/00 Yield Maintenance
$3,539 06/01/00 Yield Maintenance
$49,875 12/10/99 Yield Maintenance
$19,375 01/01/00 Yield Maintenance
$170,000 02/01/00 Yield Maintenance
$100,000 09/30/99 Yield Maintenance
$177,000 08/15/99 Yield Maintenance
$150,000 N/A Yield Maintenance
</TABLE>
II-16
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Mortgage
Loan No. Property Name Release Conditions
- -------- ------------- ------------------
<S> <C> <C>
2) Lender has received architect certificate, fully
executed lease(s), and lessee's estoppel certificate(s).
1) Borrower has completed and performed the Ongoing
Repairs and has paid all associated costs.
2) Lender approves of all such repairs.
71 Belz Factory Outlet Mall 1) Immediate Repairs are performed per agreement.
72 200 Forest Drive 1) Environmental Remediation is performed per agreement.
2) Immediate Repairs are performed per agreement.
76 CCL Industries 1) Lender has received lessee's estoppel certificate(s).
and confirmation that specified work was completed, and
lessee has given unconditional acceptance of the improvements.
79 Highland Ridge Apartments 1) Immediate Repairs are performed per agreement.
90 15800 NW 13th Ave 1) Borrower has completed and performed or paid for
Capital Expenses and TI/LCs that occur throughout the term
of the Mortgage Loan per agreements.
92 Eastgate Village Shopping Center 1) Borrower has completed and performed or paid for
all TIs associated with the build-out of a vacant space to
a vanilla box condition.
93 Normandy Manor Apartments 1) Immediate Repairs are performed per agreement.
94 Highland Creste Apartments 1) Immediate Repairs are performed per agreement.
95 2325 Maryland Road 1) Immediate Repairs are performed per agreement.
101 Riverview Village Shopping Center 1) Immediate Repairs are performed per agreement.
102 American Plaza Shopping Center 1) Immediate Repairs are performed per agreement.
107 4296 Albany Street 1) Immediate Repairs are performed per agreement.
110 910 Orlando Avenue 1) Immediate Repairs are performed per agreement.
112 The Weston Road Shoppes 1) Lady Fitness Center takes occupancy and commences
paying rent per the executed lease.
113 Central Jersey Office and 1) Immediate Repairs are performed per agreement.
Industrial Park
124 Pembrooke Medical Office 1) Immediate Repairs are performed per agreement.
</TABLE>
All yield maintenance premiums indicated above are to be paid by the Borrower.
<TABLE>
<CAPTION>
Escrowed Holdback or
Letter of Credit Outside Date Prepayment
Amount for Release Premium Provisions
-------- ------------ -------------------
<S> <C> <C>
$75,000 N/A Yield Maintenance
$17,600 01/01/00 Yield Maintenance
$25,000 05/01/99 Yield Maintenance
$100,000 12/31/01 Yield Maintenance
$48,750 N/A Yield Maintenance
$26,500 11/01/99 Yield Maintenance
$150,000 N/A Yield Maintenance
$22,500 12/01/99 Yield Maintenance
$27,438 11/01/99 Yield Maintenance
$55,780 11/01/99 Yield Maintenance
$17,750 01/01/00 Yield Maintenance
$108,000 06/01/00 Yield Maintenance
$13,750 01/01/00 Yield Maintenance
$58,375 03/30/00 Yield Maintenance
$51,813 05/01/00 Yield Maintenance
$461,500 09/02/99 Yield Maintenance
$18,600 05/01/01 Yield Maintenance
$9,375 12/31/99 Yield Maintenance
</TABLE>
All yield maintenance premiums indicated above are to be paid by the Borrower.
II-17
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
The "Prepayment Code" includes the number of loan payments from the first Due
Date (after the initial partial month interest only payment date, if any) to the
stated maturity. "DEF" represents defeasance. "YM1" represents the greater of
yield maintenance and 1%. "Open" represents the number of payments, including
the maturity date, at which principal prepayments are permitted without payment
of a prepayment premium. For each Mortgage Loan, the number set forth under a
category of "Prepayment Code" represents the number of payments in the Original
Term to Maturity for which such provision applies.
II-18
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
Mortgage Loans with associated Yield Maintenance Prepayment Premiums are
categorized according to unique Yield Maintenance formulas. There are four
different Yield Maintenance formulas represented by the loans in the subject
Mortgage Loan pool. The different formulas are reference by the letters "A",
"B", "C" and "D". Summaries for the four formulas are listed below:
YIELD MAINTENANCE FORMULAS
The following are summaries of yield maintenance provision, or formulas,
contained in the related promissory note for certain of the mortgage loans.
There are four unique yield maintenance formulas represented by the mortgage
loans, each labeled as "A", "B", "C" or "D". Each Mortgage Loan, which provides
for a yield maintenance formula, references the applicable formula printed
below in the column titled "YM Formula".
A On or after the end of the applicable Loan Year (as hereinafter
defined), on any scheduled payment date and subject to giving Payee not less
than thirty (30) not more than ninety (90) days' prior written notice specifying
the scheduled payment date on which prepayment is to be made (the "Prepayment
Date"). Maker may prepay the entire principal amount together with any and all
accrued interest and other sums due under the Loan Documents, and subject to
payment of a prepayment premium equal to the greater of:
(a) the positive amount, if any, equal to (i) the sum of the
present values of all scheduled payments due under the Note
from the Prepayment Date to and including the Maturity Date,
minus (ii) the principal balance of the Note immediately prior
to such prepayment; or
(b) one percent (1.00%) of the principal balance of the Note
immediately prior to such prepayment.
All present values shall be calculated as of the Prepayment Date, using
a discount rate, compounded monthly, equal to the yield rate, converted to its
monthly equivalent of the United States Treasury Security having the closest
maturity date to the Maturity Date of the Note as established in the Wall Street
Journal or other business publication of general circulation five (5) business
days before the Prepayment Date.
In the event that the yield rate on publicly traded United States
Treasury Securities is not obtainable, then the nearest equivalent issue or
index shall be selected, at Payee's reasonable determination, and used to
calculate the prepayment premium.
The loan will be open to prepayment without premium during the last
ninety (90) days of the term of the loan. If any notice of prepayment is given,
the principal balance of the loan and the other sums required pursuant to this
Section 2 shall be due and payable on the Prepayment Date, unless Maker provides
written notice to Payee that it is revoking said prepayment notice no later than
five (5) business days prior to the Prepayment Date.
- --------------------------------------------------------------------------------
Provided no default exists under the Loan Documents, the above premium
shall not be applicable to a prepayment resulting from Payee's election to
require insurance loss proceeds or condemnation awards to be applied to a
payment of principal.
- --------------------------------------------------------------------------------
No partial prepayment shall be allowed.
The Loan Year is defined as any twelve month period commencing with the
date on which the first monthly installment is due or any anniversary thereof.
- --------------------------------------------------------------------------------
NOTE: For Mortgage Loan No. 30, Kings Hill Industrial Center, the paragraph
highlighted above should be substituted by the following language:
The above premium shall not be applicable to a prepayment resulting
from Payee's election to require insurance loss proceeds or condemnation awards
to be applied to a payment of principal.
- --------------------------------------------------------------------------------
B Loan Prepayment. Borrower may not prepay any principal of the Note
prior to the Maturity Date, except that after the Lockout Date, Borrower may
prepay the Loan, upon thirty (30) days' prior written notice to the Lender, in
full, but not paid, except as allowed pursuant to paragraph 42 of the Mortgage,
by paying all principal and interest to the date of prepayment, along with all
other Indebtedness then due, and (subject to the provisions in the Mortgage
regarding the disposition of casualty and condemnation proceeds) upon the
payment of a "Make Whole Premium." The Make Whole Premium shall be the greater
of one percent (1%) of the principal amount to be prepaid or a premium
calculated as provided in subparagraphs (i) and (iv) below:
II-19
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
(i) Determine the "Reinvestment Yield." The Reinvestment Yield
will be equal to the yield on the U.S. Treasury Issue
("Primary Issue") published one week prior to the date of
prepayment and converted to an equivalent monthly compounded
nominal yield.
* At this time there is not a U.S. Treasury Issue for this prepayment period. At
the time of prepayment, Lender shall select on its sole and absolute discretion
a U.S. Treasury Issue with similar remaining time to maturity as the Note.
(ii) Calculate the "Present Value of the Loan." The Present Value
of the Loan is the present value of the payments to be made in
accordance with the Note (all installment payments and any
remaining payment due on the Maturity Date) discounted at the
Reinvestment Yield for the number of months remaining from the
date of prepayment to the Maturity Date.
(iii) Subtract the amount of the prepaid proceeds from the Present
Value of the Loan as of the date of prepayment. Any resulting
positive differential shall be the premium.
(iv) In the event the Loan is prepaid on or after that date which
is three (3) months prior to the Maturity Date, no Make Whole
Premium shall be due.
C Loan Prepayment. Borrower may not prepay any principal of the Note
prior to the Maturity Date, except that after the Lockout Date, Borrower may
prepay the Loan, upon thirty (30) days' prior written notice to the Lender, in
full, but not in part, by paying all principal and interest to the date of
prepayment, along with all other Indebtedness then due, and (subject to the
provisions in the Mortgage regarding the disposition of casualty and
condemnation proceeds) upon the payment of a "Make Whole Premium." The Make
Whole Premium shall be the greater of one percent (1%) of the principal amount
to be prepaid or a premium calculated as provided in subparagraphs (i) and (iii)
below:
(i) Determine the "Reinvestment Yield." The Reinvestment Yield
will be equal to the yield on the * U.S. Treasury Issue
("Primary Issue") published one week prior to the date of
prepayment and converted to an equivalent monthly compounded
nominal yield. In the event there is no market activity
involving the Primary Issue at the time of prepayment, the
Lender shall choose a comparable Treasury Bond, Note or Bill
("Secondary Issue") which the Lender reasonably deems to be
similar to the Primary Issue's characteristics (i.e., rate,
remaining time to maturity, yield).
* At this time there is not a U.S. Treasury Issue for this prepayment
period. At the time of prepayment, Lender shall select a U.S. Treasury
Issue with similar remaining time to maturity as the Note.
(ii) Calculate the "Present Value of the Loan." The Present Value
of the Loan is the present value of the payments to be made in
accordance with the Note (all installment payments and any
remaining payment due on the Maturity Date) discounted at the
Reinvestment Yield for the number of months remaining from the
date of prepayment to the Maturity Date.
(iii) Subtract the amount of the prepaid Indebtedness from the
Present Value of the Loan as of the date of prepayment. Any
resulting positive differential shall be the premium.
(iv) In the event the Loan is prepaid on or after that date which
is three (3) months prior to the Maturity Date, no Make Whole
Premium shall be due.
(v) In the event an Event of Default and acceleration occur, the
Make Whole Premium shall be due and payable.
D (A) On any Installment Payment Date on or after October 1, 2004, upon
not less than 30 nor more than 90 days' prior written notice to the Payee, the
Maker may, at its option, prepay the entire (but not less than the entire)
aggregate principal amount of this Note, at the principal amount so prepaid,
together with unpaid interest on the Note accrued to the date fixed for such
prepayment, plus a premium, unless all or any part of the principal of the Note
has become due and payable by declaration or acceleration following an Event of
Default in which event the premium shall be as provided in subsection (B), equal
to the greater of:
(i) 1% of the then outstanding principal balance of the Note or
II-20
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
(ii) the sum obtained by multiplying the then outstanding principal
balance of the Note by (x) the difference obtained by
subtracting the yield rate on publicly traded United States
Treasury Securities having the closest matching maturity date
to the maturity date of the Note as such yield rate is
reported in the Wall Street Journal or other similar business
publication of general circulation on the fifth business day
preceding the prepayment date or, if no yield rate on publicly
traded United States Treasury Securities is obtainable, at the
yield rate of the issue most closely equivalent to such United
States Treasury Securities, as determined by Payee in its
reasonable discretion, from 6.825% and (y) the number of years
and fraction thereof remaining between the prepayment date and
the scheduled maturity date of the Note.
In addition, during the final 90 days before maturity of the Note, upon
not less than 30 days' prior written notice, Maker may prepay the entire (but
not less than the entire) aggregate principal amount of the Note at the time
outstanding, at the principal amount so prepaid, together with unpaid interest
on the Note accrued to the date fixed for such prepayment and together with
other sums due under this Mortgage and all other documents evidencing or
securing the Note or otherwise pertaining thereto, without premium, unless Payee
has accelerated following an Event of Default as provided below.
The entire unpaid and outstanding aggregate principal amount of the
Note shall mature and become due and payable on the date fixed for prepayment,
together with the applicable premium and interest accrued and unpaid on such
date and together with such other sums due under the Mortgage and all other
documents evidencing or securing the Note or otherwise pertaining thereto.
(B) Except as specifically set forth in this Note and in Section 1.3 of
the Mortgage, this Note may not be prepaid in whole or in part. If, pursuant to
any provision of the Mortgage or otherwise, any principal of this Note shall
become due and payable by declaration of the Payee or acceleration by the Payee
following the occurrence of an Event of Default, the Payee shall be entitled to
receive a premium equal to the greater of:
(i) 10% of the then outstanding principal balance of the Note or
(ii) the sum obtained by multiplying the then outstanding principal
balance of the Note by (x) the difference obtained by
subtracting the yield rate on publicly traded United States
Treasury Securities having the closest matching maturity date
to the maturity date of the Note as such yield rate is
reported in the Wall Street Journal or other similar business
publication of general circulation on the fifth business day
preceding the prepayment date or, if no yield rate on publicly
traded United States Treasury Securities is obtainable, at the
yield rate of the issue most closely equivalent to such United
States Treasury Securities, as determined by Payee in its
reasonable discretion from 6.825% and (y) the number of years
and fraction thereof remaining between the prepayment date and
the scheduled maturity date of the Note.
If such Event of Default occurs on or after the date specified in the
first sentence of subsection (A) above, then in lieu of the premium specified in
this subsection (B), payment of a premium calculated in the manner set forth in
such subsection (A) shall be required.
<PAGE>
SCHEDULE III
PRINCIPAL LOAN SCHEDULE
S-III-1
<PAGE>
<TABLE>
<CAPTION>
LOAN CUT-OFF MORTGAGE MONTHLY NOTE ORIG. TERM REM. TERM
NO. SELLER PROPERTY NAME DATE BALANCE RATE PAYMENT DATE (MOS) (MOS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
23 PCF Del Mar Plaza Shopping Center $18,008,336 7.350% $124,359 4/22/99 120 117
24 PCF 609 Greenwich Street $13,986,928 7.490% $103,368 6/15/99 120 119
25 PCF The Office Center at Ramsey $13,968,884 7.540% $98,274 4/19/99 120 117
27 PCF Pine Ridge Apartments of Durham $11,980,455 6.510% $75,927 5/26/99 120 118
29 PCF Fridley Plus Property $6,594,394 7.900% $50,504 6/10/99 120 119
30 PCF Plymouth Plus Property $5,095,668 7.900% $39,026 6/10/99 120 119
34 PCF Bloomington Distribution Center & StationStore $10,131,388 7.900% $77,592 6/10/99 120 119
35 PCF Indian Ridge Apartments $10,051,719 7.160% $68,149 3/30/99 120 116
38 PCF 849-909 Newark-Jersey City Turnpike $9,840,000 8.280% $74,132 7/6/99 120 120
39 PCF Lucien Pointe $9,974,352 7.520% $70,058 3/26/99 120 116
41 PCF Brooklyn Heights Business Center $8,195,695 7.550% $57,617 6/4/99 120 119
42 PCF Scottsdale Apartments $8,152,816 6.750% $53,185 12/4/98 120 113
43 PCF Parkway Pavilion $7,979,637 7.550% $56,211 3/10/99 120 116
45 PCF Lee's Hill Office $4,403,461 7.930% $32,133 5/18/99 120 118
46 PCF Jackson Square Business Park $1,729,931 7.930% $12,624 5/18/99 120 118
47 PCF Shop's at Lee's Hill $1,258,132 7.930% $9,181 5/18/99 120 118
48 PCF Monticello Village $3,431,990 7.890% $24,932 6/15/99 120 119
49 PCF Monticello Townhouses $1,982,928 7.890% $14,405 6/15/99 120 119
50 PCF Logan Way $1,067,730 7.890% $7,757 6/15/99 120 119
51 PCF Essex House $838,931 7.890% $6,094 6/15/99 120 119
53 PCF Holiday Companies Headquarters $6,654,344 7.900% $50,963 6/10/99 120 119
54 PCF 2495 Boulevard Of The Generals $2,969,032 7.090% $19,973 4/14/99 120 117
55 PCF 160 Rittenhouse Circle $2,122,556 7.090% $14,279 4/14/99 120 117
56 PCF 603 General Washington Avenue $1,467,625 7.090% $9,873 4/14/99 120 117
57 PCF 4330-40 South Valley View Blvd. $4,336,026 7.080% $29,164 3/17/99 120 116
58 PCF 4325 West Tropicana Ave. $1,175,872 7.080% $7,909 3/17/99 120 116
59 PCF 4333 West Tropicana Ave. $720,221 7.080% $4,844 3/17/99 120 116
61 PCF 1233-1259 Reamwood Ave. $5,869,089 6.750% $38,267 1/26/99 120 114
62 PCF 6285 Lookout Road $5,696,907 7.450% $39,660 6/15/99 120 119
67 PCF Northvale Industrial $5,492,037 7.640% $38,985 5/25/99 120 118
68 PCF Diamondback Building $5,489,563 7.350% $37,893 4/16/99 120 117
69 PCF Haywood Plaza Shopping Center $5,277,096 7.500% $37,058 1/7/99 120 114
70 PCF Ultimate Software Group Office Building $5,122,500 7.790% $36,840 7/15/99 120 120
71 PCF Belz Factory Outlet Mall $5,095,303 7.550% $37,855 6/16/99 120 119
72 PCF 200 Forest Drive $5,081,904 7.010% $33,965 2/23/99 120 115
76 PCF CCL Industries $4,868,645 7.430% $33,853 5/27/99 120 118
77 PCF Terrace Gardens Apartments $4,594,461 7.740% $32,923 5/28/99 120 118
79 PCF Highland Ridge Apartments $4,468,393 7.480% $31,263 3/26/99 120 116
81 PCF 219 Rittenhouse Circle $1,624,373 7.090% $10,928 4/14/99 120 117
82 PCF 171 Rittenhouse Circle $1,338,157 7.090% $9,002 4/14/99 120 117
83 PCF 4303 Lewis Road $1,300,985 7.090% $8,752 4/14/99 120 117
84 PCF Citrus Village Shopping Center $4,186,698 7.450% $29,223 2/8/99 120 115
85 PCF Wagner Industries $4,121,825 7.250% $38,340 1/13/99 120 114
86 PCF North Hill Centre $4,095,262 7.150% $32,354 3/25/99 240 236
87 PCF Ocotillo Fiesta $4,026,560 7.230% $27,573 11/30/98 120 112
88 PCF 7 Holland $3,989,555 7.080% $26,580 3/9/99 120 116
89 PCF Oak Run Apartments $3,986,651 7.250% $27,287 1/22/99 120 115
90 PCF 15800 NW 13th Ave $3,795,121 7.490% $26,544 5/25/99 120 118
91 PCF Rite Aid $3,748,038 7.560% $26,375 6/4/99 120 119
92 PCF Eastgate Village Shopping Center $3,734,407 7.100% $25,268 10/13/98 120 111
93 PCF Normandy Manor Apartments $3,694,117 7.170% $25,040 5/20/99 120 118
94 PCF Highland Creste Apartments $3,640,780 7.580% $25,722 3/26/99 120 116
95 PCF 2325 Maryland Road $2,279,798 7.090% $15,337 4/14/99 120 117
96 PCF 701 Willowbrook Lane $1,278,433 7.090% $8,600 4/14/99 120 117
97 PCF 2524 Ford Road $1,449,830 7.090% $9,753 4/14/99 120 117
98 PCF 2554 Ford Road $1,190,965 7.090% $8,012 4/14/99 120 117
99 PCF 247 Rittenhouse Circle $723,203 7.090% $4,865 4/14/99 120 117
100 PCF Marina View $3,297,295 7.000% $21,955 6/9/99 120 119
101 PCF Riverview Village Shopping Center $3,295,730 7.460% $22,984 5/17/99 120 118
102 PCF American Plaza Shopping Center $3,284,317 7.050% $22,066 1/20/99 120 114
104 PCF CCAi Renaissance Centre $3,146,866 8.240% $25,485 6/15/99 120 119
105 PCF Ten Parkway Plaza $3,139,997 7.440% $21,896 2/9/99 120 115
106 PCF Mountain Ridge Business Park $3,098,301 7.420% $21,506 6/4/99 120 119
107 PCF 4296 Albany Street $3,041,998 7.430% $21,180 3/30/99 120 116
108 PCF 130 Wharton Road $1,644,942 7.090% $11,066 4/14/99 120 117
109 PCF 2564 Boulevard Of The Generals $1,368,203 7.090% $9,204 4/14/99 120 117
110 PCF 910 Orlando Avenue $2,993,763 7.500% $22,170 5/20/99 120 118
112 PCF The Weston Road Shoppes $2,875,679 7.840% $21,977 3/5/99 120 116
113 PCF Central Jersey Office and Industrial Park $2,840,578 7.750% $21,527 4/7/99 120 117
114 PCF Hampton Meadows Apartments $2,739,938 7.420% $22,019 5/17/99 240 238
116 PCF Federal Express Warehouse $2,438,481 7.660% $17,400 12/16/98 120 113
117 PCF Shaker Heights Apartments $2,436,631 7.200% $16,562 5/10/99 120 118
118 PCF Foothills Park Plaza $2,319,052 7.530% $16,305 3/16/99 120 116
119 PCF Wampus Avenue Apts. $2,301,112 7.380% $15,962 2/9/99 120 115
120 PCF 6 Corporate Drive $2,241,204 7.300% $15,425 2/24/99 120 115
121 PCF Northlake Promenade $2,097,297 7.480% $14,655 5/20/99 120 118
122 PCF Paddington Station Shopping Center $2,093,448 7.340% $15,301 4/1/99 120 117
123 PCF Clarke American Building $2,044,940 7.670% $14,573 3/18/99 120 116
124 PCF Pembrooke Medical Office $1,899,160 8.040% $13,995 6/4/99 120 119
125 PCF Dobbs Plaza $1,683,520 7.250% $12,288 11/16/98 120 112
$337,702,158
</TABLE>
<TABLE>
<CAPTION>
PREPAYMENT DESCRIPTION (*)
LOAN AMORT. LOCK-
NO. SELLER PROPERTY NAME (MOS) SEASONING OUT DEF YM1 OPEN
<S> <C> <C> <C> <C> <C> <C> <C> <C>
23 PCF Del Mar Plaza Shopping Center 360 3 27 89 4
24 PCF 609 Greenwich Street 300 1 48 68 4
25 PCF The Office Center at Ramsey 360 3 48 68 4
27 PCF Pine Ridge Apartments of Durham 360 2 26 90 4
29 PCF Fridley Plus Property 300 1 25 91 4
30 PCF Plymouth Plus Property 300 1 25 91 4
34 PCF Bloomington Distribution Center & StationStore 300 1 25 91 4
35 PCF Indian Ridge Apartments 360 4 48 68 4
38 PCF 849-909 Newark-Jersey City Turnpike 360 0 24 92 4
39 PCF Lucien Pointe 360 4 28 88 4
41 PCF Brooklyn Heights Business Center 360 1 48 68 4
42 PCF Scottsdale Apartments 360 7 35 81 4
43 PCF Parkway Pavilion 360 4 47 69 4
45 PCF Lee's Hill Office 360 2 24 92 4
46 PCF Jackson Square Business Park 360 2 24 92 4
47 PCF Shop's at Lee's Hill 360 2 24 92 4
48 PCF Monticello Village 360 1 25 88 7
49 PCF Monticello Townhouses 360 1 25 88 7
50 PCF Logan Way 360 1 25 88 7
51 PCF Essex House 360 1 25 88 7
53 PCF Holiday Companies Headquarters 300 1 25 91 4
54 PCF 2495 Boulevard Of The Generals 360 3 48 68 4
55 PCF 160 Rittenhouse Circle 360 3 48 68 4
56 PCF 603 General Washington Avenue 360 3 48 68 4
57 PCF 4330-40 South Valley View Blvd. 360 4 48 68 4
58 PCF 4325 West Tropicana Ave. 360 4 48 68 4
59 PCF 4333 West Tropicana Ave. 360 4 48 68 4
61 PCF 1233-1259 Reamwood Ave. 360 6 47 69 4
62 PCF 6285 Lookout Road 360 1 25 91 4
67 PCF Northvale Industrial 360 2 26 90 4
68 PCF Diamondback Building 360 3 48 68 4
69 PCF Haywood Plaza Shopping Center 360 6 47 69 4
70 PCF Ultimate Software Group Office Building 360 0 48 68 4
71 PCF Belz Factory Outlet Mall 300 1 48 68 4
72 PCF 200 Forest Drive 360 5 48 68 4
76 PCF CCL Industries 360 2 48 68 4
77 PCF Terrace Gardens Apartments 360 2 47 69 4
79 PCF Highland Ridge Apartments 360 4 28 88 4
81 PCF 219 Rittenhouse Circle 360 3 48 68 4
82 PCF 171 Rittenhouse Circle 360 3 48 68 4
83 PCF 4303 Lewis Road 360 3 48 68 4
84 PCF Citrus Village Shopping Center 360 5 47 69 4
85 PCF Wagner Industries 180 6 48 68 4
86 PCF North Hill Centre 240 4 48 188 4
87 PCF Ocotillo Fiesta 360 8 35 81 4
88 PCF 7 Holland 372 4 48 68 4
89 PCF Oak Run Apartments 360 5 47 69 4
90 PCF 15800 NW 13th Ave 360 2 26 90 4
91 PCF Rite Aid 360 1 25 91 4
92 PCF Eastgate Village Shopping Center 360 9 35 81 4
93 PCF Normandy Manor Apartments 360 2 48 68 4
94 PCF Highland Creste Apartments 360 4 28 88 4
95 PCF 2325 Maryland Road 360 3 48 68 4
96 PCF 701 Willowbrook Lane 360 3 48 68 4
97 PCF 2524 Ford Road 360 3 48 68 4
98 PCF 2554 Ford Road 360 3 48 68 4
99 PCF 247 Rittenhouse Circle 360 3 48 68 4
100 PCF Marina View 360 1 25 91 4
101 PCF Riverview Village Shopping Center 360 2 26 90 4
102 PCF American Plaza Shopping Center 360 6 47 70 3
104 PCF CCAi Renaissance Centre 276 1 48 68 4
105 PCF Ten Parkway Plaza 360 5 47 69 4
106 PCF Mountain Ridge Business Park 360 1 25 91 4
107 PCF 4296 Albany Street 360 4 47 69 4
108 PCF 130 Wharton Road 360 3 48 68 4
109 PCF 2564 Boulevard Of The Generals 360 3 48 68 4
110 PCF 910 Orlando Avenue 300 2 48 68 4
112 PCF The Weston Road Shoppes 300 4 48 68 4
113 PCF Central Jersey Office and Industrial Park 300 3 47 69 4
114 PCF Hampton Meadows Apartments 240 2 26 210 4
116 PCF Federal Express Warehouse 360 7 35 81 4
117 PCF Shaker Heights Apartments 360 2 47 69 4
118 PCF Foothills Park Plaza 360 4 49 67 4
119 PCF Wampus Avenue Apts. 360 5 48 72
120 PCF 6 Corporate Drive 360 5 48 68 4
121 PCF Northlake Promenade 360 2 48 68 4
122 PCF Paddington Station Shopping Center 300 3 27 89 4
123 PCF Clarke American Building 360 4 28 88 4
124 PCF Pembrooke Medical Office 360 1 25 91 4
125 PCF Dobbs Plaza 300 8 35 81 4
</TABLE>
<TABLE>
<CAPTION>
CONSISTING OF:
MASTER EXCESS WELLS FARGO JHREF PRIMARY
SERVICING SERVICING EXCESS SERV. EXCESS SERV. SERVICING TRUSTEE
LOAN YM ADM. COST FEE RATE FEE RATE FEE RATE FEE RATE FEE RATE FEE RATE
NO. SELLER PROPERTY NAME FORMULA RATE (bps) (bps) (bps) (bps) (bps) (bps)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
23 PCF Del Mar Plaza Shopping Center N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
24 PCF 609 Greenwich Street N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
25 PCF The Office Center at Ramsey N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
27 PCF Pine Ridge Apartments of Durham N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
29 PCF Fridley Plus Property N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
30 PCF Plymouth Plus Property N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
34 PCF Bloomington Distribution Center
& StationStore N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
35 PCF Indian Ridge Apartments N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
38 PCF 849-909 Newark-Jersey City Turnpike N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
39 PCF Lucien Pointe N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
41 PCF Brooklyn Heights Business Center N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
42 PCF Scottsdale Apartments N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
43 PCF Parkway Pavilion C 6.40 3.00 2.00 2.00 0.00 1.00 0.40
45 PCF Lee's Hill Office B 6.40 3.00 2.00 2.00 0.00 1.00 0.40
46 PCF Jackson Square Business Park B 6.40 3.00 2.00 2.00 0.00 1.00 0.40
47 PCF Shop's at Lee's Hill B 6.40 3.00 2.00 2.00 0.00 1.00 0.40
48 PCF Monticello Village N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
49 PCF Monticello Townhouses N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
50 PCF Logan Way N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
51 PCF Essex House N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
53 PCF Holiday Companies Headquarters N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
54 PCF 2495 Boulevard Of The Generals N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
55 PCF 160 Rittenhouse Circle N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
56 PCF 603 General Washington Avenue N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
57 PCF 4330-40 South Valley View Blvd. N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
58 PCF 4325 West Tropicana Ave. N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
59 PCF 4333 West Tropicana Ave. N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
61 PCF 1233-1259 Reamwood Ave. N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
62 PCF 6285 Lookout Road N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
67 PCF Northvale Industrial N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
68 PCF Diamondback Building N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
69 PCF Haywood Plaza Shopping Center N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
70 PCF Ultimate Software Group
Office Building N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
71 PCF Belz Factory Outlet Mall N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
72 PCF 200 Forest Drive N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
76 PCF CCL Industries N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
77 PCF Terrace Gardens Apartments N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
79 PCF Highland Ridge Apartments N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
81 PCF 219 Rittenhouse Circle N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
82 PCF 171 Rittenhouse Circle N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
83 PCF 4303 Lewis Road N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
84 PCF Citrus Village Shopping Center N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
85 PCF Wagner Industries N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
86 PCF North Hill Centre N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
87 PCF Ocotillo Fiesta N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
88 PCF 7 Holland N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
89 PCF Oak Run Apartments N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
90 PCF 15800 NW 13th Ave N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
91 PCF Rite Aid N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
92 PCF Eastgate Village Shopping Center N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
93 PCF Normandy Manor Apartments N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
94 PCF Highland Creste Apartments N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
95 PCF 2325 Maryland Road N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
96 PCF 701 Willowbrook Lane N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
97 PCF 2524 Ford Road N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
98 PCF 2554 Ford Road N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
99 PCF 247 Rittenhouse Circle N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
100 PCF Marina View N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
101 PCF Riverview Village Shopping Center N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
102 PCF American Plaza Shopping Center N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
104 PCF CCAi Renaissance Centre N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
105 PCF Ten Parkway Plaza N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
106 PCF Mountain Ridge Business Park N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
107 PCF 4296 Albany Street N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
108 PCF 130 Wharton Road N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
109 PCF 2564 Boulevard Of The Generals N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
110 PCF 910 Orlando Avenue N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
112 PCF The Weston Road Shoppes N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
113 PCF Central Jersey Office and
Industrial Park N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
114 PCF Hampton Meadows Apartments N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
116 PCF Federal Express Warehouse N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
117 PCF Shaker Heights Apartments N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
118 PCF Foothills Park Plaza N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
119 PCF Wampus Avenue Apts. N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
120 PCF 6 Corporate Drive N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
121 PCF Northlake Promenade N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
122 PCF Paddington Station Shopping Center N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
123 PCF Clarke American Building N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
124 PCF Pembrooke Medical Office N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
125 PCF Dobbs Plaza N/A 6.40 3.00 2.00 2.00 0.00 1.00 0.40
</TABLE>
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
Each of the following Mortgage Loans is structured with a performance holdback
or letter of credit ("LOC") subject to achievement of certain release
conditions. The amount of the holdback was escrowed, or the letter of credit was
established, for each Mortgage Loan at closing. Although Mortgage Loan Nos. 69,
Haywood Plaza Shopping Center, 76, CCL Industries, and 90, 15800 NW 13th Ave, do
not have defined Outside Dates for Release, their loan balances may be prepaid
if the associated LOCs are not replaced per LOC Agreement terms, or upon an
event of default. Although all Mortgage Loans prohibit voluntary partial
prepayment, the following Mortgage Loans may require partial prepayments as
described.
<TABLE>
<CAPTION>
Mortgage
Loan No. Property Name Release Conditions
- -------- ------------- ------------------
<S> <C> <C>
24 609 Greenwich 1) Base rents increase for current tenant, Gun for Hire, per lease conditions.
2) Tenant delivers to Lender an estoppel certificate indicating that the Lease
is in full force and effect, and there are no defaults under the Mortgage
Loan.
25 The Office Center at Ramsey 1) Borrower has completed and performed or paid for all Tenant Improvements
("TIs") and Leasing Commissions ("LCs") associated with the JDR space.
1) Base rents increase for current tenant, UPS, per lease conditions.
30 Plymouth Plus Property 1) Immediate Repairs are performed per agreement.
34 Bloomington Distribution Center 1) Environmental Remediation is performed per agreement.
& StationStore
48 Monticello Village 1) Immediate Repairs are performed per agreement.
49 Monticello Townhouses 1) Immediate Repairs are performed per agreement.
50 Logan Way 1) Immediate Repairs are performed per agreement.
51 Essex House 1) Immediate Repairs are performed per agreement.
53 Holiday Companies Headquarters 1) Immediate Repairs are performed per agreement.
54 2495 Boulevard of the Generals
61 1233-1259 Reamwood Ave. 1) Seismic Upgrading is performed per agreement.
64-65 Meadow Creek Village Shopping Center 1) Borrower to provide evidence that Blockbuster has accepted leased premises
and Woodlake Village Shopping Center and is paying rent.
2) Lender has received estoppel certificate.
3) Lender's fees and expenses are reimbursed.
68 Diamondback Building 1) Single tenant, Derby Cycle Corp., commences paying full rent.
69 Haywood Plaza Shopping Center 1) Borrower has completed and performed or paid all TIs and LCs associated with
the largest tenant space, TJX.
</TABLE>
<TABLE>
<CAPTION>
Escrowed Holdback or
Letter of Credit Outside Date Prepayment
Amount for Release Premium Provisions
------ ----------- ------------------
<S> <C> <C>
$3,100,000 03/27/00 Yield Maintenance
$270,000 10/31/03 Yield Maintenance
$235,000 10/31/99 Yield Maintenance
$16,875 12/10/99 Yield Maintenance
$12,500 12/10/99 Yield Maintenance
$34,797 06/01/00 Yield Maintenance
$17,693 06/01/00 Yield Maintenance
$8,847 06/01/00 Yield Maintenance
$3,539 06/01/00 Yield Maintenance
$49,875 12/10/99 Yield Maintenance
$19,375 01/01/00 Yield Maintenance
$170,000 02/01/00 Yield Maintenance
$100,000 09/30/99 Yield Maintenance
$177,000 08/15/99 Yield Maintenance
$150,000 N/A Yield Maintenance
</TABLE>
II-16
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Mortgage
Loan No. Property Name Release Conditions
- -------- ------------- ------------------
<S> <C> <C>
2) Lender has received architect certificate, fully
executed lease(s), and lessee's estoppel certificate(s).
1) Borrower has completed and performed the Ongoing
Repairs and has paid all associated costs.
2) Lender approves of all such repairs.
71 Belz Factory Outlet Mall 1) Immediate Repairs are performed per agreement.
72 200 Forest Drive 1) Environmental Remediation is performed per agreement.
2) Immediate Repairs are performed per agreement.
76 CCL Industries 1) Lender has received lessee's estoppel certificate(s).
and confirmation that specified work was completed, and
lessee has given unconditional acceptance of the improvements.
79 Highland Ridge Apartments 1) Immediate Repairs are performed per agreement.
90 15800 NW 13th Ave 1) Borrower has completed and performed or paid for
Capital Expenses and TI/LCs that occur throughout the term
of the Mortgage Loan per agreements.
92 Eastgate Village Shopping Center 1) Borrower has completed and performed or paid for
all TIs associated with the build-out of a vacant space to
a vanilla box condition.
93 Normandy Manor Apartments 1) Immediate Repairs are performed per agreement.
94 Highland Creste Apartments 1) Immediate Repairs are performed per agreement.
95 2325 Maryland Road 1) Immediate Repairs are performed per agreement.
101 Riverview Village Shopping Center 1) Immediate Repairs are performed per agreement.
102 American Plaza Shopping Center 1) Immediate Repairs are performed per agreement.
107 4296 Albany Street 1) Immediate Repairs are performed per agreement.
110 910 Orlando Avenue 1) Immediate Repairs are performed per agreement.
112 The Weston Road Shoppes 1) Lady Fitness Center takes occupancy and commences
paying rent per the executed lease.
113 Central Jersey Office and 1) Immediate Repairs are performed per agreement.
Industrial Park
124 Pembrooke Medical Office 1) Immediate Repairs are performed per agreement.
</TABLE>
All yield maintenance premiums indicated above are to be paid by the Borrower.
<TABLE>
<CAPTION>
Escrowed Holdback or
Letter of Credit Outside Date Prepayment
Amount for Release Premium Provisions
-------- ------------ -------------------
<S> <C> <C>
$75,000 N/A Yield Maintenance
$17,600 01/01/00 Yield Maintenance
$25,000 05/01/99 Yield Maintenance
$100,000 12/31/01 Yield Maintenance
$48,750 N/A Yield Maintenance
$26,500 11/01/99 Yield Maintenance
$150,000 N/A Yield Maintenance
$22,500 12/01/99 Yield Maintenance
$27,438 11/01/99 Yield Maintenance
$55,780 11/01/99 Yield Maintenance
$17,750 01/01/00 Yield Maintenance
$108,000 06/01/00 Yield Maintenance
$13,750 01/01/00 Yield Maintenance
$58,375 03/30/00 Yield Maintenance
$51,813 05/01/00 Yield Maintenance
$461,500 09/02/99 Yield Maintenance
$18,600 05/01/01 Yield Maintenance
$9,375 12/31/99 Yield Maintenance
</TABLE>
All yield maintenance premiums indicated above are to be paid by the Borrower.
II-17
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
The "Prepayment Code" includes the number of loan payments from the first Due
Date (after the initial partial month interest only payment date, if any) to the
stated maturity. "DEF" represents defeasance. "YM1" represents the greater of
yield maintenance and 1%. "Open" represents the number of payments, including
the maturity date, at which principal prepayments are permitted without payment
of a prepayment premium. For each Mortgage Loan, the number set forth under a
category of "Prepayment Code" represents the number of payments in the Original
Term to Maturity for which such provision applies.
II-18
<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
Mortgage Loans with associated Yield Maintenance Prepayment Premiums are
categorized according to unique Yield Maintenance formulas. There are four
different Yield Maintenance formulas represented by the loans in the subject
Mortgage Loan pool. The different formulas are reference by the letters "A",
"B", "C" and "D". Summaries for the four formulas are listed below:
YIELD MAINTENANCE FORMULAS
The following are summaries of yield maintenance provision, or formulas,
contained in the related promissory note for certain of the mortgage loans.
There are four unique yield maintenance formulas represented by the mortgage
loans, each labeled as "A", "B", "C" or "D". Each Mortgage Loan, which provides
for a yield maintenance formula, references the applicable formula printed
below in the column titled "YM Formula".
A On or after the end of the applicable Loan Year (as hereinafter
defined), on any scheduled payment date and subject to giving Payee not less
than thirty (30) not more than ninety (90) days' prior written notice specifying
the scheduled payment date on which prepayment is to be made (the "Prepayment
Date"). Maker may prepay the entire principal amount together with any and all
accrued interest and other sums due under the Loan Documents, and subject to
payment of a prepayment premium equal to the greater of:
(a) the positive amount, if any, equal to (i) the sum of the
present values of all scheduled payments due under the Note
from the Prepayment Date to and including the Maturity Date,
minus (ii) the principal balance of the Note immediately prior
to such prepayment; or
(b) one percent (1.00%) of the principal balance of the Note
immediately prior to such prepayment.
All present values shall be calculated as of the Prepayment Date, using
a discount rate, compounded monthly, equal to the yield rate, converted to its
monthly equivalent of the United States Treasury Security having the closest
maturity date to the Maturity Date of the Note as established in the Wall Street
Journal or other business publication of general circulation five (5) business
days before the Prepayment Date.
In the event that the yield rate on publicly traded United States
Treasury Securities is not obtainable, then the nearest equivalent issue or
index shall be selected, at Payee's reasonable determination, and used to
calculate the prepayment premium.
The loan will be open to prepayment without premium during the last
ninety (90) days of the term of the loan. If any notice of prepayment is given,
the principal balance of the loan and the other sums required pursuant to this
Section 2 shall be due and payable on the Prepayment Date, unless Maker provides
written notice to Payee that it is revoking said prepayment notice no later than
five (5) business days prior to the Prepayment Date.
- --------------------------------------------------------------------------------
Provided no default exists under the Loan Documents, the above premium
shall not be applicable to a prepayment resulting from Payee's election to
require insurance loss proceeds or condemnation awards to be applied to a
payment of principal.
- --------------------------------------------------------------------------------
No partial prepayment shall be allowed.
The Loan Year is defined as any twelve month period commencing with the
date on which the first monthly installment is due or any anniversary thereof.
- --------------------------------------------------------------------------------
NOTE: For Mortgage Loan No. 30, Kings Hill Industrial Center, the paragraph
highlighted above should be substituted by the following language:
The above premium shall not be applicable to a prepayment resulting
from Payee's election to require insurance loss proceeds or condemnation awards
to be applied to a payment of principal.
- --------------------------------------------------------------------------------
B Loan Prepayment. Borrower may not prepay any principal of the Note
prior to the Maturity Date, except that after the Lockout Date, Borrower may
prepay the Loan, upon thirty (30) days' prior written notice to the Lender, in
full, but not paid, except as allowed pursuant to paragraph 42 of the Mortgage,
by paying all principal and interest to the date of prepayment, along with all
other Indebtedness then due, and (subject to the provisions in the Mortgage
regarding the disposition of casualty and condemnation proceeds) upon the
payment of a "Make Whole Premium." The Make Whole Premium shall be the greater
of one percent (1%) of the principal amount to be prepaid or a premium
calculated as provided in subparagraphs (i) and (iv) below:
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<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
(i) Determine the "Reinvestment Yield." The Reinvestment Yield
will be equal to the yield on the U.S. Treasury Issue
("Primary Issue") published one week prior to the date of
prepayment and converted to an equivalent monthly compounded
nominal yield.
* At this time there is not a U.S. Treasury Issue for this prepayment period. At
the time of prepayment, Lender shall select on its sole and absolute discretion
a U.S. Treasury Issue with similar remaining time to maturity as the Note.
(ii) Calculate the "Present Value of the Loan." The Present Value
of the Loan is the present value of the payments to be made in
accordance with the Note (all installment payments and any
remaining payment due on the Maturity Date) discounted at the
Reinvestment Yield for the number of months remaining from the
date of prepayment to the Maturity Date.
(iii) Subtract the amount of the prepaid proceeds from the Present
Value of the Loan as of the date of prepayment. Any resulting
positive differential shall be the premium.
(iv) In the event the Loan is prepaid on or after that date which
is three (3) months prior to the Maturity Date, no Make Whole
Premium shall be due.
C Loan Prepayment. Borrower may not prepay any principal of the Note
prior to the Maturity Date, except that after the Lockout Date, Borrower may
prepay the Loan, upon thirty (30) days' prior written notice to the Lender, in
full, but not in part, by paying all principal and interest to the date of
prepayment, along with all other Indebtedness then due, and (subject to the
provisions in the Mortgage regarding the disposition of casualty and
condemnation proceeds) upon the payment of a "Make Whole Premium." The Make
Whole Premium shall be the greater of one percent (1%) of the principal amount
to be prepaid or a premium calculated as provided in subparagraphs (i) and (iii)
below:
(i) Determine the "Reinvestment Yield." The Reinvestment Yield
will be equal to the yield on the * U.S. Treasury Issue
("Primary Issue") published one week prior to the date of
prepayment and converted to an equivalent monthly compounded
nominal yield. In the event there is no market activity
involving the Primary Issue at the time of prepayment, the
Lender shall choose a comparable Treasury Bond, Note or Bill
("Secondary Issue") which the Lender reasonably deems to be
similar to the Primary Issue's characteristics (i.e., rate,
remaining time to maturity, yield).
* At this time there is not a U.S. Treasury Issue for this prepayment
period. At the time of prepayment, Lender shall select a U.S. Treasury
Issue with similar remaining time to maturity as the Note.
(ii) Calculate the "Present Value of the Loan." The Present Value
of the Loan is the present value of the payments to be made in
accordance with the Note (all installment payments and any
remaining payment due on the Maturity Date) discounted at the
Reinvestment Yield for the number of months remaining from the
date of prepayment to the Maturity Date.
(iii) Subtract the amount of the prepaid Indebtedness from the
Present Value of the Loan as of the date of prepayment. Any
resulting positive differential shall be the premium.
(iv) In the event the Loan is prepaid on or after that date which
is three (3) months prior to the Maturity Date, no Make Whole
Premium shall be due.
(v) In the event an Event of Default and acceleration occur, the
Make Whole Premium shall be due and payable.
D (A) On any Installment Payment Date on or after October 1, 2004, upon
not less than 30 nor more than 90 days' prior written notice to the Payee, the
Maker may, at its option, prepay the entire (but not less than the entire)
aggregate principal amount of this Note, at the principal amount so prepaid,
together with unpaid interest on the Note accrued to the date fixed for such
prepayment, plus a premium, unless all or any part of the principal of the Note
has become due and payable by declaration or acceleration following an Event of
Default in which event the premium shall be as provided in subsection (B), equal
to the greater of:
(i) 1% of the then outstanding principal balance of the Note or
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<PAGE>
(*) FOOTNOTES TO MORTGAGE LOAN SCHEDULE
(ii) the sum obtained by multiplying the then outstanding principal
balance of the Note by (x) the difference obtained by
subtracting the yield rate on publicly traded United States
Treasury Securities having the closest matching maturity date
to the maturity date of the Note as such yield rate is
reported in the Wall Street Journal or other similar business
publication of general circulation on the fifth business day
preceding the prepayment date or, if no yield rate on publicly
traded United States Treasury Securities is obtainable, at the
yield rate of the issue most closely equivalent to such United
States Treasury Securities, as determined by Payee in its
reasonable discretion, from 6.825% and (y) the number of years
and fraction thereof remaining between the prepayment date and
the scheduled maturity date of the Note.
In addition, during the final 90 days before maturity of the Note, upon
not less than 30 days' prior written notice, Maker may prepay the entire (but
not less than the entire) aggregate principal amount of the Note at the time
outstanding, at the principal amount so prepaid, together with unpaid interest
on the Note accrued to the date fixed for such prepayment and together with
other sums due under this Mortgage and all other documents evidencing or
securing the Note or otherwise pertaining thereto, without premium, unless Payee
has accelerated following an Event of Default as provided below.
The entire unpaid and outstanding aggregate principal amount of the
Note shall mature and become due and payable on the date fixed for prepayment,
together with the applicable premium and interest accrued and unpaid on such
date and together with such other sums due under the Mortgage and all other
documents evidencing or securing the Note or otherwise pertaining thereto.
(B) Except as specifically set forth in this Note and in Section 1.3 of
the Mortgage, this Note may not be prepaid in whole or in part. If, pursuant to
any provision of the Mortgage or otherwise, any principal of this Note shall
become due and payable by declaration of the Payee or acceleration by the Payee
following the occurrence of an Event of Default, the Payee shall be entitled to
receive a premium equal to the greater of:
(i) 10% of the then outstanding principal balance of the Note or
(ii) the sum obtained by multiplying the then outstanding principal
balance of the Note by (x) the difference obtained by
subtracting the yield rate on publicly traded United States
Treasury Securities having the closest matching maturity date
to the maturity date of the Note as such yield rate is
reported in the Wall Street Journal or other similar business
publication of general circulation on the fifth business day
preceding the prepayment date or, if no yield rate on publicly
traded United States Treasury Securities is obtainable, at the
yield rate of the issue most closely equivalent to such United
States Treasury Securities, as determined by Payee in its
reasonable discretion from 6.825% and (y) the number of years
and fraction thereof remaining between the prepayment date and
the scheduled maturity date of the Note.
If such Event of Default occurs on or after the date specified in the
first sentence of subsection (A) above, then in lieu of the premium specified in
this subsection (B), payment of a premium calculated in the manner set forth in
such subsection (A) shall be required.
<PAGE>
SCHEDULE IV
LIST OF ESCROW ACCOUNTS NOT CURRENTLY
ELIGIBLE ACCOUNTS
NONE
S-IV-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
<S> <C> <C>
EXHIBIT A-1 [FORM OF CLASS A-1 CERTIFICATE]..........................................................A-1-1
EXHIBIT A-2 [FORM OF CLASS A-2 CERTIFICATE]..........................................................A-2-1
EXHIBIT A-3 [FORM OF CLASS B CERTIFICATE]............................................................A-3-1
EXHIBIT A-4 [FORM OF CLASS C CERTIFICATE]............................................................A-4-1
EXHIBIT A-5 [FORM OF CLASS D CERTIFICATE]............................................................A-5-1
EXHIBIT A-6 [FORM OF CLASS E CERTIFICATE]............................................................A-6-1
EXHIBIT A-7 [FORM OF CLASS F CERTIFICATE]............................................................A-7-1
EXHIBIT A-8 [FORM OF CLASS G CERTIFICATE]............................................................A-8-1
EXHIBIT A-9 [FORM OF CLASS H CERTIFICATE]............................................................A-9-1
EXHIBIT A-10 [FORM OF CLASS J CERTIFICATE]...........................................................A-10-1
EXHIBIT A-11 [FORM OF CLASS K CERTIFICATE]...........................................................A-11-1
EXHIBIT A-12 [FORM OF CLASS L CERTIFICATE]...........................................................A-12-1
EXHIBIT A-13 [FORM OF CLASS M CERTIFICATE]...........................................................A-13-1
EXHIBIT A-14 [FORM OF CLASS N CERTIFICATE]...........................................................A-14-1
EXHIBIT A-15 [FORM OF CLASS O CERTIFICATE]...........................................................A-15-1
EXHIBIT A-16 [FORM OF CLASS P CERTIFICATE]...........................................................A-16-1
EXHIBIT A-17 [FORM OF CLASS R-I CERTIFICATE].........................................................A-17-1
EXHIBIT A-18 [FORM OF CLASS R-II CERTIFICATE]........................................................A-18-1
EXHIBIT A-19 [FORM OF CLASS R-III CERTIFICATE].......................................................A-19-1
EXHIBIT A-20 [FORM OF CLASS X CERTIFICATE]...........................................................A-20-1
EXHIBIT B-1 FORM OF INITIAL CERTIFICATION OF TRUSTEE.................................................B-1-1
EXHIBIT B-2 FORM OF FINAL CERTIFICATION OF TRUSTEE...................................................B-2-1
EXHIBIT C FORM OF REQUEST FOR RELEASE................................................................C-1
EXHIBIT D-1 FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED
CERTIFICATES.............................................................................D-1-1
-i-
<PAGE>
EXHIBITS
(CONT'D.)
EXHIBIT D-2A FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED
CERTIFICATES............................................................................D-2A-1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A......................................................D-2A-3
[For Transferees Other Than Registered Investment Companies]..................................................D-2A-3
ANNEX 2 TO
EXHIBIT D-2A QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A................................D-2A-6
EXHIBIT D-2B FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF DEFINITIVE PRIVATELY
OFFERED CERTIFICATES....................................................................D-2B-1
EXHIBIT D-3A FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF INTERESTS IN BOOK-ENTRY
PRIVATELY OFFERED CERTIFICATES..........................................................D-3A-1
EXHIBIT D-3B FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF INTERESTS IN BOOK-ENTRY
PRIVATELY OFFERED CERTIFICATES..........................................................D-3B-1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A......................................................D-3B-4
[For Transferees Other Than Registered Investment Companies]..................................................D-3B-4
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A......................................................D-3B-7
EXHIBIT E-1 FORM OF TRANSFER AFFIDAVIT AND AGREEMENT FOR TRANSFERS OF REMIC RESIDUAL
CERTIFICATES.............................................................................E-1-1
EXHIBIT E-2 FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES..............E-2-1
EXHIBIT F FORM OF REGULATION S CERTIFICATE...........................................................F-1
EXHIBIT G FORM OF PRIMARY SERVICING AGREEMENT........................................................G-1
EXHIBIT H FORM OF EXCHANGE CERTIFICATION.............................................................H-1
EXHIBIT I FORM OF EUROCLEAR OR CEDEL CERTIFICATE.....................................................I-1
EXHIBIT J LIST OF LOANS TO WHICH EXCESS SERVICING FEES ARE PAID......................................J-1
EXHIBIT K-1 FORM OF MORTGAGE LOAN PURCHASE AGREEMENT I...............................................K-1-1
EXHIBIT K-2 FORM OF MORTGAGE LOAN PURCHASE AGREEMENT II..............................................K-2-1
-ii-
<PAGE>
EXHIBITS
(CONT'D.)
EXHIBIT K-3 FORM OF MORTGAGE LOAN PURCHASE AGREEMENT III.............................................K-3-1
EXHIBIT L FORM OF INSPECTION REPORT..................................................................L-1
EXHIBIT M FORM OF MONTHLY CERTIFICATEHOLDER REPORT...................................................M-1
EXHIBIT N FORM OF ANNUAL REPORT......................................................................N-1
EXHIBIT O FORM OF SPECIAL SERVICER MONTHLY REPORT....................................................O-1
EXHIBIT P Reserved...................................................................................P-1
EXHIBIT Q FORM OF MORTGAGE LOAN INFORMATION..........................................................Q-1
EXHIBIT R Reserved...................................................................................R-1
EXHIBIT S-1 FORM OF POWER OF ATTORNEY FOR MASTER SERVICER............................................S-1-1
EXHIBIT S-2 FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER...........................................S-2-1
EXHIBIT T PROCEDURES FOR CALCULATING DEBT SERVICE COVERAGE RATIO.....................................T-1
EXHIBIT U ASSIGNMENT AND ASSUMPTION SUBMISSION TO SPECIAL SERVICER...................................U-1
SCHEDULE I JHREF LOAN SCHEDULE......................................................................S-I-1
SCHEDULE II MSMC LOAN SCHEDULE......................................................................S-II-1
SCHEDULE III PRINCIPAL LOAN SCHEDULE................................................................S-III-1
SCHEDULE IV LIST OF ESCROW ACCOUNTS NOT CURRENTLY ELIGIBLE ACCOUNTS.................................S-IV-1
</TABLE>
-iii-
